Canada Pension Plan (CPP) disability

Introduction

[1] The Applicant seeks leave to appeal the decision of the General Division dated August 4, 2014 (the “Leave Application”). The General Division dismissed his application for disability benefits, as it found that his disability was not “severe” for the purposes of the Canada Pension Plan, by his minimum qualifying period of December 31, 2005.  The Applicant submits that the General Division failed to consider various facts and failed to give the proper weight to the medical reports of both his family physician and a specialist.  To succeed on this leave application, the Applicant must persuade me that the appeal has a reasonable chance of success or that there is an arguable case to be made.

Issue

[2] Do any of the grounds of appeal raised by the Applicant have a reasonable chance of success or can an arguable case be made?

Submissions

[3] The Applicant submits that the General Division made the following errors:

1. (a) Failed to give proper weight to the opinions of his family physician and a specialist, that he was disabled during the time he qualified for disability benefits;
2. (b) Failed to take into account that he has been on heavy pain medication since he last qualified for disability benefits. At the time of his Leave Application, he was taking 30 milligrams of Tylenol #3, upwards of eight times daily.  He was also taking 0.5 milligrams of Baclofen three times daily.  He asked his family physician but was refused stronger medication; and,
3. (c) Failed to take into account the fact that he was terminated from his employment because of his disability. His employer refused to re-hire him because of his medical condition.

[4]  The Respondent has not filed any written submissions.

Analysis

[5] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (“DESDA”), “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”.

[6] Subsection 58(2) of the DESDA provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”.

[7] 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 required for leave to be granted:  Kerth v. Canada (Minister of Human Resources Development), [1999] FCJ No. 1252 (FC).  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.

[8] Subsection 58(1) of the DESDA 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.

[9] The Applicant is required to satisfy me that the reasons in his Leave Application fall within any of the enumerated grounds of appeal under subsection 58(1) of the DESDA and that at least one of them has a reasonable chance of success, before leave can be granted.

[10]   The Applicant alleges that the General Division failed to take into account various facts and that it also failed to assign greater weight to some of the medical evidence before it.  In Simpson v. Canada (Attorney General), 2012 FCA 82, the Applicant’s counsel in that case identified a number of medical reports which she said that the Pension Appeals Board ignored, attached too much weight to, misunderstood, or misinterpreted.  In dismissing the Applicant’s application for judicial review, the Federal Court of Appeal held that,

First, a tribunal need not refer in its reasons to each and every piece of evidence before it, but is presumed to have considered all the evidence. Second, assigning weight to evidence, whether oral or written, is the province of the trier of fact. Accordingly, a court hearing an appeal or an application for judicial review may not normally substitute its view of the probative value of evidence for that of the tribunal that made the impugned finding of fact…

[11] The General Division was acting within its jurisdiction as the trier of fact in sifting through the relevant facts, assessing the quality of the evidence, determining what evidence, if any, it chose to accept or disregard, and in deciding on its weight, before ultimately coming to a decision based on its interpretation and analysis of the evidence before it.  Hence, I can find no arguable case which might have a reasonable chance of success, arising out of the fact that the General Division did not refer to some of the evidence before it and chose to place less weight on some of the evidence than the Applicant submits was appropriate.

[12] In any event, I find that the General Division was cognizant of the Applicant’s employment history with Casino Windsor and the fact that the Applicant had been terminated due to his frequent absences after sustaining the shoulder injury in 1999.  The General Division discussed the Applicant’s employment history at paragraphs 11 and 33 of its decision.

[13] While the General Division may have described the Applicant’s treatment as “conservative”, I find also that the General Division was aware that the Applicant was taking Tylenol 3, along with other medications.  The General Division referred to the use of medications at paragraphs 16 and 26 of its decision.

[14]   The Applicant has not satisfied me that there is a reasonable chance of success or any arguable case on the grounds of appeal which he has raised.

Conclusion

[15] The Application is refused.