SOCIAL SECURITY TRIBUNAL DECISION General Division Income Security

Transcription

1 Citation: K. W. v. Minister of Human Resources and Skills Development, 2015 SSTGDIS 12 Appeal No: GT BETWEEN: K. W. Appellant and Minister of Human Resources and Skills Development Respondent SOCIAL SECURITY TRIBUNAL DECISION General Division Income Security SOCIAL SECURITY TRIBUNAL MEMBER: Carol Wilton DATE OF HEARING: December 11, 2014 TYPE OF HEARING: In person DATE OF DECISION: February 19, 2015

2 PERSONS IN ATTENDANCE The Appellant: K. W. Appellant s Representative: Observer: Lawrence Hatfield Tammy Praass, paralegal DECISION [1] The Tribunal finds that a Canada Pension Plan (CPP) disability pension is not payable to the Appellant. INTRODUCTION [2] The Appellant s application for a CPP disability pension was date stamped by the Respondent on March 14, The Respondent denied the application at the initial and reconsideration levels and the Appellant appealed to the Office of the Commissioner of Review Tribunals (OCRT). [3] The hearing of this appeal was in person for the reasons given in the Notice of Hearing dated August 26, [4] At the hearing, the Appellant s representative requested that three new documents be admitted: the decision of the Social Benefits Tribunal (SBT) dated July 10, 2012 on the Appellant s application for benefits under the Ontario Disability Support Program (ODSP); the Medical-Legal Reassessment of Dr. Dinesh Kimbhare, physiatrist, dated March 19, 2014; and the Medical Legal Psychological Report of Dr. Denise Milovan and Dr. Diana Velikonja, psychologists, dated March 31, The Tribunal asked for submissions from the Respondent as to whether these documents should be admitted into evidence but received no response. The Tribunal notes that these documents were available to the Appellant s representative well before the filing period expired on October 14, He explained that they had not been provided to the Tribunal because of an oversight. Nevertheless, because they may be relevant to the determination of the

3 issue before the Tribunal and are apparently credible, the Tribunal made the decision to admit them. THE LAW [5] Section 257 of the Jobs, Growth and Long-term Prosperity Act of 2012 states that appeals filed with the OCRT before April 1, 2013 and not heard by the OCRT are deemed to have been filed with the General Division of the Social Security Tribunal. [6] Paragraph 44(1)(b) of the CPP sets out the eligibility requirements for the CPP disability pension. To qualify for the disability pension, an applicant must: a) Be under 65 years of age; b) Not be in receipt of the CPP retirement pension; c) Be disabled; and d) Have made valid contributions to the CPP for not less than the Minimum Qualifying Period (MQP). [7] The calculation of the MQP is important because a person must establish a severe and prolonged disability on or before the end of the MQP. [8] Paragraph 42(2)(a) of the CPP defines disability as a physical or mental disability that is severe and prolonged. A person is considered to have a severe disability if he or 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. ISSUE [9] There was no issue regarding the MQP because the parties agree and the Tribunal finds that the MQP date is December 31, 2011.

4 [10] In this case, the Tribunal must decide if it is more likely than not that the Appellant had a severe and prolonged disability on or before the date of the MQP. EVIDENCE [11] The Appellant is thirty years old. After a Grade 12 education and a diploma in medical office administration (2005), she worked primarily in medical offices. According to her Questionnaire, she received regular Employment Insurance (EI) benefits from March to the end of November , and at the time of her car accident on February 24, 2010 had been working for approximately one month at a medical office (GT1-70, 71). According to her Questionnaire, the Appellant s main medical condition is chronic pain. [12] In addition to her primary work as a medical office administrator, the Appellant undertook part time jobs as a cleaner from April 2005 to March 2008 (business), from June 2006 to July 2007 (residential) and as a dog groomer from September 2009 to January In addition, she worked in general administration at a learning centre from December 1, 2009 to January 22, 2010 for 25 hours a week (GT1-72). She testified that her job in medical administration in January and February 2010 was ten hours a day, and that her dog grooming took 3-4 hours a day on Saturdays or Sundays. [13] The Appellant had a history of back troubles prior to her accident. As a child, she had suffered from congenital scoliosis of her upper spine that required surgical fusions. She also had a Chiari Malformation Type I (a structural defect of the brain), which required decompression surgery when she was 8 years old. In addition, she had experienced a post-allergic reaction to some of the hardware used in her back surgery and it had to be removed. In spite of this, the Appellant functioned well prior to her car accident (GT1-63). [14] The accident occurred when the passenger side of the car the Appellant was driving was hit by a truck. The left side of her body hit the side of the car but she did not bang 1 As the Appellant s Record of Earnings shows earnings of $37,007 in 2008 and $10,702 in 2009, it may be that she was collecting EI in the latter year.

