Part 4 - Canada Pension Plan Disability Benefits

When is a disability "severe"?

The most common reason why the minister will deny an application for disability benefits is because the medical condition is not considered to be “severe.”

Section 42(2)(a)(i) states:

“a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation.”

There are no other sections in the legislation to help us determine what will, or will not, be considered a “severe” disability. Therefore, the best way is to review past decisions of the Pension Appeals Board (PAB), found in the CCH Canadian Ltd. Canadian Employment Benefits & Pension Guide Reports (cited here as CCH).

The PAB, in Harbhajan Bath v. Minister of Human Resources Development, (1997), #8666 CCH, pages 6259 - 6260, confirmed that the onus of establishing that a medical condition is both severe and prolonged under the Canada Pension Plan rests with the applicant. The PAB further stated that the “prescribed manner” for establishing these conditions is set out in section 68 of the CPP regulations. Section 68 of the regulations requires the applicant to provide the minister with specific information about his or her medical condition, work history, education, and daily living activities for the purpose of determining eligibility for disability benefits.

About whether a disability is severe, the PAB had this to say in Bath:

“The criterion to be applied is the physical or mental capacity, or incapacity, as the case may be, of the applicant to perform any substantially gainful employment, not restricted to the type or general nature of the applicant’s former employment, but any employment of whatever nature.” (Emphasis added)

It is not enough to show that the applicant is no longer capable of performing his or her usual occupation. The evidence must establish that the applicant is unable to rejoin the work force in any substantially gainful occupation, of any nature. In addition, the PAB has interpreted the legislation to mean that the sole test is the applicant’s physical or mental capacity to perform the gainful employment, regardless of whether such employment is readily available, or whether the applicant is actually trained to do such work [Surjit Bains v. Minister of Human Resources Development (1997), Appeal C.P. 04153, unreported].

The PAB has routinely held that personal circumstances (such as age, the availability of work, language barriers, etc.) cannot be considered under the legislation to determine whether the applicant’s disability is severe (see Antonio Macri v. Minister of Employment and Immigration (1995) #8669 CCH, pages 6263 - 64). This is because such personal circumstances do not indicate either the applicant’s physical or mental capacity to work.

The PAB’s refusal to consider whether employment is readily available, or whether the applicant is actually trained to do such work, leads one to wonder what happens to the applicant who is no longer capable of performing his or her usual occupation, and is prevented from retraining for another occupation because of age, education, work history, or language skills.

In Goldie Dalrymple v. The Minister of Employment and Immigration, (1996) #8648 CCH, pages 6226 - 27, the PAB stated that personal factors, “except in very narrow circumstances, are extraneous factors that will not avail a claimant if her capacity to work is otherwise beyond question” (emphasis added). Therefore, there may be, in some limited circumstances, cases where such personal factors will be considered in the overall determination of whether the applicant has a severe disability (see Lidia Ocelak v. Minister of Employment and Immigration (1995) #8608 CCH, pages 6143 - 45 and Appleton v. The Minister of Human Resources Development (1997) #8709 CCH, pages 6381 - 82).

So if the test for “severe” is essentially an inquiry into the applicant’s physical or mental capacity to perform a substantially gainful occupation, the next question is, what is a “substantially gainful occupation”? The PAB has attempted to define this term in a number of contexts. In Germaine Boles v. Minister of Employment of Immigration (1994) #8553 CCH, pages 6036 - 38, the PAB considered a substantially gainful occupation to be one where “the remuneration for the services rendered [are] not merely nominal, token or illusory compensation but rather compensation which reflects an appropriate reward for the nature of the work performed.”

In Susan Sutton v. Minister of Human Resources Development (1998), Appeal C.P. 05339 (unreported), the PAB found that the test for a substantially gainful occupation can often be met with less than a full-time job. Therefore, an appropriately paid part-time job may be considered to be a substantially gainful occupation.

However, the test for “severe” requires more than a determination of whether the applicant can perform a substantially gainful occupation. Section 42(2)(a)(i) refers to “incapable regularly of pursuing any substantially gainful occupation.” In Minister of Human Resources Development v. Clayton W. Bennett (1997), #8690 CCH, pages 6319 - 20, the PAB found:

“It has been held in earlier decisions rendered by this Board ... that the phrase in the legislation ‘regularly of pursuing any substantially gainful occupation’ is predicated upon the individual’s capability of being able to come to the place of employment whenever and as often as is necessary for him to be at the place of employment; that predictability is the essence of regularity. “The requirement that a supportive employer with a flexible work schedule or productivity requirement would be needed (what other cases have referred to as a ‘philanthropic employer’) is a requirement not reasonably attainable within today’s competitive workplace. “It follows, then, that if such a benevolent figure is the sine qua non for the Respondent’s return to the workforce, then it can be reasonably said that he is, indeed, ‘incapable regularly of pursuing any substantially gainful occupation.’”

