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Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division dated April 3, 2014. The General Division determined that she was not eligible for disability benefits under the Canada Pension Plan, as it found that her disability was not “severe” at her minimum qualifying period (MQP) of December 31, 2006.
[2] The Applicant submits that the General Division erred in assessing whether her disability is severe, on the grounds that it erred in law and based its decision on erroneous findings of fact made in a perverse and/or capricious manner and/or without regard for the material before it. To succeed on this application, the Applicant must show that she has an arguable case or that the appeal has a reasonable chance of success on one of the alleged grounds of appeal.
Factual background
[3] The Applicant submitted an application for Canada Pension Plan disability benefits in August 2011. The Questionnaire for Canada Pension Plan Disability Benefits form indicates that the Applicant was last employed by an industrial manufacturer in April 2007, when she stopped working due to an injury involving her right shoulder. The Applicant stated that she could no longer work after this date.
[4] The Applicant stated in her Questionnaire that she suffers from chronic right shoulder pain and secondary depression. The evidence also disclosed that the Applicant also developed pain in her neck; back pain radiating down her left leg; and bilateral arm pain. The Applicant described numerous functional limitations and restrictions.
[5] There was extensive medical documentation before the General Division, including expert opinions and records and various diagnostic scans. The Applicant has been diagnosed with a chronic pain syndrome or chronic myofascial pain. The Workplace Safety & Insurance Board was involved in her rehabilitation and efforts at reentry into the workforce. The Applicant participated in a Labour Market Reentry Program.
Submissions
[6] The Applicant is represented by counsel, but she prepared her own submissions. From what I can determine, the Applicant seeks leave on the following grounds, that the General Division:
- Erred in calculating the minimum qualifying period or in applying proration. The Applicant submits that the “critical date to meet the legislative criteria to establish the disability is September 2007” rather than December 2006.
- Erred in refusing to admit updated medical records into the evidence. While the updated medical records addressed the post-MQP timeframe, the Applicant submits that these records were nonetheless relevant to any considerations as to whether her disability is severe and prolonged as defined by the Canada Pension Plan.
- Should have unreservedly accepted the Applicant’s evidence regarding her pain experience and limitations, given that numerous health caregivers had diagnosed her with a chronic pain disability and complex regional syndrome prior to her minimum qualifying period. She submits that the General Division ought to have given greater consideration to her subjective experiences, given the nature of her disabilities. She submits that the General Division erred in requiring that there be objective medical evidence to substantiate the Applicant’s subjective pain complaints.
- Erred in finding that there were inconsistencies in the oral evidence.
- Erred in failing to consider what pain relief medications had been prescribed to her, as she submits that this can be used to assess subjective pain levels.
- Erred in failing to consider the medical records to determine whether any of the treating physicians accepted the pain levels reported or “expressed any doubt by reference to malingering or something similar”, as she submits this can also be used to assess subjective pain levels.
- Erred in equating her ability to attend school with the ability to meet the demands of either full- or part-time employment. The Applicant submits that the school setting allowed her to freely move about, something she would be unable to do in an employment setting. She submits that attendance in school in a protected class environment does not equate to being able to properly function in a real life work setting. In this regard, the Applicant relies upon Villani v. Canada (Attorney General) 2001 FCA 248. In other words, she submits that the General Division failed to follow Villani.
- Erred in its interpretation of the medical opinion of her family physician Dr. George. The Applicant submits that the General Division should have accepted Dr. George’s subsequent opinion, set out in his letter dated May 2, 2014, in which he clarified that the Applicant’s “inability to work at all applied to the time period of 2006-2007”. The Applicant submits that the General Division already acknowledged that it should give deference to Dr. George and assign significant weight to his notes, and
- Erred in law in requiring that the Applicant undertake efforts to work, as the Applicant lacked the requisite capacity. The Applicant notes that, in any event, any efforts she undertook were unsuccessful.
[7] The Respondent has not filed any submissions.