5 her head or lose consciousness and she was able to get out of the car. She was taken to the hospital, where X-rays did not show any fracture (GT1-38). [15] At the hearing, the Appellant stated that her pain got worse over time, with nerve pain, weakness, and lack of stamina. She then went on to say that the compression in her lower back, which was worse for the first year or two, and her headaches, which cleared up a year or two after the accident. She still has occasional headaches, but the problem is much less serious than it was in the immediate aftermath of the accident. [16] The Appellant testified that a few months after the accident she tried to return to work with the dog groomer, but was unable to handle bathing the animals because of pain in her hip or doing the bookkeeping because it was too hard to sit at a table. [17] The first post-accident medical report in the Appellant s file is from Dr. Rose Giammarco, a neurologist who examined her on April 20, The doctor noted that she had pain in her neck muscles but a full range of motion in her neck. She thought the Appellant s headaches were vascular. The Appellant had tried massage therapy and Tens (electrical nerve stimulation) until her insurance coverage ran out. The doctor started her on Amitriptyline and encouraged her to take massage therapy (GT1-67). [18] Vladimir Kulikov, M.A., a psychotherapist acting under the supervision of a psychological associate, indicated in a report dated May 25, 2010 that the Appellant suffered from severe anxiety and depression, as well as post-traumatic stress disorder and a specific phobia, situational (driving). He recommended twelve sessions of cognitively oriented psychotherapy (GT3-61). The Appellant testified that she had seen Mr. Kulikov for twelve sessions of counselling. [19] An MRI of the Appellant s brain and cervical spine in July 2010 showed that her brain was normal. There was a small syrinx within the cervical cord. The MRI report also noted that there was a convex left scoliosis of the cervical spine (GT1-68). [20] The Appellant saw Dr. Giammarco again in August 2010, complaining of numbness in her arms, and headache and neck pain. Dr. Giammarco found signs of nerve irritation in the Appellant s elbow. The Amitriptyline was not helping, and the Appellant

6 did not have the money for other drugs. The doctor gave her Topamax (to prevent migraines) and referred the Appellant for massage therapy (GT1-70). [21] The Appellant completed a questionnaire in March 2011, indicating that she had extreme lower back pain, hip pain, and chronic pain. She also had headaches, extreme right hand weakness, wrist pain, and constant neck pain on her back upper left shoulder area. She could not perform repetitive tasks that involved lifting, bending, or walking. Standing was a problem; sitting was not, depending on the position. She had short-term memory problems and difficulty concentrating. She no longer undertook the activities she had enjoyed prior to the accident. She had seen a chiropractor, had taken counselling until her benefits were discontinued, had attended massage therapy, and did home exercises. She took 3-6 Tylenol #3 per week. [22] The Appellant s family physician, Dr. Paul Andrus, provided a medical report, received March 14, 2011, indicating that she had myofascial pain syndrome following her car accident, grade III whiplash, and secondary depressed mood with social adjustment disorder. His physical findings were that she suffered from hand and arm weakness on the right side with decreased range of movement. These difficulties were seriously aggravated by any sustained physical effort. He noted that even prolonged sitting worsened her neck pain but that it was manageable if repetitive use of her back, neck and upper limb were avoided. Her medications included an anti-depressant and Tylenol #3 as needed. Dr. Andrus indicated that neither physical nor surgical treatment were appropriate for her condition. He did believe, however, that with suitable training she would be able to do sedentary work (GT1-63-6). No clinical notes and records from the Appellant s family physician were provided to the Tribunal. [23] The Appellant saw Dr. Giammarco again on April 20, 2011, complaining of pain with activity none is on the left side of her head. The Appellant reported that her headaches had increased in severity. She had not taken the Topamax or a topical cream for her neck that Dr. Giammarco had recommended. She had stopped massage therapy because her insurance no longer paid for it (GT1-57).

