Part 3 - Canada Pension Plan Disability Benefits

When is a disability "prolongued"?

Once the minister has established that an applicant meets the minimum qualifying period (MQP), he or she goes on to determine whether the applicant’s disability is severe and prolonged, as defined under section 42(2)(a) of the Canada Pension Plan Act. When is a disability considered prolonged?

Section 42(2)(a)(ii) states:
“a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death.”

A disability will be considered prolonged, therefore, only if it is either (a) “long continued and of indefinite duration”; or (b) “likely to result in death.” Of these two tests for “prolonged,” the second is the most straightforward. If the medical condition is likely to result in death, such as some forms of cancer or AIDS, then the condition will be considered prolonged. The more difficult task is determining what “long continued” and “of indefinite duration” mean.

To find the answer to this question, let’s review some past decisions of the Pension Appeals Board (PAB). Published PAB decisions can be found in the Canadian Employment Benefits & Pension Guide Reports, published by CCH Canadian Ltd. (cited here as CCH). CCH publishes various decisions in which the PAB has addressed a number of important issues under the legislation, including the interpretation of key sections of the act.

The Pension Appeals Board has refused to define “prolonged” as any specific length of time. However, the term “long continued” implies a condition that is more than transitory.

Whether or not a disability is prolonged will always depend on the particular facts of each case. Those facts must reveal, at the very least, an element of uncertainty in the duration of the condition (see Minister of National Health & Welfare v. George Beaulne [1982], #8888, CCH, pages 6597 - 98). The purpose of the legislation is not to provide compensation during the period of recovery from an injury. Rather, the question that we should ask is whether the applicant has a medical condition that prevents him or her from performing a substantially gainful occupation now, and that is likely to persist for an indefinite period of time (Minister of Human Resources Development v. Josephine C. Scott [1998], #8716, CCH, pages 6397 - 98).

In Ann Lauzon v. Minister of National Health & Welfare (1991), #9202, CCH, pages 6203 - 06, the PAB held that to establish that a disability is prolonged, the medical prognosis at the time of treatment must be unable to project whether the applicant will, within a foreseeable and reasonable time, recover enough to be able to pursue or engage in some form of work, or substantially gainful employment. In other words, if a return to the workforce, in any capacity, within a reasonable time, is medically uncertain, then the disability may be considered prolonged (page 6204). If, on the other hand, the medical prognosis is that the person will be able to return to the work force within a reasonably foreseeable time, then the disability cannot be considered prolonged.

So, what happens in a case where the medical evidence suggests the person will recover sufficiently to return to the workforce within a specific time, but he or she does not? Again, the particular facts of each case must be carefully considered.

In Arthur M. Ward v. Minister of National Health & Welfare (1989), #8570, CCH, pages 6056 - 57, the PAB found that the medical evidence clearly indicated that the applicant was expected to recover within a specified time frame. However, the recovery period was extended because of continuing symptoms. In making its determination in this case, the PAB held that the postponement of the recovery period from time to time due to persistent symptoms does not mean that the applicant’s disability existed for a long continued and indefinite period. Of note in this case is that the applicant’s disability prevented him from working for eleven months.

In another case, Minister of National Health & Welfare v. Ronald G. Perchak (1989), #8565, CCH, pages 6048 - 50, the PAB found that the applicant did have a prolonged disability when the expected recovery did not occur. In this case, the applicant had sustained a traumatic below-knee amputation. He did not recover enough to return to work within six months as originally predicted. His recovery was plagued by numerous complications. The PAB concluded that his disability was prolonged, not because he had sustained a permanent amputation, but because he had demonstrated to the PAB that he had not recovered enough from his injury to return to any type of work within a reasonable and foreseeable time.

In Minister of Employment & Immigration v. Gaspich (1994), #8539, CCH, pages 6016 - 18, the PAB noted that when the applicant applied for disability benefits in 1990, the medical evidence suggested that she would eventually be able to return to some type of work. However, the evidence presented to the PAB indicated that she had not recovered and remained disabled. In essence, the PAB found that surgery and treatment had failed to achieve the desired and anticipated results. In addition, more recent medical evidence was not definitive about her future. Therefore, the PAB concluded that her condition was prolonged.

As all of this suggests, whether a medical condition is considered “prolonged” will always depend upon the particular case facts. The fact that a medical condition is of a long duration (i.e., it will last several months or years) is not enough on its own. It must also be established that the condition is of indefinite duration. That means there must be a degree of uncertainty about when the applicant will be able to return to some type of work. If both of these factors can be established, then the condition will probably be considered “prolonged.”