Citation: R. L. v Minister of Employment and Social Development, 2019 SST 1249
Tribunal File Number: GP-18-2044 BETWEEN:
R. L.
Appellant (Claimant) and
Minister of Employment and Social Development
Minister
SOCIAL SECURITY TRIBUNAL DECISION
General Division – Income Security Section
Decision by: Pierre Vanderhout Teleconference hearing on: September 16, 2019
DECISION
[1] The Claimant is entitled to a Canada Pension Plan (“CPP”) disability pension, to be paid between December 2017 and July 2019 only.
OVERVIEW
[2] The Claimant is 57 years old and has worked in retail settings for all of her working life. She started as a cashier and rose through the ranks to hold retail management positions. She worked most recently on July 23, 2016, as the assistant manager of a X store. The Minister received her application for the disability pension on September 8, 2017. At the time, her primary diagnosis was giant cell arteritis, but that was later changed to non-arteritic ischemic optic neuropathy. She now also appears to have a conversion disorder. The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.
[3] To qualify for a CPP disability pension, the Claimant must meet the requirements set out in the CPP. More specifically, she must be found disabled (as defined in the CPP) on or before the end of the minimum qualifying period (“MQP”). The calculation of the MQP is based on the Claimant’s contributions to the CPP. I find the Claimant’s MQP to be December 31, 2020.
PRELIMINARY MATTERS
[4] At the start of the hearing, the Claimant was advised that both her late medical report from Dr. Saad (indexed as “GD6”) and the Minister’s submissions on that report (indexed as “GD7”) would be received by the Tribunal.
[5] Most of the oral evidence was given by X (the Claimant’s sister), as the Claimant’s ability to communicate orally was severely limited by what appears to be a conversion disorder.1 It could take her 20 seconds or more to say a single word, despite intense effort. Her sister was
1 GD6-1. This hearing was first scheduled for July 9, 2019, but could not proceed because of the Claimant’s
profound speech issues. She was unaware that she could bring support to the hearing. The hearing was adjourned to allow her to follow up her speech issue and arrange for her sister to attend.
familiar enough with the Claimant’s situation to provide reliable evidence. The Claimant’s sister was also able to “decode” what limited speech the Claimant had.
ISSUES
[6] Do the Claimant’s conditions result in the Claimant having a severe disability by the date of the hearing?
[7] If so, was the Claimant’s disability also prolonged by the date of the hearing?
ANALYSIS
[8] Disability is defined as a physical or mental disability that is severe and prolonged.2 A
person is considered to have a severe disability if she is incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death. A person must prove on a balance of
probabilities that her disability meets both parts of the test. If the Claimant meets only one part, she does not qualify for disability benefits.
Did the Claimant have a severe disability by the date of the hearing?
[9] For the reasons that follow, I find that the Claimant had a severe disability by the date of the hearing. I also find that she has had this severe disability since August 28, 2017.
[10] I must assess the Claimant’s condition in its totality, which means I must consider all of the possible impairments, not just the biggest or main impairment.3 This is important because the Claimant now appears to have both a conversion disorder and a neuropathic condition.
[11] I must also assess the severe part of the test in a real-world context.4 This means that when deciding whether a person’s disability is severe, I must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. In this case, the Claimant was 57 years old at the hearing date. She usually speaks English fluently. Although her
2 Paragraph 42(2)(a) of the Canada Pension Plan 3Bungay v. Canada (A.G.), 2011 FCA 47 4Villani v. Canada (A.G.), 2001 FCA 248
conversion disorder severely limited her capacity to speak English at the hearing, she still appeared to have perfect comprehension.5 She has a Grade 12 education, in addition to a three-year business administration diploma. She has extensive retail management experience. Before attending college, she worked as a cashier. She then had retail positions of increasing
responsibility, including managing supermarkets. She was most recently the assistant manager of a X store. She has also taken many training programs in areas such as human resources,
workplace safety, and occupational health. Without considering her medical conditions, she would be well suited for a variety of management and non-management roles in a retail setting. [12] This appeal is complicated by shifting diagnoses and relatively scarce medical
documentation. The original diagnosis of giant cell arteritis was changed to non-arteritic
ischemic optic neuropathy, although the Claimant also has other conditions. There are sometimes long gaps between medical reports. I do not think this was deliberate: I accept that the Claimant had been handling matters herself and failed to understand the importance of filing evidence to support her claim.