7 [24] The Appellant was concerned about her syrinx and visited Dr. Kesava Reddy, a neurological surgeon, in July He told her that surgery would be hazardous for her (GT1-3-65). An MRI of her spine a few days later showed that there had been no significant change in the syrinx since July 2010 (GT1-49). [25] On August 15, 2011, Dr. Dinesh Kumbhare, physiatrist, indicated in a report prepared for the Appellant s representative for the purposes of litigation that the Appellant had probably suffered soft tissue injuries to her spine and neck in the car accident, aggravating her scoliosis. On examining her for neck and lower back pain, he found a reduced range of motion in all directions. His neurological examination showed possible clinical evidence of radiculopathy (nerve root pain) or myelopathy (inflammation). Dr. Kumbhare believed that the Appellant s hip pain was also the result of soft tissue injuries, but noted that she had a full range of motion in all directions. He thought that her headaches were probably a result of her neck issues. The doctor also discussed the Appellant s emotional state under the heading Depression, noting that she reported experiencing it since the accident: she could not do what she had planned in life she reported financial stress and marital problems. He recommended a chronic pain program, a physiotherapy/gym program, and psychotherapy (GT3-73ff). [26] Dr Kumbhare discussed the Appellant s chronic pain. He noted that pain that did not stop by six months after an accident was chronic pain, which can be associated with psychological factors. He thought that the Appellant was probably suffering as well from central sensitization, changes in the central nervous system that occur when pain continues beyond the normal healing time (GT3-85). [27] Dr. Kumbhare concluded with some observations about the Appellant s work life expectancy in relation to her medical conditions: [The Appellant s] loss of function will certainly impact on her work life expectancy. I expect that this work life expectancy decrease would be modest, particularly if she increases her muscular strength and continues to receive periodic supportive care. This opinion is based on the belief that there is some loss of functional reserve and that she is susceptible to future injury due to the secondary degenerative changes with age as well as her pre-existing scoliosis and it is for this reason that I suggest that there may well be some vocational life expectancy

8 reduction. Psychological distress may also contribute to her ability to gain and maintain competitive employment. (GT3-86-7) Dr. Kumbhare then stated that the Appellant s physical injuries from the accident have resulted in chronic pain, and psychological distress. He noted that the injuries had caused ongoing pain, and had impeded her ability to work, undertake household chores, and enjoy recreational activities. He concluded that, taking into account the Appellant s physical and emotional conditions, the prognosis for a full recovery was guarded and that her symptoms can be considered permanent (GT3-87). [28] In September 2011 the Appellant visited the combined neurology-physiatry clinic at St. Joseph s Healthcare in Hamilton. Doctors Michel Rathbone and Dinesh Kumbhare prepared a report for her family physician. They observed that she had a prescription for medical marijuana, which helped her to relax although it did not lessen her pain. The major problems they identified, apart from her pre-existing spinal abnormalities and an irregular heartbeat, were in her neck and lumbar spine: nerve root injury at C8/T1 and L5/S1, with no acute or ongoing denervation. They advised that she not return to work at this time (GT1-40). [29] The Appellant had an MRI of her cervical and thoracic spine in October It found no change in her syrinx (GT1-46). An MRI of her lumbar spine on October 23, 2011 found that it was normal apart from moderately severe scoliosis (GT1-42). A further MRI of the syrinx in January 2012 found it unchanged (GT3-33). [30] In January 2012 the Appellant began a Web Master Certificate program through a community college. She testified at the hearing that she had completed this course, although it took her two years rather than the usual eight months and required accommodations for her medical condition. [31] The decision of the SBT on the Appellant s application for ODSP was heard June 27, The criteria for receiving provincial disability payments are different from those of the CPP, so that the SBT s decision that the Appellant s impairments were continuous or recurrent and expected to last one year or more is not determinative of the issue before this Tribunal. The SBT s decision quotes from the April 2011 Health

