Canada Pension Plan (CPP) disability

Decision

[1] The application for leave to appeal is refused.

Introduction

[2] By a decision issued March 8, 2013, a Review Tribunal determined that the Applicant was not entitled to a Canada Pension Plan (CPP), disability pension. In its decision, the Review Tribunal concluded that as of his Minimum Qualifying Period (MQP) date of December 31, 2011, the Applicant did not suffer from a severe disability that meets the definition of, contained in CPP para. 42(2)(a).

Grounds of the appeal

[3] The Applicant seeks leave to appeal this decision, (the “Application”).  On his behalf, the Applicant’s Counsel submits the Review Tribunal committed certain errors of law and made 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, namely,

1. a) The Review Tribunal dismissed the medical evidence of Drs. Jacques (March 2, 2011 and March 8, 2012) and Gow (a neuropsychological specialist) that appear to find that the Applicant’s condition prevented a return to work of any kind. Dr. Jacques is the Applicant’s family physician. Instead, The Review Tribunal appeared to have based its denial on the fact that the Applicant has or had not yet attended a pain clinic programme in Ottawa. Counsel cites para. 29 of the Review Tribunal decision to support this allegation. In the submission of the Applicant’s counsel, the Review Tribunal ought to have explored the issue of the location of the pain clinic, which is in Ottawa. Specifically, the Review Tribunal ought to have considered the length of time that it would take the Applicant to make the round trip from his home in X to Ottawa.
2. b) Counsel for the Applicant further submits that the Review Tribunal erred in law when it applied Lombardo v. MHRD (July 23, 2001), CP 12731 (PAB) to find that the Applicant had failed to demonstrate a good faith preparedness to follow appropriate medical advice. Counsel for the Applicant submitted the Review Tribunal ought to have applied Benout v. MHRD (September 12, 1997), which held that the applicant was not required to undergo cognitive therapy and attend a pain management program for a chronic pain syndrome as recommended  by  a  treating  psychologist  because  it  was  not  offered  in  the applicant’s community and did not offer a predictable expectation of relief form the applicant’s symptoms.

The Medical Evidence

[4] The Review Tribunal Decision contained an extensive review of the medical evidence that included references to the three reports mentioned. A listing of the medical reports that were before the Review Tribunal includes,

1. The Medical Report submitted by Dr. Jacques, the Applicant's family doctor of 3years, dated March 2, 2011, which accompanied the Application (para. 14). Dr. Jacques lists the following medical conditions:
   1. a) Chronic pain syndrome (CPS);
   2. b) Left wrist injury which had required surgery;
   3. c) Sleep apnea; and
   4. d) Depression.

Commenting on the effect of the Applicant’s medical conditions, Dr. Jacques remarked that since the motor vehicle accident (MVA), the Appellant had developed total body pain and was unable to work at his previous job.

2. Operative report dated August 7, 2008.
3. Sleep Laboratory Consultation Report dated June 16, 2010.
4. Report of Dr. Joviasas a rheumatologist, dated December 14, 2010. Finding that the Applicant’s history and examination were consistent with CPS consistent with fibromyalgia.
5. Letter report by Dr. Jacques dated March 8, 2012 opining that the Applicant’s impairments would most likely prevent him from returning to work in the foreseeable future.
6. Report dated March 21, 2012 noting that on December 13 and 14, 2011, the Applicant was assessed by Dr. Gow and Dr. Henry, Psychologist, to determine if he had sustained a brain injury in the MVA. This report concluded that on the basis of the available evidence, the probability was high that the Appellant did sustain a mild traumatic brain injury. The report advised that a return to work should be considered a long term goal and that improvement in pain management, mood and coping will be required.  It was noted that the Appellant had not implemented the recommendations made by Dr. Jovaisas of normalizing sleep, increasing his level of activity and exercise and better pacing of his activities. Dr. Gow suggested that a very focused, goal directed chronic pain programme be designed to help the Appellant address his maladaptive and entrenched views of disability and rehabilitation be prescribed.
7. Letter report to Applicant’s legal representatives dated June 19, 2012 by Dr. Gow to the Applicant’s Counsel noting that questions pertaining to the Applicant’s physical impairments and their effect on his employability were outside of her area of expertise.  Dr. Gow opined that due to the Applicant’s passive response style and resistance to treatment his prognosis for a return to work was guarded. However, even after making this disclaimer, Dr. Gow goes on to answer this question in the affirmative, writing,
   
   

   “Yes. Mr. R. C. presented with moderate levels of depressive symptoms, severe anxiety symptomology and hyper vigilance. In addition, he experiences chronic pain and headaches which become progressively worse throughout the day and which he perceives to be pervasive, constant and disabling. Mr. R. C.'s use of passive and maladaptive coping strategies, his anger, and his mood symptoms related to chronic pain syndrome continue to pose significant barriers for a return to gainful employment. In addition, results from the neuropsychological evaluation suggest difficulties in executive function including attention, working memory, task monitoring and a conservative response style. Difficulties in executive control may undermine efficient new learning and retrieval and can result in poorer memory performance.  In light of these cognitive difficulties, in tandem with Mr. R. C.'s psychological difficulties, and coping style, the prognosis for a successful retraining program toward a gainful occupation is also extremely guarded.”

