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Decision
[1] The Social Security Tribunal (the “Tribunal”), refuses leave to appeal.
Background
[2] The Applicant seeks leave to appeal the decision of the General Division issued on August 30, 2014. By that decision, the General Division Member determined that a Canada Pension Plan (“CPP”), disability pension was not payable to the Applicant. The General Division Member found that, as of the date of her minimum qualifying period of December 31, 2012, the Applicant was not suffering from a severe and prolonged disability.
[3] The Tribunal received the Application requesting Leave to Appeal (the “Application”), on November 24, 2014, which is well within the time limit for making the Application.
Grounds of the application
[4] Counsel for the Applicant submits that the General Division erred in law in making its decision, whether or not the error appears on the face of the record. Counsel’s rationale for this submission is found under the rubric, “Grounds of the Appeal”. He submits that the General Division failed to give adequate consideration to the medical documentation with respect to the nature and extent of Ms. A. F.’s multiple injuries and disabilities. As well Counsel for the Applicant took the position that the General Division failed to weigh the impact on the Applicant of all of her injuries.
[5] Counsel for the Applicant also provided a second rationale for the claim that the General Division erred in law in making its decision. He submitted that the General Division placed a great deal of importance on its conclusion that the Applicant failed to make efforts to look for work and to retrain. In the submission of Counsel for the Applicant, the General Division failed to take into consideration the Applicant’s meeting with her employer to return on modified duties and her enrolment in on-line courses towards a degree in immigration counselling.
Issue
[6] To grant leave to appeal, the Tribunal must decide whether the appeal has a reasonable chance of success?
The law
[7] The applicable statutory provisions governing the granting of Leave are found at ss. 56(1), 58(1), 58(2) and 58(3) of the DESD Act. Ss. 56(1) provides that an Applicant must first seek and obtain leave to bring his or her appeal to the Tribunal’s Appeal Division which, following ss. 58(3), must either grant or refuse leave appeal.
[8] The grounds of appeal are set out at ss. 58(1) 58(2) and 58(3) and 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.
Analysis
[9] In order to grant leave to appeal, the Tribunal must be satisfied that the appeal would have a reasonable chance of success. This requires the Tribunal to determine whether any of the Applicant’s reasons for the Application fall within any of the enumerated grounds of appeal. This determination is an anterior step that allows the Tribunal to assess the chance of success of the appeal. For the reasons set out below the Tribunal is not satisfied that the appeal has a reasonable chance of success.
[10] Counsel for the Applicant has alleged that the General Division Member committed errors of law in his assessment of the medical evidence and with respect to the view he took of the Applicant’s efforts to work and/or retrain.
[11] A reading of the decision shows that the General Division Member was not only alive to the Applicant’s medical conditions, he was also alive to the prognoses for recovery that were made by the several medical practitioners who treated the Applicant. Further, the General Division Member actively considered the Applicant’s “Villani” factors, namely that she is young and very well educated with experience (and potential employment) in two fields of endeavour.
[12] With respect to the first submission that the General Division Member failed to give adequate consideration to the cumulative effect of the Applicant’s medical conditions, the Tribunal finds that the General Division Member provided an extensive review of the medical documentation that was submitted on the Appellant’s behalf. The General Division Member noted that the report of the Applicant’s family physician of March 2012 was the last medical report. No further medical reports were submitted to the Tribunal between March 2012 and the hearing date of August 20, 2014.
[13] At paragraph 39 of the decision, the General Division Member noted that the Applicant’s evidence was to the effect that she sustained injuries to her neck and back and aggravated an injury to her right shoulder in a motor vehicle accident in December 2009 and has suffered from headaches, neck, back, right shoulder and arm pain since. At the same time the General Division Member noted that there was also evidence, which included the Applicant’s testimony, pointing to and substantiating “an improvement in her condition with treatment, including physiotherapy, massage therapy, chiropractic treatment, right shoulder surgery, and psychotherapy prior to the end of her MQP”.Footnote 1
[14] In these circumstances the Tribunal is hard put to find an error in the manner in which the General Division Member assessed the medical evidence and the Member’s conclusions concerning that medical evidence. The Tribunal rejects the submission that the General Division Member failed to weigh the impact of all of the Applicant’s injuries, thereby falling into error.
[15] The Tribunal is also not satisfied that the Applicant’s second submission is sufficient to ground an appeal. Counsel for the Applicant submitted that the General Division improperly concluded that the Applicant failed to make efforts to look for work and to retrain. In Counsel’s submission, the General Division did not give appropriate consideration to the Applicant’s meeting with her employer to return on modified duties neither did he properly consider her enrolment in on-line courses towards a degree in immigration counselling.
[16] The General Division Member addressed the Applicant’s testimony concerning her attempts to find alternate work and to retrain at paragraphs 14 and 15 of the decision as well as in the Analysis at paragraphs 40-45.
[17] At paragraphs 14-15 the General Division Member writes,
[14] The Appellant has not discussed returning to work as a supply teacher with her employer since she last taught in December 2009. She has had recent discussions with her supervisor at CBSA regarding returning to work. She said she would require further accommodation, as she does not believe she can meet "use of force" requirements or successfully complete firearm training because of her condition. She does not think such accommodation is available.
[15] The Appellant has not looked for other work or attended any retraining programme since she last worked in December 2009. She is currently enrolled in a college level course to obtain qualification as an immigration consultant, which will permit her to start her own business. She was asked if there were any jobs she could do regularly. She said she could possibly do some jobs, but not without difficulty. The Appellant testified she could not return to regular duties as a border services officer, as that position required prolonged sitting, standing, and being able to meet requirements for use of force and firearms. She characterized supply teaching as a stressful position, which she is precluded from because of headache, and difficulties writing and sitting because of shoulder and back pain.
[18] The General Division Member went on to examine the Applicant’s attempts to find alternate work. The Member found there was only one attempt to find work, and that was the meeting with CBSA. The Member also found that the Applicant remained on the rosters of both of her former employers and could accept or reject work when and if offered to her. In the Tribunal’s view it was reasonable to conclude, as the General Division Member did, that the Applicant’s sole meeting with her CBSA supervisor in 2012 was a scant effort to find other work. The Tribunal finds no error in the General Division Member’s conclusions and findings in relation to the Applicant’s attempt to find alternate employment.
[19] Similarly, the Tribunal finds no error in the General Division Member’s conclusions and findings in relation to the Applicant’s efforts to retrain, which came somewhat late in the day. When placed in the context of a psychologists report that the Applicant had been encouraged to work and also when placed in the context of the Applicant’s testimony that she was better able to cope as a result of the psychologist’s treatment, the Tribunal finds no error in the General Division Member’s conclusions. In the circumstances, the Tribunal finds that the decision is sufficiently clear to allow it to understand how the decision was arrived at. Further, in all of the circumstances of the case, the Tribunal finds that the decision was one that the General Division could, reasonably, have come to.
Conclusion
[20] The Application is refused.