Canada Pension Plan (CPP) disability

Decision

[1] Leave to appeal to the Appeal Division of the Social Security Tribunal is granted.

Introduction

[2] The Applicant applied for a Canada Pension Plan disability pension and claimed that she was disabled by injuries from a motor vehicle accident and a worsening of her mental illness.  The Respondent denied her claim initially and after reconsideration.  She appealed to the Office of the Commissioner of Review Tribunals.  Pursuant to the Jobs, Growth and Long-term Prosperity Act, the matter was transferred to the Social Security Tribunal. On October 27, 2014 the General Division of this Tribunal dismissed the Applicant’s appeal.

[3] The Applicant requested leave to appeal to the Appeal Division of the Tribunal. She presented a number of arguments in support of her claim, including a repetition of some of the evidence that was presented to the General Division.  She also claimed that the General Division did not properly weigh the evidence before it, and disagreed with the conclusions the General Division made, including that her disability was not severe because she was not seeking treatment, that she had an obligation to seek out alternate employment, and that she had some capacity to perform substantially gainful work. Finally, she argued that the General Division did not consider her personal characteristics or weigh the conflicting medical evidence in reaching its decision.

[4] The Respondent filed no submissions.

Analysis

[5] In order to be granted leave to appeal, the Applicant must present some arguable ground upon which the proposed appeal might succeed:  Kerth v.  Canada (Minister of Development), [1999] FCJ No. 1252 (FC). The Federal Court of Appeal has also found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Fancy v. v. Canada (Attorney General), 2010 FCA 63.

[6] Section 58 of the Department of Employment and Social Development Act (DESD Act) sets out the only grounds of appeal that may be considered to grant leave to appeal a decision of the General Division (the section is set out in the Appendix).  Hence, I must decide whether the Applicant has presented a ground of appeal under section 58 of the DESD Act that has a reasonable chance of success on appeal.

[7] The Applicant presented a number of arguments as grounds of appeal.  To begin, she repeated some of the evidence and arguments presented for the General Division hearing, including:

1. a) The severity of her physical and psychological injures was significant, and demonstrated that her disability was severe;
2. b) A list of the physical injuries the Appellant suffered in the motor vehicle accident, the progression of her condition to chronic pain, the worsening of her depression and anxiety, her addiction to painkillers, and the onset of agoraphobia;
3. c) Memory difficulties and post-traumatic tension headaches were also diagnosed;
4. d) The Appellant suffered from forgetfulness, confusion and extreme emotions;
5. e) Pain management was a constant issue, and was treated at a methadone clinic;
6. f) The Applicant’s medication inhibited her ability to work;
7. g) The Applicant did not complete high school and has no skills for sedentary work;
8. h) The Appellant could not work in a competitive workplace as a result of her disability;
9. i) Because of her mental illness, the Appellant would not be able to work on a regular basis; and
10. j) The Applicant’s physical and mental illnesses must be examined individually and cumulatively to determine whether she was disabled at the relevant time.

This information and arguments were presented to the General Division.  Their repetition is not a ground of appeal set out in section 58 of the DESD Act. Therefore, these statements do not have a reasonable chance of success on appeal.

[8] The Applicant also disagreed with the weight given to the evidence by the General Division and put forward the following arguments in that regard:

1. a) The fact that the Applicant continued to be treated at the methadone clinic should have led to the conclusion that her disability was severe;
2. b) The General Division discounted reasonable explanations for the decrease in the Applicant’s attendance with specialists, being that there was nothing further they could do to assist her, and that she could not afford to pay for physiotherapy, chiropractic treatment, etc.; and
3. c) The General Division did not consider that the Applicant’s ability to seek out treatment was adversely affected by her struggle with addiction and mental illness.

With these arguments, the Applicant essentially asks this Tribunal to reevaluate and reweigh the evidence that was put before the General Division to reach a different conclusion. This is the province of the trier of fact.  The Tribunal deciding whether to grant leave to appeal ought not to substitute its view of the persuasive value of the evidence for that of the General Division which made the findings of fact (Simpson v. Canada (Attorney General), 2012 FCA 82). Therefore, these arguments do not raise grounds of appeal that have a reasonable chance of success.

[9] The Applicant contended, in addition, that the fact that she did not attempt to find alternate work should not have been found to weaken her case. She argued, based on the decision of the Pension Appeals Board in Boyle v. Minister of Human Resources Development (June 2003, CP18508) that such attempts were unnecessary as her employer held her position for her for a long period of time. The General Division correctly set out the law regarding a disability claimant’s obligation to attempt to work within her limitations if capacity to work is found.  In this case, the General Division concluded, based on an examination of all of the evidence, that the Applicant had some capacity to work.  As each case turns on its own facts, and the Boyle decision is not binding on the General Division, I am not satisfied that the General Division made an error of law in not considering it and applying it to this case.  Therefore, this ground of appeal does not have a reasonable chance of success.

[10] Further, the Applicant submitted that chronic pain is a subjective condition that does not up on any “objective” test. The main evidence that must be relied on therefore is the testimony of the Applicant regarding her pain.  Similarly, she argued that addiction can be a disabling condition.  The General Division decision summarized the written evidence.  The Applicant did not allege that it made an error in so doing.  However, the General Division decision did not refer to any evidence apart from the medical reports that were produced.  It is not clear whether the General Division considered any of the Applicant’s testimony or written evidence regarding her functional abilities.  The General Division may thus have based its decision on an erroneous finding of fact made without regard to the material before it. This ground of appeal has a reasonable chance of success on appeal.

[11] In addition, the Applicant contended that the functional impact of her condition was such that she could often not get out of bed, suffered from low energy, had poor mood, was irritable, dreaded leaving home, and had panic attacks that made her ability to function unpredictable.  It is not clear to me whether this evidence was considered by the General Division as the decision did not set out any of the Applicant’s personal characteristics or abilities with respect to activities of daily living.  This argument also points to an error of fact made by the General Division, and is thus a ground of appeal that may have a reasonable chance of success on appeal.

[12] Finally, the Applicant noted that the General Division decision acknowledged that the material presented contained medical reports with conflicting conclusions.  She argued that the General Division should have weighed this evidence in making its decision.  The General Division decision did not do so.  In R. v. Sheppard (2002 SCC 26), the Supreme  Court of Canada stated that reasons must be given for findings of fact made upon disputed and contradictory evidence, and upon which the outcome of the case is largely dependent.  In this case, I am satisfied that the General Division may have made an error of mixed law and fact by not weighing the conflicting medical evidence and providing reasons for relying on some or all of the reports in making its decision. This ground of appeal has a reasonable chance of success on appeal.

Conclusion

[13] The Application is granted because the Applicant has presented grounds of appeal that have a reasonable chance of success on appeal.
[14] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.

Appendix

Department of Employment and Social Development Act

58. (1) The only grounds of appeal are that

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.

(2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.