9 Status Report of Dr. A. (presumably Dr. Andrus, the Appellant s family doctor) as follows: the Appellant had been functioning with structural spinal pathology until MVA Feb 2010, however severe whiplash trauma has caused predisposed spine to become profoundly limiting of ADL s, work in general. Further, Dr. A. is quoted as saying that the Appellant suffers from cumulative effects of multiple spinal pathologies which were taken to the level of total disability by a whiplash injury in an MVA 1 year ago. In the Activities of Daily Living Index, Dr. A. indicated seven areas at the class four level severe or complete limitations, including ability to sit for a sustained period. The doctor is also quoted as saying that there are no reasonable viable employment options for her given the degree of neurological impairment and her educational and experience background. (GT6-54 ff). [32] The Appellant s file contains a lengthy report 2 completed December 17, 2012 by Maria Ross, an occupational therapist (the Ross report) (GT3-8ff). This document summarized a number of previous examinations of the Appellant by various health professionals. These included two insurer s examinations - an orthopaedic assessment report dated August 31, 2010, and a psychological assessment from Dr. Marc Mandel, psychologist, dated September 17, 2010; both concluded that she did not have any limitations that precluded her from returning to her employment. The psychological assessment found the possibility of symptom magnification and poor effort. 3 The Ross report also included summaries of two functional abilities evaluation reports provided by chiropractors at a local Wellness Centre. The first, dated December 7, 2010, stated that the Appellant was able to lift and push/pull at light physical demands levels and demonstrated intermediate tolerance to walking. It recommended an exercise program and a conditioning program. The second, dated May 27, 2011, suggested continuing treatment to assist with increasing her strength and range of motion. It stated that her overall prognosis was poor (GT3-11). [33] The Ross report found, on the basis of a work placement, that the Appellant did not demonstrate the ability to attend a full day and her overall productivity was below 2 It is a medical legal situational assessment report. 3 This conclusion was challenged in the Psychological Assessment of March 2014 (GT6-45-6).

10 competitive expectations for a workplace. It found that her scores for depression were above average for pain patients, and noted that she had received two referrals for psychological assessments but had been denied funding for them. It noted that the Appellant s medications at that time included Percocet, Nebulin (synthetic marijuana), and medicinal marijuana. The Ross report recommended psychological support services, attendance at a chronic pain management program, and further investigation of her neck pain. [34] The Appellant has tried a number of different medications since her accident. She testified at the hearing that the only medication she is currently using is Percocet. She had found that Nebulin and marijuana, as well as a number of other medications, were unhelpful. [35] At the hearing the Appellant testified about the treatments she had followed. She had taken physiotherapy and massage therapy until her benefits ran out. In any case, physiotherapy, she said, made her nerve pain worse. She had tried to get into Dr. Ennis s pain clinic but was unable to obtain private funding for this. She had tried acupuncture and steroid injections in her hip. In addition to counselling with Mr. Kulikov, she had attended a chronic pain support group twice a week for a period of months. She found that gym programs were too strenuous for her. She did light stretching exercises at home. [36] Dr. Kumbhare s Medical Legal Reassessment Report dated March 19, 2014, updated his report of August He stated that he had treated the Appellant from September 2011 to December 2012 with medication changes and corticosteroid injection; the injections reportedly produced no benefit. Acupuncture with another physician was similarly ineffective. On a scale of 1-10, with 10 being the most intense, she rated her low back and neck pain as 10/10, and her hip pain at 8/10. Her headaches manifested themselves as sharp pain a few times a week, and rated the pain at 8/10. She also reported nerve pain. The Appellant reported that she tried to do some light stretching at home. Dr. Kumbhare noted that the Appellant was taking six Percocet a day, whereas in 2011 she had been taking only ½ tablet a day (GT6-11).