The law
[8] 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.
[9] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) 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.
[10] The Applicant needs to satisfy me that the reasons for appeal fall within any of the grounds of appeal and that at least one of the reasons has a reasonable chance of success, before leave can be granted.
Analysis
a) Did the General Division miscalculate the minimum qualifying period or fail to apply proration?
[11] The minimum qualifying period establishes when an applicant is required to be found disabled for the purposes of assessing entitlement under the Canada Pension Plan. In this case, the General Division wrote that it agreed with the parties that the minimum qualifying period is December 31, 2006. However, the General Division also wrote that as the Applicant contributed to the Canada Pension Plan in 2007, those earnings could be prorated to September 30, 2007, as long as other statutory provisions were met. The General Division stated that if the Applicant was not found to be disabled between January 1, 2007 and September 30, 2007, then it was required to determine whether it was more likely than not that she was disabled on or before December 31, 2006. Hence, it cannot be said that the General Division was not alive to the possibility of proration.
[12] Section 19 of the Canada Pension Plan stipulates that proration is only available upon the occurrence of a triggering event, which in this case would be the onset of disability. The prorated date of September 2007 would have been available to the Applicant, provided that the General Division found the onset of disability to have occurred sometime between January 1, 2007 and September 30, 2007.
[13] The General Division determined that the Applicant had the capacity to work in December 2006. The question properly then is whether the General Division considered whether the Applicant became disabled within the meaning of the Canada Pension Plan sometime between January 1, 2007 and September 30, 2007. In its review of the medical documentation, the General Division found that from December 2006 to September 2007, the Applicant had various restrictions and limitations, but these did not prevent her from being incapable of all work, and presumably, from being incapable regularly of pursuing any substantially gainful occupation. As such, it cannot be said that the General Division failed to apply the correct date in assessing when the Applicant was required to be found disabled. The Applicant has not satisfied me that the appeal has a reasonable chance of success on this ground.
b) Did the General Division err in refusing to admit updated medical records?
[14] The Applicant submits that there were various relevant medical records, which the General Division refused to admit into evidence.
[15] At paragraph 4 of its decision, the General Division stated that there had been a discussion about the inclusion of the documents, but the Applicant’s representative declined to have them considered as part of the hearing file. On this basis, I can see no error which would have arisen if the General Division made no orders in respect of this documentation.
[16] In any event, while the medical records may well have been germane to the issue of whether the Applicant’s disability could be considered prolonged, records current to 2014 would not have necessarily addressed the issue as to whether the Applicant’s disability could be considered severe at her minimum qualifying period or at proration.
[17] The other shortcoming to the submissions regarding the admissibility of these medical records is the fact that the Applicant has not identified the very nature of the records, and how they might have been relevant and material to the claim for disability benefits. For instance, what if the records consisted of handwritten clinical notes? The records may not have been legible and may not have offered any medical opinions. If the records simply consisted of the Applicant’s complaints to her treating health caregivers, those entries in the records would have been of limited utility. Under the rules of evidence, the entries could not be used as proof of fact of the Applicant’s pain. Generally, the entries would have been limited to showing that the Applicant made specific complaints, or that she might have been examined and that testing produced certain results on that date, or that she was given certain recommendations for treatment and investigation.
[18] The Applicant has not persuaded me that she has a reasonable chance of success on this ground, largely because she declined to have the documents considered part of the hearing file at the time. It cannot be said that the General Division erred, when the decision to exclude the documents had ultimately been made by the Applicant.
c) Did the General Division err in failing to consider some of the evidence and in assigning the appropriate weight to the medical opinions?
[19] I will address the Applicant’s submissions in subparagraphs 6(c) to 6(f) and 6(h) together, as the Applicant submits that, in assessing the severity of her disability, the General Division overlooked or failed to assign sufficient weight to some of the evidence, including the Applicant’s own testimony, particularly with respect to her subjective experiences; her pain prescription history; and the expert medical opinions, including her family physician’s opinion of May 2, 2014. The Applicant submits that the General Division also erred when it found inconsistencies in the oral evidence, when she says that there were none to be found.
