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Introduction
[1] The Applicant applied for a Canada Pension Plan disability pension. She claimed that she was disabled by back pain and mental illness. The Respondent denied her claim initially and after reconsideration. The Applicant appealed to the Office of the Commissioner of Review Tribunals. The matter was transferred to the General Division of the Social Security Tribunal pursuant to the Jobs, Growth and Long-term Prosperity Act on April 1, 2013. The General Division held a teleconference hearing and on December 31, 2014 dismissed the Applicant’s appeal.
[2] The Applicant sought leave to appeal to the Appeal Division of the Social Security Tribunal. She argued that the General Division erred in fact, in law, and breached the principles of natural justice by not providing her with a fair hearing.
[3] The Respondent filed no submissions.
Analysis
[4] 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 41, Fancy v. v. Canada (Attorney General), 2010 FCA 63.
[5] The Department of Employment and Social Development Act (DESD Act) governs the operation of this Tribunal. Section 58 of the DESD Act sets out the only grounds of appeal that can be considered to grant leave to appeal a decision of the General Division (see the Appendix to this decision).
[6] The Applicant presented a number of arguments as grounds of appeal. First, she argued that the General Division decision erred as it made no assessment of her credibility or her functional limitations. The General Division decision did not contain any specific finding with respect to the Applicant’s credibility. It committed no error by not doing so. This is not a ground of appeal that has a reasonable chance of success on appeal.
[7] The General Division decision summarized the Applicant’s testimony and the written evidence regarding her functional abilities and limitations, including the impact of pain and depression on this. It made no error by not using the term “functional limitation” in the written decision or not specifically considering her limitations in activities of daily living. I am satisfied that when the decision is read as a whole, the General Division considered the Applicant’s functional abilities and limitations. This argument is not a ground of appeal that has a reasonable chance of success on appeal.
[8] The Applicant further submitted that the General Division breached the principles of natural justice as it did not provide the Appellant with a fair hearing because it did not assess her oral testimony or her credibility in the written decision. In Simpson v. Canada (Attorney General), 2012 FCA 82 the Federal Court of Appeal concluded that it is not necessary for a written decision to contain every fact and every argument that is placed before it. The decision contained a summary of the Applicant’s testimony and the written evidence. I am not persuaded that the General Division erred by not assessing this evidence. The Applicant did not allege that she was unable to fully present her case, know the case that she had to meet, or that the matter was not decided by an impartial tribunal. Therefore, I am not satisfied that there was any breach of natural justice. This argument is not a ground of appeal that has a reasonable chance of success on appeal.
[9] Similarly, the Applicant contended that the General Division erred in concluding that the Applicant had abilities except for those listed as restrictions in a medical report. The medical report which set out these physical restrictions was considered along with the Applicant’s testimony and the other evidence. I am not satisfied that the General Division decision erred in its consideration of this medical report.
[10] The Applicant also alleged that the General Division decision erred as it did not apply the “real world approach” in making its decision. She argued that, at age X, she could not be described as “young”, and with a college diploma her educational achievements were not beyond what many people have achieved. These arguments may point to errors of fact made by the General Division, however, I am not satisfied that any such errors were made in a perverse or capricious manner, or without regard to the material presented at the hearing. Therefore, these are not grounds of appeal that have a reasonable chance of success on appeal.
[11] The Applicant argued further that the General Division decision contained an error as it did not refer to the mathematical formula for what is to be considered substantially gainful occupation that is set out in recent Regulations. The General Division made no error in this regard. The Regulations apply to applications for a Canada Pension Plan disability pension made after May 29, 2014. They do not apply in this case.
[12] In addition, the Applicant contended that the General Division erred as it did not consider any reasonable explanation that the Applicant had for not making efforts to obtain or maintain employment. The decision cited the law with respect to this issue, but did not apply it to the facts in this case. It also did not refer to any evidence regarding any effort made by the Applicant to obtain other work, or to any reason for not doing so. As such, I am not persuaded that the General Division made any error in this regard. This is not a ground of appeal that has a reasonable chance of success on appeal.
[13] The Applicant also presented grounds of appeal that have a reasonable chance of success on appeal. First, she contended that if she would have to be accommodated in order to work, her disability should be considered severe under the Canada Pension Plan. She relied on case law to support this position. While employers have a legal obligation to accommodate the needs of employees, the fact that the Applicant may require significant accommodations may demonstrate that her disabilities were severe. This ground of appeal points to an error of fact that may have been made in a perverse or capricious manner, or without regard to the material before it.
[14] Next, the Applicant argued that the General Division erred in concluding that if her depression had been severe she would have been referred to a psychologist prior to 2010 as depression can be properly treated by a family physician. She stated that she did not seek treatment from a psychologist for financial reasons. The General Division decision did not set out the evidentiary basis for its conclusion that the Applicant would have been referred to a mental health specialist sooner if her depression had been severe. The General Division relied on this conclusion in making its decision. This may also be an error of fact made without regard to the material before it. It is a ground of appeal that has a reasonable chance of success on appeal.
[15] Further, the Applicant submitted that the General Division decision erred as it did not explain why some medical evidence was preferred over other such evidence. Similarly, the General Division did not consider the evidence regarding the Applicant’s psychological health. While it is not necessary for a decision to mention all of the evidence that is presented at a hearing (see Simpson), the Supreme Court of Canada decided, in R. v. Sheppard (2002 SCC 26), that a decision maker must give reasons for findings of fact made on contradictory evidence and upon which the outcome of the case is largely dependent. In this case, there were differing medical opinions regarding the Applicant’s prognosis after her last surgery. The decision did not explain why one medical opinion was preferred over others. This may be an error. Hence, this is a ground of appeal that may have a reasonable chance of success on appeal.
[16] Finally, the Applicant contended that the General Division erred as it did not consider all of her health conditions together when determining whether she suffered from a severe disability under the Canada Pension Plan. It is settled law that the trier of fact must consider all of a claimant’s medical conditions and not just the most significant one. In this case, the General Division decision considered each of the Applicant’s conditions and their treatment. It is not clear, however, whether the General Division considered the cumulative impact that these physical and mental conditions had on the Applicant. This points to an error of mixed law and fact. This ground of appeal may have a reasonable chance of success on appeal.
Conclusion
[17] The Application is granted as the Applicant has presented a ground of appeal that has a reasonable chance of success on appeal.
[18] 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
- (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.
58. (2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.