11 [37] Dr. Kumbhare referenced a Defence Neurological Examination dated March 13, 2013, which stated: as there are no impairment [sic] they do not limit [the Appellant s] ability to work at any employment for which she is suited by education, training or experience. Dr. Kumbhare stated as his opinion, however, that the Appellant had gone on to develop chronic pain, and a more recent nerve-type pain, and as a result is limited in her ability to work at any employment (GT6-26). As the nerve pain was not mentioned in his August 2011 report, it would appear that this condition developed after the Appellant s MQP and hence is not relevant to the issue before this Tribunal. [38] Dr, Kumbhare also referred to a Defence Physical Medicine and Rehabilitation examination dated April 17, 2013, which stated that there is no evidence of any ongoing physical impairment attributable to soft tissue injury which could possibly have been sustained in the Appellant s car accident that would serve as a barrier to her returning to work. Dr. Kumbhare agreed that the Appellant s soft tissue injuries had long since healed, but believed that she had subsequently developed chronic pain which has resulted in significant impairment and reduced functional tolerances (GT6-58). [39] The Psychological Assessment of Dr. Denise Milovan and Dr. Diana Velikonja dated March 2014 discusses the Appellant s psychological condition at the time the report was prepared, and thus is of little relevance to the question of whether the Appellant was suffering from a severe disability at the time of her MQP in December [40] At the hearing, the Appellant disclosed that she had been granted a provincial disability pension in mid Subsequently, in January 2014, she began working parttime at a call centre for three hours at a time, two nights a week. She left this job in March 2014 for a position maintaining the web sites of a local company at their offices. The job was supposed to be 40 hours a week, but sometimes the Appellant missed two or three days at a time because the amount of sitting involved was very painful for her. She stated that the job was unmanageable even on the maximum dose of medication that her doctor was willing to provide. She left the job, which paid $14.10 an hour for the hours worked, in October 2014; she was not sure what amount she earned between March and

12 October 2014 but believed it was around $10,000. She is currently receiving EI disability benefits of $ a week and has no active plans to return to work. [41] The Appellant testified as to her present medical condition and functional abilities. She stated that the left side of her neck hurts, and that it is hard to keep her head up after sitting or standing. She gets shooting pains down her spine, and her lower spine feels compressed. She has nerve pain numbness and tingling in her hands. She feels intense burning pain in her shoulders and hips that comes and goes. She has no stamina. To control the pain, she takes 5 mg. of Percocet six times a day. On a scale where one is the least painful and 10 is the most painful, the Appellant stated that without medication her pain was at a level of 12/10. When Percocet is working, which is not all the time, the pain is 5/10. She testified that she relies on Percocet to be able to function at all. She did not make any mention of depression, nor is there any indication that she is presently receiving any medication for this condition. She is not scheduled to see any specialists. [42] The Appellant testified that she can undertake the basic activities of daily living such as showering and making a sandwich without assistance. Her husband does most of the household chores, and she also gets help from her mother and sister. A neighbor shovels the snow. She uses the computer to pay bills and not much else. She goes to the grocery store perhaps twice a month for small items, and visits a friend for coffee for half an hour from time to time. SUBMISSIONS [43] The Appellant s representative submitted that she had had a difficult life with many physical obstacles to overcome. He stated that the Appellant s view of her life before the accident was rosy, and that she had a severe condition even before her 2010 injury. It was exacerbated by her car accident in February 2010, which led to, among other conditions, severe headaches, neck, shoulder, and back pain. Her condition had not changed much since 2011 except that her headaches had subsided. In terms of restoring her health after the accident, the Appellant had done everything her health care providers had suggested. Her first choice would be to have a productive work life. She went back to work after receiving the provincial disability pension. She had tried to find a job within

