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Cp07036 - aleida h. konynenbelt vs minister of human resources development




Appeal CP07036
The Honourable Mr. Justice F.H. Poulin, Chairman

The Honourable John J. Urie for the Board
The Appellant appeals the majority decision of a Review Tribunal dated April 14, 1997, which confirmed the decision of the Respondent Minister denying her application dated June 15, 1995, for a disability pension as provided for by Subsection 44(1)(b) of the Canada Pension Plan. To be eligible for a disability pension, the Appellant must satisfy two basic requirements: Firstly, she must have made valid contributions to the Canada Pension Plan for a minimum qualifying period, and secondly, she must prove, on a balance of probabilities, that her disability, whether physical or mental, is one that is both “severe and prolonged” as those terms are defined in Subsection 42(2)(a) of the Act. To be classified as “severe,” the disability must be such as renders her incapable regularly of pursuing any substantially gainful occupation and “prolonged” only if it is determined to be long continued and of indefinite duration or likely to result in death. The Appellant last met the minimum qualifying period in December, 1991. She must, therefore, prove that she was disabled no later The majority decision of the Review Tribunal is succinct so that it “Majority Decision
By: Dr. Kui Lim Lu and Ms. Diane Houston
She applied for disability pension in July 1995, under Bill C-57. Her Minimum Qualifying Period (MQP) was December 1991. Most of the medical reports on file, as well as, the evidences presented by Mr. and Mrs. Konynenbelt indicated that her disabilities in 1991 were: (1) High blood pressure (2) Bladder infection (3) Asthma (1) High blood pressure - Her Lopresor was discontinued due to concerns about her asthma, and Capoten disagreed with her. However, Adalat 20mg once a day apparently controlled the hypertension well, even up to the present day. (2) Bladder infection - She has had two vaginal repairs for prolapsed bladder. The last surgery caused the bladder neck stricture and required a catheter and urinary bag, a common complication of vaginal repair which was corrected with urinary catheter. She has repeated urinary infection which is controlled well with a single dose of Cipro (antibiotic) every two to three months. (3) Asthma - This condition was diagnosed in 1989 because of coughing, wheezing, and shortness of breath. She developed reaction to Theo-Dur. In 1991, she was hospitalized twice because of associated bronchitis (asthmatic bronchitis). On her discharge the asthma was controlled with Atrovent, Tilade and Beclovent inhalers. Since then she experienced on and off asthma attacks but controlled with the “Inhalers” without hospitalization. Three years (3) after her MQP she did develop disabling metastatic carcinoma of the breasts. However, there is no medical evidence in 1991 that her condition was severe as defined under the Canada Pension Plan legislation. The appeal is dismissed.” In a lengthy dissenting opinion, the Chairman of the Review Tribunal found that during the period from the year of her last employment in 1986 to 1992, the Appellant’s “periods of wellness” were short-lived, irregular and unpredictable rendering her “incapable regularly of pursuing any substantially gainful occupation” so that in his opinion “she was in this condition by December, 1991, if not before.” He also found that the disability was “prolonged” since it continued at least through 1993, following which, in 1995, she was diagnosed as having breast cancer and that was the final Further, in the view of the dissenting member, since her application for pension benefits was filed only in July, 1995, the earliest date she could be disabled for the purpose of receiving benefits would be fifteen months previously, namely, April, 1994, and her benefits thus would have commenced four months later in August, 1994, if his opinion were to prevail. It did not, of course, in the view of the majority as shown above, and the appeal There is no question from my review of the documentary medical evidence of the Appellant’s physicians as well as the oral testimony given by Dr. J.M. MacDonald, the Respondent’s medical advisor, that there was ample evidence that the Appellant’s only disabilities in 1991, were: The only questions then are, were they so severe that she was incapable regularly of pursuing any substantially gainful occupation as of December, 1991, and were they likely to be long continued and of indefinite duration? Dr. D.J. Williams, a specialist in respiratory medicine, first saw the Appellant on January 15, 1991, when she was admitted to hospital for the first time for an acute asthma attack associated with exposure to irritants such as dust and smoke. Admission was in part therapeutic to reduce her exposure to such irritants. Her blood pressure was elevated at that time so that a new drug was prescribed to reduce the pressure. She was discharged from On May 1, 1991, she was readmitted for the same symptoms as in January. The same treatment was prescribed and, as well, she was given antibiotics intravenously. Her blood pressure had been reduced to what Dr. MacDonald described as “acceptably controlled.” Dr. Williams did not attend admission in January, 1991, to the second admission in May, 1991, she may have been somewhat disabled by her asthmatic attacks, but it was not a prolonged disability as the fact that Dr. Williams, the respirologist, was not again consulted would indicate. The report dated June 13, 1991, of Dr. D.Q. Chu, an allergist, seems to reinforce this view. As to the elevated blood pressure, the second problem, all subsequent medical reports seem to support Dr. MacDonald’s view that it was well under control enabling her to live a normal life, including pursuing an occupation, insofar as that condition was concerned. The third disability alleged to be present in 1991, was a urinary tract infection in December, 1991, which was treated by her family physician, Dr. E.J. Pauls, with two drugs, noroxin and pyridium, apparently successfully, in that month and also in January, 1992. Dr. W. Cyr, an anaesthetist, reported on a cystoscopic examination on November 25, 1991, which revealed no In his report dated March 8, 1996, Dr. Pauls outlined his patient’s medical history from December, 1990, to December, 1993, including that outlined above, and expressed the following opinion: “It is felt throughout this time that she was disabled in many of the months through December 1990 - 1992 which interfered with her ability to do any employable work. The above information will confirm this impression.” Dr. MacDonald, on the other hand, argued that none of the disabilities referred to by the Review Tribunal were, in 1991, debilitating to the extent required for them to be described as severe and prolonged. The subsequent breast cancer discovery in 1994, might well have fallen within that category, but it was not present in 1991, the key date for the entitlement to a Because of these conflicting views, it is clear that the Appellant has failed, on a balance of probabilities, to discharge the onus upon her of establishing her entitlement to the receipt of a disability pension under the Act as at December 31, 1991, when she last met the minimum qualifying period. DATED this 1st day of March, 2000. (signed)



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