[5] The Application is properly before the Social Security Tribunal (“the SST”). Pursuant to the provisions of Section 260 of the Jobs, Growth and Long-Term Prosperity Act, the Pension Appeals Board (PAB) transferred the Application to the SST on April 30, 2013, the PAB itself having received the application on April 26, 2013.

Issue

[6] Does the Appeal have a reasonable chance of success?

The law

[7] The applicable statutory provisions governing the grant of leave are ss. 56(1), 58(1), 58(2) and 58(3) of the Department of Employment and Social Development (DESD) Act.  Ss. 56(1) provides, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” while ss. 58(3) mandates that the Appeal Division must either “grant or refuse leave to appeal.” Clearly, there is no automatic right of appeal.  An applicant must first seek and obtain leave to bring his or her appeal to the Appeal Division, which must either grant or refuse leave.

[8] Ss. 58(2) of the DESD Act sets out the applicable test for granting leave and provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

[9] Ss. 58(1) of the DESD Act sets out the grounds of appeal as being limited to the following:

1. a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. 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.

[10] On an application for leave to appeal the hurdle that an applicant must meet is a first, and lower one than that which must be met on the hearing of the appeal on the merits. However, to be successful, the applicant must make out some arguable case^{Footnote 1} or show some arguable ground upon which the proposed appeal might succeed.  In St-Louis^{Footnote 2}, Mosley, J. stated that the test for granting a leave application is now well settled. Relying on Calihoo,^{Footnote 3} he reiterated that the test is “whether there is some arguable ground on which the appeal might succeed.” He also reinforced the stricture against deciding, on a Leave Application, whether or not the appeal could succeed.

[11] For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division.

Analysis

Did the Review Tribunal dismiss, disregard or otherwise misapprehend or misapply the medical evidence?

[12] As stated earlier, the Applicant’s representative submits the Review Tribunal made 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. This objection was raised in respect of the Review Tribunal’s alleged disregard of the medical reports of the Applicant’s family physician, Dr. Jacques dated March 2, 2011 and March 8, 2012 and the medical report of Dr. Gow, the neuropsychological specialist. The Applicant’s Counsel contends that these three reports support the contention that the Applicant’s medical conditions prevented a return to work of any kind.

[13] On considering this first ground of appeal the Tribunal is not satisfied that the Applicant has a reasonable chance of success on this ground. The Review Tribunal decision shows that it did consider the three medical reports that the Applicant submits were disregarded. Specifically, at para. 22 under the rubric “Submissions”, these reports are alluded to in detail.  Accordingly, it is clear that the Review Tribunal had knowledge of the particular reports.  It is also clear from its statements in paragraph 29 of the decision that the Review Tribunal, in fact, considered the medical reports, however, having considered them the Review Tribunal came to a conclusion other than the one that the Applicant would have liked.  This is not a sustainable ground of appeal.  The Tribunal notes that paragraph 29 of the Review Tribunal decision states,

(29) "Applicants for disability entitlement should demonstrate a good faith preparedness to follow appropriate medical advice ...” Lombardo v. MHRD (July 23, 2001), CP 12731 (PAB). The Appellant provided no reasonable explanation for not making an effort to follow the recommendations of Dr. Jovaisas and Dr. Gow. Although there are no guarantees that enrolment in such a program would have been beneficial, the Tribunal found the onus was on the Appellant to make a sincere effort in this regard. The Tribunal found he had not met the test set out in the referenced case law.”

[14] With respect to the medical reports that were provided by Dr. Jacques, the Tribunal notes that at Question 6A of the CPP required Medical Report, Dr. Jacques responds “No” to questions that ask whether there is supporting evidence for the main medical condition. Accordingly, he did not submit either a laboratory report or an x-ray report with the document.

[15] Further, when the Medical Report required Dr. Jacques to describe relevant physical findings and functional limitations, Dr. Jacques refers the Tribunal to the medical conclusions of Dr. Jovaisas before opining that the Applicant is “unable to do any kind of physical work. He cannot lift, twist, push or pull. Can only sit or stand for limited periods. He is untrained too, and has not the mental capacity to do anything but physical work.  He remains in constant pain.”

[16] In the medical report of Dr. Jovaisas that Dr. Jacques references, Dr. Jovaisas found that the Applicant’s “history and examination were consistent with a Chronic Pain Syndrome consistent with fibromyalgia. He also found that the Applicant continued to have significant sleep disorder despite the use of a CPAP machine.”

[17] In the Tribunal’s view while Dr. Jacques has opined that the Applicant cannot do any kind of physical work, and has concluded that the Applicant has difficulty lifting, twisting, pulling or pushing he failed to provide a clear reason why the Applicant’s medical condition, lack of training and mental capacity makes him unemployable for all types of work or in the terms of the statutory provision renders the Applicant “incapable regularly of pursuing any substantially gainful employment.”

