IN THE PENSION APPEALS BOARD IN RE THE CANADA PENSION PLAN JUDY MANCHUR. - and - MINISTER OF HUMAN RESOURCES DEVELOPMENT

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1 IN THE PENSION APPEALS BOARD IN RE THE CANADA PENSION PLAN BETWEEN: JUDY MANCHUR Appellant - and - MINISTER OF HUMAN RESOURCES DEVELOPMENT Respondent Appeal CP08485 heard in Regina, Saskatchewan October 5, Before: The Honourable E.O. Fanjoy The Honourable Mr. Justice Holmes The Honourable Mr. Justice Power Counsel: James Ludwar for the Appellant Isabelle Chartier for the Respondent Holmes, J. for the Board: This is an appeal from a decision of a Review Tribunal dated September 29, 1997, which followed the Appellant s second application for a disability pension. Her first application was dismissed by a majority decision of another panel of the Board which sat on May 10, 1994.

2 - 2 - Having regard to s. 84(1) of the Plan, it was conceded by counsel that to satisfy the conditions of the legislation, the Appellant must prove she was disabled in the period between May 10, 1994, and December 31, 1994 when she last satisfied the contributory requirements of the Plan and continuing to the present, as to preclude all types of regular gainful employment. The 49-year-old Appellant has a Grade 9 education and is the mother of five children. She last held a job on a part-time basis as a cashier at a pharmacy during November and December, Her application indicates she ceased work about January 1, 1993, complaining of backache, headaches, a stomach problem, chest pains, hepatitis, and the after-effects of cancer treatments. Although the Appellant stated her main limitations at the time were related to her back problems, she also said she had trouble remembering sometimes. The evidence before this Board indicates the Appellant has had a long and complicated medical history. For the purposes of this appeal, it will only be necessary to refer to some of the more significant events of that history. On November 29, 1983, the Appellant underwent surgery to remove a metastatic nasopharyngeal carcinoma, an operation which was

3 - 3 - followed by 37 radiation treatments. It was contended on behalf of the Appellant that the radiation treatments left her with prolonged side effects, including brain atrophy. In 1985, the Appellant was treated for hepatitis. In June, 1989, Ms. Manchur was involved in a motor vehicle accident as a result of which she underwent a CT scan of the brain and X-rays of her spine. Dr. H. Yuen noted at the time: Although the patient is young, mild atrophic changes are present in the extreme anterior frontal regions. The X-rays showed evidence of cervical lordosis as a result of a soft tissue injury, as well as some minor degeneration of the lumbar spine. On July 21, 1989, the Appellant was examined by a neurologist, Dr. C.P. Vasu Nair, who reported that as a result of her motor vehicle accident, Ms. Manchur had back pain, pain in the left leg, the left arm going numb, headache in the occipital region, and forgetfulness lasting up to periods of 5-10 minutes. On November 4, 1990, the Appellant fell at work and apparently aggravated her previous back injuries.

4 - 4 - Following an examination on April 2, 1991, Dr. Hernandez, a cardiologist, reported there was no evidence of ischemic heart disease, but opined that she probably suffered from mitral valve prolapse. Between December, 1990, and May 10, 1994, the evidence shows Ms. Manchur made numerous complaints to medical doctors of chest and back pains. decision in part states: In denying the Appellant s appeal of May 10, 1994, the majority I have difficulty when considering that the repeated I don t remember was, for the Appellant, both an explanation for not knowing the answers to difficult questions and support for claims of loss of memory sufficient to interfere with employment a shield and a spear. Interestingly, the dissenting Justice would have allowed Ms. Manchur s appeal. After reviewing the evidence he concluded: However it seems likely that circumstances from the life threatening cancer with the associated radiation treatment, through the 1990 fall while at work have all taken their toll on Ms. Manchur with the result that she appears indefinitely incapable of regularly engaging in any substantially gainful employment.

5 - 5 - This Board has had the advantage of hearing new evidence with respect to the Appellant s medical problems. In particular, Dr. Gomes in a February, 1995 report diagnosed Ms. Manchur as having fibromyalgia. Such diagnosis appears to have been confirmed by Dr. R.E. Capp, a specialist in physical medicine and rehabilitation, who conducted an independent examination of Ms. Manchur for the Respondent and reported under the date of July 10, He also noted she appeared to have impairment of her memory. In addition to the new medical evidence referred to above, this Board has had the advantage of reading the report and hearing testimony of Dr. W.J. Arnold, a psychologist who specializes in disability assessments. After extensive testing, Dr. Arnold found Ms. Manchur suffers from a high level of memory deficit: Overall memory ability: 7 th percentile Memory for verbal material: 2 nd percentile Memory for visual material: 50 th percentile Attention and concentration: 0.3 percentile Delayed recall: 7 th percentile In Dr. Arnold s opinion, such results are indicative of organic impairment of memory so serious that Ms. Manchur is unable to function effectively without assistance, rendering her unemployable.

6 - 6 - This Board also heard credible testimony from the Appellant s daughter, Tekina Anderson, who related that after Ms. Manchur s radiation treatments in 1984, her reasonable and pleasant mother s personality deteriorated into irrational and contradictory conduct marked by severe forgetfulness, leading to such unpleasantness that Tekina left home at the age of 15 and went to British Columbia. The witness stated she returned to Regina in 1994, although she did not move back home. When confronted about her conduct on one occasion, the witness testified Ms. Manchur said to her daughter: I would rather be a bitch than a dummy. That response was probably indicative of the Appellant s denial of her memory problem which she assumed to be a mental problem and, no doubt, caused the credibility question which influenced the majority decision of the prior Board. It was argued on behalf of the Respondent that the Appellant s disabilities as assessed by Drs. Gomez, Capp, and Arnold subsequent to 1994, are not evidence of Ms. Manchur s condition in However, considering the medical evidence of brain atrophy after radiation treatments and the subsequent gradual deterioration of the Appellant s memory, the inference seems overwhelming that her memory loss is directly related to brain atrophy. Moreover, this Board is satisfied the Appellant has met the onus of proving her cumulative memory and physical disabilities were so severe during the period

7 - 7 - since May 10, 1994, and up to the present time that she has been, and will likely continue indefinitely to be, incapable of regularly pursuing any substantially gainful occupation. The appeal is, therefore, allowed. DATED this 7 th day of October, (signed) J.K. Holmes J. I concur (signed) E.O. Fanjoy I concur (signed) P.C. Power J.