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Severe Criterion for 'Incapable Regularly of Pursuing any Substantially Gainful Occupation'
2.5 Component: Any (occupation)
The fourth word in the Canada Pension Plan (CPP) legislation considered under capacity to work is "any." "Any" refers to an occupation in which a person might reasonably be expected to be employed because of his or her skills, education and training. It may also refer to the capacity to acquire the necessary skills, education or training in the short-term whether on the job or otherwise given the person's limitations and restrictions. In some instances, an individual may have worked at a highly skilled position such as an engineer in the field and can no longer continue in that work. However, the individual has the capacity to work at a desk job.
The factor considered under any is skills, education and training. The determination of "any" occupation also considers the person's personal characteristics.
2.5.1 Factor: Skills, Education, Training
Retraining must be considered as a means to support an individual's work capacity for those in their most active years of their working career or for older workers where there is a demonstrated suitability. However, age may be a factor. Generally, the possibility of retraining for an occupation for which there is no previously demonstrated suitability, in itself, would not be an appropriate reason for concluding that an older worker is capable or incapable of work.
At reassessment a person may demonstrate through their work trial and return to work activities that they have the skills, education and training to pursue a substantially gainful occupation.
2.6 Component: Substantially Gainful Occupation
The phrase "substantially gainful occupation" forms the fifth component for consideration under capacity to work. A "substantially gainful occupation" means an occupation where the remuneration for the work performed and services rendered was at a substantially gainful amount. The substantially gainful amount is a benchmark of earnings that likely indicates whether a person is showing regular capacity for work.
The substantially gainful occupation can include three factors:
- profitability,
- profitable but not productive, and
- highly motivated.
2.6.1 Factor: Profitability
Profitability in a specific time period refers to the amount of money an individual earns from a work activity.
The substantially gainful amount is the maximum monthly CPP retirement pension. The annual amount is equal to twelve (12) times the maximum monthly CPP retirement pension. CPP payment rates are adjusted every January.
Generally speaking the medical adjudicator needs to examine the pattern of earnings at the substantially gainful occupation where the person has recorded earnings and contributions after their latest possible date of onset. The earnings may indicate whether the person had the regular capacity to pursue a substantially gainful occupation during that time.
If necessary at reassessment the medical adjudicator would evaluate the monthly earnings of an individual who reports a return to work beyond the Allowable Earnings limit and provide appropriate support to assist the client to return to regular substantially gainful employment.
Normally, earnings based on the substantially gainful amount are broken down into three levels to properly determine their value in the disability determination process. These levels are:
- from no earnings up to a substantially gainful amount,
- between the substantially gainful amount and twice that amount, and
- above twice the substantially gainful amount.
Generally, as the earnings increase, the likelihood of capacity is seen to increase.
2.6.1.1 Sub-factor: Earnings up to a Substantially Gainful Amount
An individual, who is working to the maximum capacity that his or her disability permits, and whose earnings are less than the substantially gainful amount, is not productive and is not performing. This individual can be determined incapable of working at a substantially gainful level.
The substantially gainful amount is the maximum monthly CPP retirement pension. The annual amount is equal to twelve (12) times the maximum monthly CPP retirement pension.
2.6.1.2 Sub-factor: Between Substantially Gainful Amount and Twice Substantially Gainful Amount
The presence of earnings at the substantially gainful amount does not automatically indicate that the beneficiary is, or is no longer, eligible for the CPP disability benefit. An individual who is earning between the substantially gainful amount and twice this amount does not necessarily have the regular capacity for work. Other factors related to productivity and performance need to be assessed to better understand the relationship between the person's earnings and their capacity for work.
2.6.1.3 Sub-factor: Twice Substantially Gainful Amount and Over
A person with earnings at or above twice the substantially gainful amount is generally presumed to have a capacity for work at a substantially gainful level. The medical adjudicator confirms that the earnings level is the result of the person performing and being productive.
Although rare, there may still be grounds for considering such an individual to be disabled if the work effort is accommodated to a significant degree, or if the work is irregular because they are working for a benevolent employer.
2.7 Factor: Profitable but not Productive
Another factor to consider under substantially gainful occupation is profitable but not productive. Earnings are a strong indication of capacity for work. It must be determined whether the individual is performing and productive in the work on a regular basis. An individual who is profitable may not be productive.
However, earnings from employment may not always lead to the conclusion that a person has the capacity for work.
2.8 Factor: Highly Motivated (when an individual is working in spite of medical advice to the contrary)
There are some situations where individuals who are highly motivated and who cannot accept a complete lack of work activity work despite the fact that they may have a serious and/or terminal medical condition. If the individual's earnings are below the substantially gainful amount, the person would be eligible and/or continue to being eligible for CPP disability benefits.
At initial determination an individual who is working and is determined to be performing, productive, and profitable, despite having a serious medical condition, will not be eligible for CPP disability benefits. This should be discussed with the individual in the early client contact call to be sure the individual is aware of the implications of their continuing to work on their ability to qualify for a CPP disability benefit.