13 her limitations - as a web master - but she was unable to sustain it. She has, he submitted, exhausted all possibilities. [44] The Respondent provided an Explanation of its decision dated May 28, 2013, (GT2), submitting that the Appellant s disability did not meet the criteria for severe and prolonged because: a) Following her accident in February 2010, there were no severe findings in the diagnostic testing and surgery was not recommended; b) The Appellant does not appear to require ongoing treatment by any specialists; c) She does not appear to have exhausted all treatment modalities; and d) Given her age and education, it cannot be concluded that she is incapable of all work. [45] In an Addendum to these submissions dated June 2, 2014, the Respondent maintained that the documents submitted did not support the conclusion that the Appellant was unable to perform any work because: a) A medical legal assessment indicated that she was productive for three and a half hours per shift; b) The assessment of December 2012 indicated that the Appellant was taking synthetic and medical marijuana as well as Percocet. There were no reports in the file relating to the medical use of marijuana, or reports on the cumulative effects of using narcotics along with two types of marijuana; and c) She was able to complete four courses of a web master certificate during 2012 before reporting difficulties in December of that year, thus showing evidence of work capacity (GT-5). ANALYSIS [46] The Appellant must prove on a balance of probabilities that she had a severe and prolonged disability by December 31, Severe [47] The Tribunal is not persuaded that the Appellant s disability was severe at the time of her MQP.

14 [48] The minor issues on this appeal are whether the Appellant required treatment by a specialist, whether she followed treatment recommendations, and the nature of her medication regime. The Respondent s position that the Appellant did not require the regular ongoing care of any specialists is not supported by the information in the file. Dr. Kumbhare recommended that she seek treatment at a pain management clinic. She explained, however, that this was because she was unable to obtain funding to do so. In addition, she was unable to afford the cost of a psychological assessment as had been recommended. It follows that she was unable to afford the cost of psychotherapy as recommended by Dr. Kumbhare. She did, however, seek treatment from Dr. Kumbhare for more than a year after September [49] With regard to an appellant following the advice of her doctors, it has been said in Bulger v. MHRD ((May 18, 2000), CP 9164 (PAB)), a decision that is not binding on this Tribunal, that applicants for a disability pension must follow treatment recommendations or provide a satisfactory explanation for their non-compliance. It does not appear that the Appellant has followed all treatment recommendations, in particular the suggestion from more than one specialist that she do physiotherapy and build up her strength through exercise. She testified at the hearing that she had tried physiotherapy, but that it made her nerve pain worse. She said she found exercises too difficult, but does some light stretching. The Appellant s failure to follow a program of strengthening exercises is troubling, though not determinative of the issues on this appeal. [50] With regard to the Appellant s medication regime, it is not clear, as the Respondent argued, that the absence of reports on the medical use of marijuana or the cumulative effects of her marijuana use together with narcotic medication one year after her MQP is relevant to the question of the severity of her disability in December The Tribunal does note, however, that while in 2011 she was taking only ½ Percocet a day, she was taking twelve times this amount in This suggests that her disability was possibly considerably more severe in March 2014 than at her MQP.

15 [51] The more serious issue in this appeal is with the evidence: credibility problems, gaps in the available information, and unhelpful evidence. There is also the issue of the Appellant s recent work history. [52] The Appellant was not entirely credible on the issue of her health condition. While she stated that her pain had become progressively worse after the accident, she also indicated that her headaches and feeling of lower back compression improved significantly in the following year or two. Moreover, her description of her pain level as 12/10 without medication was not convincing, as well as differing from what she told Dr. Kumbhare in March [53] The Tribunal finds that the Ross report, which was completed almost a year after the Appellant s MQP, is not of assistance in determining whether her disability was severe in December Further, the psychotherapist who in 2010 diagnosed the Appellant with severe depression and other conditions, though supervised by a psychological associate, was not qualified as a psychologist or a psychiatrist, and the Tribunal has given little weight to his report. In addition, Dr. Giammarco s medical reports were of limited assistance in determining the severity of the Appellant s disability at the time of her MQP; apart from a finding of nerve irritation in the Appellant s elbow, they mostly consisted of reiterations of the Appellant s own statements. [54] The evidence from the Appellant s family doctor, Dr. Andrus, is contradictory. The report he submitted to the ODSP authorities was not before this Tribunal, but excerpts of it were reproduced or referenced in the SBT decision, and there is no reason to believe that the decision misrepresented Dr. Andrus s information. His Medical Report of March 2011 contained his opinion that the Appellant was capable, with retraining, of sedentary work. His medical report of the following month to the ODSP authorities, however, talked of her condition in terms of total disability and said that there were no reasonable viable employment options for her. There is no information in the file indicating that there had been any change in the Appellant s condition in the intervening period. Moreover, although the Appellant stated in her questionnaire in March 2011 that sitting was not a problem depending on the position, Dr. Andrus stated