[18] Furthermore, while at Box 10 of the CPP Medical Report, Dr. Jacques offered the prognosis set out below, on the evidence before it the panel is not persuaded that the Review Tribunal disregarded this evidence in favour of a negative finding based on the Applicant’s failure to attend at the pain clinic.  At Box 10 of the CPP Medical Report Dr. Jacques writes,

“Since being hurt in the MVA, Mr. R. C. has essentially been unable to work. He attempted a graduated RTW but was unable to follow through with this, and now is unable to work. Despite medications, physiotherapy, he remains significantly disabled in both his work and his home life. I do not think he will be able to be remuneratively employed in the foreseeable future.”

[19] The Review Tribunal gave little weight to Dr. Jacques opinion because it noted that Dr. Jacques first saw the Applicant in 2008 and because there was a paucity of medical evidence to support his prognosis and conclusions.

[20] However, in the Tribunal’s view the evidence that weighed most against the Applicant was the evidence he himself provided when he was given an opportunity to explain to the Review Tribunal why he had failed to attend the pain clinic. The Review Tribunal decision states that the Applicant failed to offer a reasonable explanation for why he did not attend the pain clinic as recommended by his treating physicians. Reference is made to paragraph 12 of the Review Tribunal decision, namely,

“When queried as to whether a pain management program had been recommended the Appellant responded that it had been but he had not followed up on the suggestion. He gave no explanation for not doing so.”

[21] The onus rested on the Applicant to establish that he had a severe disability within the meaning of CPP para. 42(2)(a).  On the face of the Review Tribunal decision the Applicant failed to provide a reasonable explanation for his failure to attend the pain clinic, therefore, the Tribunal is not persuaded that the Review Tribunal erred when it based its decision in part on the Applicant’s failure to follow prescribed medical treatment. The Tribunal finds that Benoit v. MHRD (September 12, 1997) CP 5406 cannot apply to the Applicant’s case because it is clear that in Benoit the PAB had been provided with an explanation for the non- compliance that it found reasonable.  In the Applicant’s case, the Review Tribunal decision clearly states that no explanation of any kind had been forthcoming from the Applicant.

[22] In relation to Dr. Gow’s report, because of internal inconsistencies in her statements, the panel is not persuaded that the Review Tribunal committed any error in regard to the weight it ascribed to her report. As noted earlier, Dr. Gow prefaces her Letter Report to Applicant’s legal representatives with the statement that questions pertaining to the Applicant’s physical impairments and their effect on his employability was outside of her area of expertise, yet goes on to answer those very questions in the affirmative.

[23] In the Tribunal’s view the Review Tribunal was entitled to decide what weight it would put on Dr. Gow’s report and, in all the circumstances of the case, to assign little weight to it, which it apparently did.

[24] Further, a reading of the Review Tribunal decision reveals that the Applicant’s failure to attend the pain management clinic was not the sole or even the main basis for the Review Tribunal decision.  The decision appears to have been based substantially on the absence of medical evidence to support a severe disability.

(30) On the CPP medical report, the Applicant's family physician Dr. Jacques opined that he did not feel the Applicant was employable in the foreseeable future.  On March 2, 2012, in a letter to the Applicant's legal representative, Dr. Jacques repeated this opinion.  In considering Dr. Jacques’ opinion the Tribunal noted that he began seeing the Applicant in September 2008.  While respectful of Dr. Jacques’ opinion the Tribunal concluded that there was insufficient objective medical evidence to support his opinion and found they could not put sufficient weight to it to find the Applicant's disability met the severe criterion.

[25] In light of the above analysis the Tribunal is not satisfied that the appeal would have a reasonable chance of success on the first ground.

Did the Review Tribunal misapply the law in assessing whether or not the Applicant was required to follow appropriate medical advice?

[26] It is settled law that in order to be entitled to a CPP disability pension, an applicant is obligated to abide by and submit to treatment recommendations and, if this is not done, the applicant must establish the reasonableness of his or her non-compliance. Bulger v MHD (May 18, 2000) CP 9164.

[27] The Bulger principle is repeated in Lombardo, and in the paragraph cited by Counsel for the Applicant  which states,

(29) Applicants for disability entitlement should demonstrate a good faith preparedness to follow appropriate medical advice ... " Lombardo v. MHRD (July 23, 2001), CP 12731 (PAB).”

[28] As stated earlier the Applicant, unlike the appellant in Benoit, did not provide any let alone a reasonable explanation for failing to make an effort to follow the recommendations of Dr. Jovaisas and Dr. Gow. Accordingly, the Tribunal finds no error on the part of the Review Tribunal in its assessment and application of the law in relation to the requirement to follow recommended treatment. Thus, the second ground of the Application also fails and the Application fails in its entirety.

Conclusion

[29] Leave to Appeal is refused.