[20] The Applicant further submits that the General Division erred in law in relying on Warren v. Canada (Attorney General), 2008 FCA 377, and in requiring that she adduce objective evidence to substantiate her complaints of severe pain. The Applicant submits that, by its very nature, pain is necessarily subjective. As there is no means to measure pain levels, it was unrealistic for the General Division to require that she adduce objective evidence.
[21] Even so, the Applicant submits that there are criteria which can be used as indicators of severity, such as the type of prescription medications taken and whether any treating practitioners have accepted reported pain levels. She submits that as medical practitioners have accepted her pain experiences and limitations, so too should the Social Security Tribunal.
[22] The Federal Court of Appeal has previously addressed this submission in other cases that Pension Appeals Boards have failed to consider all of the evidence or have not assigned the appropriate amount of weight to the evidence. In Simpson v. Canada (Attorney General), 2012 FCA 82, the Applicant’s counsel 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 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 . . .
[23] I presume that the General Division considered all of the evidence before it, even if it did not refer to each and every piece of evidence. It is not inappropriate or improper for the General Division to sift through the relevant facts, assess the quality of the evidence, determine what evidence, if any, it might choose to accept or disregard, and to decide on its weight. The General Division is permitted to consider the evidence before it – whether objective or subjective -- and attach whatever weight, if any, it determines appropriate and to then come to a decision based on its interpretation and analysis of the evidence before it. Thus, the General Division was not required to place much, if any, weight on any evidence as to what pain relief medication the Applicant might have been taking, or on each of the medical opinions, notwithstanding how favourable the Applicant might regard them.
[24] In following the principles set out in Simpson, the General Division also was not required to fully accept the Applicant’s testimony, particularly when it determined that there was conflicting evidence and inconsistencies, and found that portions of her testimony did not represent the “best evidence” available. While the General Division found the Applicant to be credible, it did not find her evidence to be reliable, due to the passage of time and, under those circumstances, chose to rely on the documentary evidence when any gaps or inconsistencies arose. From this perspective, I do not see that an arguable case has been borne out.
[25] There may however be another issue at play here. Although the Applicant did not describe the issue as such, did the General Division base its decision on an erroneous finding of fact without regard for the evidence before it? The General Division noted that there was no notation in the family physician’s records that the Applicant could not work “until several years after MQP”. The General Division found that there were no health professionals who indicated that she was incapable of working “until many years after the MQP”. The Applicant submits that these findings are inconsistent with and at complete odds with the medical evidence. The Applicant submits that there is in fact much supporting documentation that she was unable to work in 2006 and 2007. She points to a record dated November 21, 2006 from a walk-in clinic and to the family physician’s records of April to May 2007 which indicates that she could not work at that time.
[26] The medical records on file span several years. While there are some medical records for the timeframe 2006 to 2007, I do not readily see the specific reference in the clinical records of the walk-in clinic or in the family physician’s records from April to May 2007 in the hearing file before the General Division, which purportedly shows that the Applicant was unable to work at that time. There are several hand-written clinical records, but no entries that correspond with the November 21, 2006 or April to May 2007 dates cited by the Applicant. The handwritten records are at pages GT1-55 to GT157, GT1-124 to GT1-125 and GT1-127 to GT1-132 of the hearing file. Many of the handwritten records are largely illegible in any event. It would have been helpful had the Applicant or her counsel provided page reference numbers or reproduced copies of these medical records. While I would not have viewed the records for the purposes of any reassessment of the Applicant’s claim for disability benefits, the records might have been relevant to any consideration as to whether the General Division made any erroneous findings of fact.
