Canada Pension Plan (CPP) disability

Introduction

[1] The Applicant seeks leave to appeal the decision of the General Division dated June 4, 2014 (the “Leave Application”). The General Division dismissed her application for disability benefits, as it found that her disability was neither “severe” nor “prolonged” for the purposes of the Canada Pension Plan, by her minimum qualifying period of December 31, 2012. The Applicant submits that the General Division made its decision “without regard to the material before it”. 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] Does the ground of appeal raised by the Applicant have a reasonable chance of success?

Submissions

[3] The Representative for the Applicant (the “Representative”) submits that the General Division made its decision without regard for the material before it.  In particular, the General Division erred in finding that the Applicant had failed to follow all recommended treatment options.  In so doing, the Representative submits that the General Division erred in failing to follow Minister of Human Resources and Skills Development v. A.B.R. (January 27, 2009), CP 26100, (Pension Appeals Board).

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

Analysis

[5] According to subsections 56(1) and 58(3) of the 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”.

[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 reason she seeks an appeal falls within any of the grounds of appeal and that it has a reasonable chance of success, before leave can be granted.

[10] The Representative submits that the General Division made its decision without regard for the material before it.  In particular, the Representative submits that the General Division erred in finding that the Applicant had failed to follow all treatment recommendations, when her physician found those options inappropriate.  The physician confirmed that due to the Applicant’s physical and mental impairments, the Applicant was unable to return to the workforce. The Representative submits that, as a consequence, the General Division erred in failing to follow Minister of Human Resources and Skills Development v. A.B.R. (January 27, 2009), CP 26100, (Pension Appeals Board).  In that decision, the PAB considered the issue of the claimant’s purported non-compliance with treatment recommendations.  It wrote,

[26] As to the alleged failure to comply with the treatment recommendations of his doctors, in particular the recommendation by Dr. Leith that he be assessed at a chronic pain center, the evidence indicates that this was considered by Dr. White, but he apparently chose not to make such a referral. As the primary care physician it was his responsibility to make the referral if he considered it appropriate.  In our view, in these circumstances, the Respondent cannot be faulted for not attending a pain clinic.

[11] The General Division found that the Applicant had been fully compliant with treatment recommendations.  The General Division wrote,

Although there are a number of treatment options for her chronic pain and Achilles injury which were not explored prior to the [minimum qualifying period], the Tribunal finds that the [Applicant] has been compliant with her doctor’s advice.

. . .

Although there is no documentation of her family doctor’s recommendation to avoid undergoing a second carpal tunnel surgery the Tribunal finds that this is reasonable conclusion since she had a previous surgery. (sic)

[12] The General Division concluded that the Applicant’s disability could not have been severe for the purposes of the Canada Pension Plan, if her family physician did not refer her to any specialists (other than to a neurologist and a physiatrist [referred to in the Applicant’s letters of January 3 and January 26, 2012]) or prescribe medication for chronic pain, prior to the minimum qualifying period. The General Division drew a negative inference as to the severity of the Applicant’s disability from the fact that the physician had not made these recommendations.  The Representative submits that the General Division erred in this regard, as the family physician had explained why he had not prescribed other medication or referred her to other specialists.

[13] The documentation of the family physician before the General Division consists of the following:

• Clinical records of the family physician, which includes entries dated April 7, 2011 and December 8, 2011.  The entry dated April 7, 2011 indicates that she was waiting for a specialist for consultation in regards to her right shoulder pain, while the December 8, 2011 indicates that she had tried different treatment modalities including cortisone shots. There was no further mention of awaiting a consultation with a specialist.
• Canada Pension Plan Medical Report, with last visit date of April 7, 2011. The prognosis given was that the Applicant was not likely to improve as she has chronic bilateral tendinitis.  The family physician indicated that he would continue to treat her and that she would benefit from laser treatment or lithotripsy, although it was not covered by the Medical Services Plan.
• Letter dated March 9, 2013, in which he explained that the Applicant was not on any pain prescription medication, as there were concerns over a compromised liver.  He was of the opinion also that a specialist would not be able to offer much help in terms of treatment of her shoulders, due to the chronicity of her condition.

[14] The hearing file before the General Division also included other medical documentation, including a consultation report dated April 20, 2010 of an optometrist, lab test results and diagnostic reports.

[15] Typically, it would seem reasonable for the General Division to draw a negative inference as to an applicant’s severity from the fact that her physician did not find it warranted to prescribe other pain relief medication or to make referrals to other medical practitioners or specialists, but here, the family physician appears to have addressed these concerns in his letter of March 9, 2013.

[16] It is unclear as to what extent the General Division considered the letter of March 9, 2013. The General Division may have been dismissive of or given very light weight to the physician’s letter, as it lacks detail in addressing some material points and in light of the fact that there appears to have been a referral to a specialist made by the physician early on in April 2011.  There is no indication by the physician in his letter of March 9, 2013 as to whether the Applicant was ever seen by the specialist, or if the Applicant continued to await a consultation date, or if the appointment was cancelled. The physician also wrote that a specialist would not be able to offer “much help”, but it is unclear if some help or some relief of the Applicant’s symptomology – however slight – could have been forthcoming.  So too there is no indication if the physician ever explored recommending other pain relief medication, or for that matter, considered referring the Applicant to a pain clinic, chronic pain specialist, physiatrist or other.

[17] While generally an applicant cannot be faulted for relying upon and following the recommendations of her primary treating health caregiver, in this particular case, there appears to have been a referral to a specialist for her right shoulder, as evidenced by the April 7, 2011 entry in the clinical records of the family physician. The Applicant also appears to recognize that it was not unreasonable for her to have been seen by a physiatrist.  She refers to this in her letters dated January 3, 2012 and January 26, 2012, that she had seen a “sports Dr. at UBC”.

[18] The Applicant has satisfied me that the General Division may have based its decision on an erroneous finding of fact, that her disability cannot have been that severe if her family physician did not prescribe other pain relief medication for her and did not make any referrals.  I am of the view that there may be an arguable case as to whether an applicant’s disability could well be considered severe, if it could be seen that her physician considered but decided against prescribing any pain relief medication or against making any referrals to specialists, even if other physicians or prevailing medical thought might decide on another course of action.  I would expect however the medical evidence of the physician to be consistent in this regard.

[19] Issues which the parties may wish to address on appeal include the following:

1. (a) Is the appeal an appellate review or appeal in the nature of judicial review? What is the level of deference which is owed by the Appeal Division to the General Division?
2. (b) What is the applicable standard of review?
3. (c) Did the General Division base its decision on an erroneous finding of fact made without regard for the evidence before it?  The parties may wish to address some of the considerations which I have raised in paragraphs 16 to 18.
4. (d) If so, and if a correctness standard applies, what outcome should the General Division have reached?  If a reasonableness standard applies, can the decision of the General Division be justified, is it transparent and intelligible and does it fall within a range of possible, acceptable outcomes which are defensible in respect of the law and the facts before it?
5. (e) Is the appeal moot, in light of the fact that there were other bases upon which the General Division concluded that the Applicant’s disability could not be found severe, and in light of the fact also that the General Division found that the Applicant’s disability was not prolonged for the purposes of the Canada Pension Plan?  And
6. (f) If the General Division erred and the decision is seen to be unreasonable, what is the appropriate remedy, if any?

[20] I invite the parties to make submissions also in respect of the mode of hearing and the appropriateness for such.

Conclusion

[21] The application for leave is granted.

[22] This decision granting leave to appeal in no way presumes the result of the appeal on the merits of the case.