Therefore, if the applicant cannot attend at the place of employment regularly, in the absence of theoretical extraordinary steps to accommodate for the disability, it cannot be said that the applicant is capable regularly of pursuing a substantially gainful occupation.

The PAB has also considered a number of other factors in defining “severe.” The PAB has consistently held that full-time attendance at school can be equated to an ability to carry out light, or sedentary, employment (see Ann Lauzon v. Minister of National Health and Welfare [1991] #9202 CCH, pages 6203 - 06 for an example). However, a finding that an applicant is able to carry out household tasks cannot be equated to finding that the applicant is capable of performing a substantially gainful occupation (Loretta Wong v. Minister of Employment & Immigration [1996], #8599 CCH, pages 6126 - 27). In such cases, the PAB acknowledges that household chores can be carried out and completed at the applicant’s leisure, something not realistically available in the competitive work place.

Perhaps the case most helpful to advocates involving the determination of disability under the Canada Pension Plan has been Edward Leduc v. Minister of National Health and Welfare (1988), #8546 CCH, pages 6021 - 22. That decision considered what is now referred to as the “realistic versus theoretical approach,” or the “real world” test. Specifically, the PAB arrived at the following conclusion in this case:

“The Board is advised by medical authority that despite the handicaps under which the Appellant is suffering, there might exist the possibility that he might be able to pursue some unspecified form of substantially gainful employment. In an abstract and theoretical sense, this might well be true. However, the Appellant does not live in an abstract and theoretical world. He lives in a real world, peopled by real employers who are required to face up to the realities of commercial enterprise. The question is whether it is realistic to postulate that, given all of the Appellant’s well documented difficulties, any employer would even remotely consider engaging the Appellant.”

In this case, the PAB concluded that the appellant was unemployable in the real world due to his multiple medical conditions.

The Leduc case had a large impact on a number of appeals that followed its release. The realistic approach became very popular, with applicants arguing that they were not employable in the “real world.” However, the PAB has recently distanced itself from the test outlined in Leduc.

In Robert L. Crossett v. Minster of Employment and Immigration (1996), #8618 CCH, pages 6161 - 65, the PAB was asked to apply Leduc to find that the applicant was disabled under the Canada Pension Plan. The PAB held that Leduc could not be applied to Crossett, because to do so would “extend in significant fashion the special and restricted circumstances in which Leduc was decided and the special and restricted circumstances in which the decisions which followed Leduc were decided.” Those special circumstances included: total disability as a result of combined conditions, both medical and non-medical; a limitation on the possibility of control of those combined conditions; a formal restriction on driving an automobile; there being some “unspecified” form of substantially gainful employment; an unqualified acceptance of symptoms; the consideration of slow learning and learning disability; and the disability applicant being well motivated.

Similar comments were made by the PAB about Leduc in Constance M. Osachoff v. Minister of Human Resources Development (1997), #8684 CCH, pages 6301 - 04. Again, the PAB discussed the very limited circumstances under which the test in Leduc may apply. This is not to say that the “real world” argument no longer applies and should not be argued, but the PAB may limit the application of Leduc.

The test to be applied in determining whether a disability is “severe” can vary, depending on the specific disability. For example, an applicant claiming to have a severe disability on the basis of a diagnosis of chronic pain syndrome or fibromyalgia must prove that such a diagnosis exists, that it prevents him or her from working, and that he or she has sought all treatment and made all efforts to cope with the pain (Minister of National Health and Welfare v. Densmore [1993], #8508 CCH, pages 5971 - 73). If the applicant fails to provide all of the information to meet that test (remember, the onus is on the applicant), he or she may not succeed in obtaining disability benefits.

The above cases demonstrate that there are many facets to determining whether a disability is severe. However, these represent only a few of the cases, reported in CCH, which can be used to formulate an argument that a particular disability is severe. Advocates should familiarize themselves with as many PAB cases as possible to ensure that the applicant has met the onerous task of establishing that he or she has a severe disability.