The Claimant’s condition on August 28, 2017
[13] Both the Claimant and Dr. Paul Ziter (Family Physician) completed documentation in support of her CPP disability application on August 28, 2017. At the time, Dr. Ziter only
provided a diagnosis of giant cell arteritis, which was later ruled out by Dr. Colev. However, Dr. Ziter reported symptoms including fatigue, headaches, blurred vision, and left-sided weakness. He found the Claimant totally disabled and unable to work due to her symptoms.6
[14] The Claimant reported severe headaches with a loss of vision in her left eye and a haze in her right eye. She felt numb down the left side of her face, neck, and body. She felt spasms, and also reported shaky hands, erratic breathing, shortness of breath with walking, weakness, confusion when speaking, drooling, and feeling pressure inside her head. She had to lie down after sitting for an hour, and had to hold on to something while standing. She dropped
“everything”. She had memory and concentration issues. Pain made her confusion worse. She
5 GD6-1
slept only 2-3 hours at a time, and also slept in the afternoon. She could not drive, because of her vision issues, and had problems with bright lighting.7
[15] I find that the Claimant’s symptoms in August 2017 left her “incapable regularly of pursuing a substantially gainful occupation”. This would apply to any kind of work, not just her demanding job as an assistant store manager. Although the giant cell arteritis diagnosis was later changed, the label is less important than the combined effect of her symptoms on her ability to work. However, I am not persuaded that she was continuously severely disabled from her claimed disability date of July 2016 to August 2017. Her initial symptoms were largely vision-related and accompanied by headaches. She stopped working in July 2016. After seeing a neurologist, Dr. Saad (Internal Medicine) treated her in September and October 2016. Dr. Saad made little or no mention of any weakness: he focused on the headaches and vision issues.8 [16] There is no further documentation until May 2017, when Dr. Saad said she had improved since her initial diagnosis. However, Dr. Saad also recorded new symptoms that included
cognitive slowing, exhaustion with exertion, and weakness and shakiness in her left arm and leg.9 In June 2017, Dr. Saad said the Claimant was “about the same”, but still had headaches, pain, and weakness in her left arm and hand. She felt spasms and would then drop things.10 These reports from Dr. Saad show the gradual emergence of new symptoms that would
ultimately establish a severe disability by August 2017. However, her overall condition was not worsening. As the impact on her work capacity was not fully explored and discussed until August 2017, I am not persuaded that she was severely disabled before then.
The Claimant’s symptoms have continued to the hearing date
[17] In September 2018, Dr. Saad said the Claimant was feeling miserable. She felt almost as bad as she did before she started any form of treatment. She had almost no energy, reporting lethargy and fatigue. She was becoming very depressed and was emotional during the
appointment. She found it hard to concentrate. Non-arteritic ischemic optic neuropathy replaced
7 GD2-84 to GD2-85
8 GD2-64 to GD2-67 9 GD2-68 to GD2-69 10 GD2-71 to GD2-72
her initial diagnosis of giant cell arteritis. A further hospital admission was discussed.11 Shortly before that appointment with Dr. Saad, the Claimant said she faced more challenges and had not improved since August 2017. The methotrexate treatment made left her weak and nauseous, and any activity required subsequent rest.12
[18] In July 2019, Dr. Saad said the Claimant had had speech difficulties since at least June 2019, but appeared to have perfect comprehension. She was tearful and cried. Dr. Saad there was no medical reason for the speech difficulties, and her symptoms were more consistent with a conversion disorder.13 This is a form of somatic disorder where physical symptoms similar to a
neurological disorder develop, but there is no actual neurological disorder. Examples of such symptoms are weakness, numbness, and loss of speech.14 The Claimant has all of these. [19] Oral evidence confirmed that the Claimant’s symptoms and limitations continued and even expanded over the past two years. Her vision has not been restored and her headaches make her want to squint or close her eyes. She has not driven for some time. She has a lot of body pain: it “shuts her down and she has to go to bed”. She sleeps during the day, and has interrupted sleep at night. Touching her skin hurts. Pain increases her speech issues. Doing minor tasks is exhausting. She had to give up her dog because she could not take it for even a small walk. Her body has swollen to twice its former size, although some of her swelling may be linked to her diabetes. Her feet, arms, and hands swell and then become numb. Surgery to remove nodes from her breast was apparently aborted because she stopped breathing.
