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Decision
[1] The Member of the Appeal Division of the Social Security Tribunal (the “Tribunal”) grants leave to appeal.
Background
[2] The Applicant seeks leave to appeal the decision of the Review Tribunal issued on July 3, 2013. The Review Tribunal had determined that the Respondent was entitled to a Canada Pension Plan disability pension and that payments would commence as of June 2009. The Applicant filed an application requesting leave to appeal (the “Application”) with the Tribunal on October 4, 2013, within the time permitted under the Department of Employment and Social Development (DESD) Act.
Issue
[3] Does this appeal have a reasonable chance of success?
The law
[4] According to subsections 56(1) and 58(3) of the DESD Act, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” and “the Appeal Division must either grant or refuse leave to appeal”.
[5] Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”.
Applicant’s submissions
[6] The Applicant submits that the Review Tribunal made an erroneous finding of fact without regard for the material before it. In particular, the Review Tribunal arrived at its decision, “despite evidence that the Respondent remained capable of work and did not reasonably comply with suggested treatments”.
[7] The Applicant further submits that, in the event that leave is granted, the Respondent ought not to be granted a disability pension, as her disability does not meet the severe and prolonged requirements under the Canada Pension Plan.
Respondent’s submissions
[8] The Respondent has not filed any written submissions.
Analysis
[9] Although a leave to appeal application is a first, and lower, hurdle to meet than the one that must be met on the hearing of the appeal on the merits, some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC).
[10] In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, the Federal Court of Appeal found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success.
[11] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:
- (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[12] For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division. I am required to determine whether any of the Applicant’s reasons for appeal fall within any of the grounds of appeal and whether any of them have a reasonable chance of success, before leave can be granted.
[13] The Applicant submits that the Review Tribunal made various erroneous findings of fact. For the purposes of this leave application, I do not require that there be an actual demonstrated error on the part of the Review Tribunal, but in assessing this ground of appeal raised by the Applicant, I need to satisfy myself that the Review Tribunal made or did not make the finding which the Applicant submits the Review Tribunal made or failed to make.
(a) capacity for work
[14] The Applicant submits that the Review Tribunal based its decision, in part, on the finding that the Respondent’s doctors were “unanimous in their opinion that she is incapable of work of any kind”. The Applicant submits that other than the Respondent’s family physician, none of her other physicians provided any opinions on her capacity to work and instead, merely recommended various treatment options. The Applicant referred in particular to the specialist reports of Drs. Mahar, Yeboah and Harth.
[15] On the face of it, it appears as if the Applicant is requesting that we reassess and re-weigh the medical evidence. Although the Applicant has reviewed the specialist reports and suggests that they ought to be preferred over those of the family physician, this submission does go well beyond being a request for a reassessment of the evidence. This is so as the Review Tribunal may have based its decision on a finding that the medical opinions were “unanimous” when they may not have been. If the medical opinions were erroneously characterized as “unanimous”, this could have led the Review Tribunal to conclude that the Appellant has a severe disability, when it might not have otherwise.
[16] I note also that the Review Tribunal wrote that the Respondent’s testimony was “entirely supported by the medical evidence”. If the medical opinions were characterized as “unanimous” if they may not have been, this might have impacted how the Review Tribunal reacted to the Respondent’s testimony.
[17] Given these considerations, the Applicant has satisfied me that this ground raises an arguable case. I do not purport to determine whether the medical opinions were unanimous or not at this leave stage, or whether the Review Tribunal might have preferred or assigned more weight to the family physician’s opinion over those of the specialists, as that would require a more thorough review and, to some extent, some analysis of the medical opinions. That would be beyond the scope of a leave application. The Respondent of course is entitled to address these submissions and rebut any allegations by the Applicant that the specialists’ medical opinions do not speak to the issue of her disability and incapacity.
(b) compliance with treatment
[18] The Review Tribunal found that the Respondent had been fully compliant with all treatment options available to her, but that none of them provided relief. The Review Tribunal concluded from this that the Respondent has a prolonged disability.
[19] The Applicant submits that the Review Tribunal’s finding that the Respondent had “followed all treatment recommendations available to her” (my emphasis) cannot be supported by the evidence before it, as there were some treatment options which the Respondent did not pursue, for various reasons. The Applicant noted that one of her physicians had suggested that she attend a fibromyalgia program.
[20] The Applicant also referred to the Respondent’s explanation for why she had yet to attend a fibromyalgia program. The Review Tribunal did not appear to address whether it considered the fact that she had yet to attend such a program to have been reasonable under the circumstances.
[21] The Applicant relies on a number of authorities, including Lalonde v. Canada (Minister of Human Resources Development), 2002 FCA 211, Butler v. Canada (Minister of Social Development), 2007 LNCPEN 60 and Kambo v. Canada (Minister of Human Resources Development), 2005 FCA 353. The Applicant submits that to be found to have a severe and prolonged disability, one must follow his or her physicians’ treatment recommendations, and a claimant who unreasonably refuses to undergo recommended treatment may not be entitled to receive a disability pension. A claimant could also be excused from non-compliance with treatment recommendations, provided that his or her non-compliance could be seen as reasonable.
[22] The Applicant has satisfied me that this ground raises an arguable case. I am not determining what treatment recommendations had been made, whether the Respondent had been fully compliant with them, and whether any non-compliance might have been reasonable. However, if the Review Tribunal made an erroneous finding of fact based on whether she was fully compliant with all treatment recommendations, this could have led the Review Tribunal to conclude that the Respondent has a prolonged disability, when it might not have otherwise.
Conclusion
[23] The Application is granted.
[24] This decision granting leave to appeal in no way presumes the result of the appeal on the merits of the case.