16 in April 2011 that she had severe or complete limitations sitting for a sustained period. Accordingly, the Tribunal finds that the doctor s evidence cannot be relied upon. [55] There are other deficiencies in the evidence before the Tribunal. The Appellant reported to a number of health professionals that she suffered from neck and back pain, headaches, and depression. She mentioned the depression to a number of health professionals, but not on her March 2011 questionnaire or at the hearing. Although she was on medication for it in 2011, according to her family doctor, this was no longer true at the time of the hearing, when she testified that she was taking only Percocet. [56] With regard to her physical health, the Appellant had many MRIs taken in 2010 and 2011, but none found any verifiable damage beyond conditions that pre-dated the accident. As the Respondent pointed out, the diagnostic testing revealed no severe findings and surgical intervention was not recommended. In August 2011 Dr. Kumbhare found that she had a full range of motion in her hips and a somewhat reduced range of motion in her spine and neck. He concluded that she suffered from soft tissue injuries and chronic pain. Neither of these issues was mentioned in the report he co- authored for her family physician a month later. Dr. Kumbhare stated in March 2014 that her soft tissue injuries had long since healed, but did not indicate specifically when this occurred, so that it is not clear whether it happened before or after December While he thought that the Appellant s condition was permanent and the prognosis was guarded, Dr. Kumbhare also expected in 2011 that the decrease in the Appellant s work life expectancy would be modest. It is significant that this specialist, retained by the Appellant s own counsel, expected four months before her MQP that her work expectancy would not be seriously affected by her injuries. [57] Given the weakness of the evidence before it in favour of the Appellant s application, and without even taking into account the accounts of the insurer s and defence medical and psychological examinations, which the Appellant s representative did not provide to the Tribunal, the Tribunal is not persuaded on a balance of probabilities that the Appellant has met the burden of showing that her disability was severe at the time of her MQP.

17 [58] The second major issue is the Appellant s work history. The severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248 [Villani]). This means that when assessing whether a person s disability is severe, the Tribunal must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. (Villani at para. 38). Applying the Villani factors requires examining the Appellant s background as well as her medical condition to determine employability (Bungay v. Attorney General of Canada, 2011 FCA 47). With respect to her background, the Appellant was young, English-speaking, and relatively well-educated at the time of her MQP. [59] The test with regard to work capacity was enunciated by the Federal Court of Appeal in Inclima v. Canada (A.G.), 2003 FCA 117 [Inclima]). To establish severe disability, appellants must not only show a serious health problem, but where there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition (Inclima at para. 3). Dr. Kumbhare was of the opinion in August 2011 and again in 2014 that the Appellant suffered from chronic pain, which is a serious condition. However, it is not the diagnosis but the capacity to work that is in issue. (Klabouch v. Canada (MSD), 2008 FCA 33, at para. 14). In this case, the Appellant testified that she tried to return to work as a dog groomer/bookkeeper shortly after the accident but was unable to do so. She was, however, able to complete a web master course, and to work from January to October 2014, first at a part-time position and then in a full-time job. Clearly she had the capacity to work. She submitted, however, that she was unable to continue that employment because of her ongoing pain, though she provided no documentary evidence of this. And even though the Appellant stated that she missed time from work in 2014 because of her medical condition, it appears that the decision to stop working was hers rather than the employer s; her attendance at work was apparently sufficiently regular that it did not cost her the position. Nor is it clear to the Tribunal that the Appellant has exhausted the possibilities of part-time work. Although this matter is not determinative of the issue before the Tribunal, taken together with the deficiencies in the evidence, the Appellant s

18 recent work history casts doubt on the severity of her disability at the time of her MQP in accordance with the Inclima test. [60] The Tribunal finds, on a balance of probabilities, that the Appellant s disability was not severe at the time of her MQP. Prolonged [61] Since the Tribunal found that the Appellant s disability was not severe at the relevant time, it is not necessary to make a finding on the prolonged criterion. CONCLUSION [62] The appeal is dismissed. Carol Wilton Member, General Division