[20] The Claimant gets sick if she is out in the public: she seems to have no resistance to viral conditions. She ended up in Emergency in December 2018 with viral meningitis, and had a spinal tap procedure. As she feels vulnerable to viral conditions, she avoids public contact during the winter. She attended her family Christmas in 2018 by video.
[21] I am satisfied that the Claimant is still incapable regularly of pursuing a substantially gainful occupation, and has been since August 2017. Even disregarding her current speech
11 GD3-1 to GD3-2 12 GD1-1
13 GD6-1
14 The Mayo Clinic provides an overview of conversion disorder at
problems, the combined effect of issues such as fatigue, headaches, pain, poor concentration, and lethargy are incompatible with the type of work she could do in the “real world”. While she has not yet received any treatment for a conversion disorder, this does not affect my finding of severity. I cannot blame her for not treating a condition that had not been definitively diagnosed. The lack of treatment for a conversion disorder could, however, be relevant in assessing whether her disability is also prolonged. Before considering whether her disability is prolonged, I would like to address an issue that the Minister heavily stressed.
[22] The Minister suggests that many of the Claimant’s objective conditions fail to establish severity. For example, the Minister pointed out that the Claimant still had functional vision, had no significant neurological findings, and showed little in tests such as blood work and imaging. However, there are two problems with this approach. Firstly, as noted, I must consider the combined impact of her conditions. Secondly, a conversion disorder will not give objective physical findings. As a result, such submissions do not affect my finding of severity.
Was the Claimant’s disability also prolonged?
[23] There has been no suggestion that the Claimant’s conditions will result in her death. As a result, her disability is prolonged if it is likely to be long continued and of indefinite duration. [24] Unfortunately, most of the medical documents predate the most recent diagnoses. Dr. Ziter’s August 2017 prognosis, based on a diagnosis of giant cell arteritis (ruled out in 2018), was that the Claimant would be symptomatic for six to twelve months. The conversion disorder diagnosis, which may explain many of her symptoms, is even more recent. It is only mentioned in Dr. Saad’s July 2019 report. In fact, the Claimant’s sister said even this was not necessarily a final diagnosis. There is still one test to go: nerve testing was set for two days after the hearing. [25] As the diagnosis was still not quite finalized, the Claimant’s sister said none of the specialists had offered an updated prognosis yet. If she does in fact have a conversion disorder, as it appears she does, she expects to start treatment with a psychologist soon.
[26] The Claimant believes that her condition has worsened since she stopped working. Up until now, however, treatment has focused on physical issues and she has not received any
treatment for a conversion disorder. As a result, I cannot place much weight on what has happened in the past.
[27] Ultimately, the burden is on the Claimant to show that her disability is also prolonged. She must prove this “on a balance of probabilities”. Right now, with a brand new diagnosis about to be confirmed, I cannot currently say that her disability will be long continued and of indefinite duration. As a result, I cannot find that her disability is currently prolonged.
[28] However, this does not mean that the Claimant’s disability was never prolonged. Although disability pensions are usually not awarded for closed periods, there have been some very narrow exceptions. In 2005, the Federal Court of Appeal said pensions for closed periods should only be granted where the medical opinion before the prescribed treatment does not clearly show the likelihood of the applicant’s recovery and her subsequent ability to work.15 For example, the Pension Appeals Board made a closed period finding in a case where, as far as anyone could predict at the relevant time, the disability would likely be long continued and of indefinite duration.16 This is exactly what happened with the Claimant up to July 2019. Until Dr. Saad’s diagnosis of a probable conversion disorder, mental health treatment does not appear to have been seriously considered and there appeared to be little hope of recovery in the foreseeable future. On a balance of probabilities, I therefore find that her disability was likely to be long continued and of indefinite duration from August 2017 until July 2019.
CONCLUSION
[29] The Claimant had a severe and prolonged disability in August 2017. Payments start four months after the date of disability, as of December 2017.17 However, her disability was no longer prolonged in July 2019, when a new provisional diagnosis was made. As a result, she is entitled to a CPP disability pension for a closed period starting in December 2017 and continuing until July 2019. As her MQP date is not until December 2020, she would still have some time to bring another application if she does not improve despite getting appropriate treatment.
15Canada (Minister of Human Resources Development) v. Henderson, 2005 FCA 309
16 Board decisions are non-binding but persuasive. This finding was in MHRD v. Upshaw, (2000) CP 7832. 17 Section 69 of the Canada Pension Plan
[30] The appeal is allowed in part.
Pierre Vanderhout Member, General Division - Income Security