[27] The Applicant submits that she testified before the General Division that she was unable to work at any gainful employment or occupation in 2006 to 2007 as a result of her ongoing pain. The family physician also prepared an opinion dated May 2, 2014 advising that the Applicant has been continuously disabled and unfit for any type of gainful employment since 2006. The Applicant submits that I ought to consider Dr. George’s medical report of May 2, 2014, as it clarifies his medical report of August 2011, to the extent that it shows that her disability commenced in 2006.
[28] The fact that the General Division placed significant weight on the notes of Dr. George ought not to be seen as an invitation to collect additional opinion evidence from him, even if it should clarify any earlier opinions he may have provided. The opportunity to seek clarification of any opinions or from any witnesses is at the hearing before the General Division.
[29] Once a hearing has concluded, there is a very limited basis upon which any new or additional information can be raised. An applicant could consider making an application to rescind or amend a decision of the General Division. However, an applicant would need to comply with the requirements set out in section 66 of the DESDA and sections 45 and 46 of the Social Security Tribunal Regulations. Not only are there strict deadlines and requirements that must be met to succeed in an application to rescind or amend, but an applicant would also need to demonstrate that any new facts are material and that they could not have been discovered at the time of the hearing with the exercise of reasonable diligence. Such an application would also need to be made with the appropriate division which rendered the decision that the applicant seeks to rescind or amend.
[30] Otherwise, subsection 58(1) of the DESDA does not permit me to consider any new medical reports or records, unless they address any of the enumerated grounds of appeal. The fact that Dr. George’s medical report of May 2, 2014 may clarify his earlier report is an insufficient basis for me to consider it. However, even if I were to accept that there is a basis for me to consider Dr. George’s medical report of May 2, 2014, it does not render his more recent opinion conclusive. Any opinion would need to be evaluated against the totality of the evidence before the General Division.
[31] If the Applicant is requesting that we re-assess and re-weigh the medical evidence and decide in her favour, I am unable to do this, as I am required to determine whether any of her reasons for appeal fall within any of the grounds of appeal and whether any of them have a reasonable chance of success. Subsection 58(1) of the DESDA does not permit a reassessment of the evidence or a rehearing. The leave application is not an opportunity to re-assess and re-weigh the medical evidence or to re- hear the claim to determine whether the Applicant is disabled as defined by the Canada Pension Plan.
[32] The Applicant submits that the General Division erred in requiring her to produce some objective evidence to substantiate her complaints. While the General Division may have referred to the Warren decision and suggested that it required objective medical evidence, it seems that the General Division in fact was looking for documented references in the medical records for the period 2006 and 2007, to substantiate her complaints of severe pain. The General Division accepted that the Applicant has had longstanding chronic pain and that she faced restrictions, but found that the medical documentation fell short of establishing that her disability was severe at the minimum qualifying period.
[33] The Applicant has not satisfied me that there is a reasonable chance of success under this ground of appeal.
d) Did the General Division err in equating school attendance with capacity regularly of pursuing any substantially gainful occupation?
[34] The Applicant submits that the General Division erred in equating her school attendance with the capacity regularly of pursuing any substantially gainful occupation. The Applicant submits further that the General Division erred in law in failing to apply the “real world” context to her circumstances, where her schooling was concerned. She submits that she was permitted to get up and move about in the school setting, but would not be able to do this in a work setting.
[35] The evidence regarding the Applicant’s schooling is set out at paragraphs 32 to 39 of the decision. The General Division found that the Applicant attended school from late 2007 to at least mid-2008. It noted the Applicant’s testimony, that she had good attendance and did well, but as she experienced increased arm pain from driving to school, discontinued. The General Division also noted that the Applicant’s family physician “did not prevent her from attending school knowing the purpose was to eventually find employment in a more suitable environment”.
[36] In regards to the “real world” context set out in Villani¸ the particular circumstances which seem to have been contemplated by the Federal Court of Appeal relate to an applicant’s own particular circumstances, such as his or her age, education level, language proficiency and past work and life experience. The “real world” context does not relate to a consideration of the physical environment or demands placed on an applicant in a school setting.
[37] In reviewing the Applicant’s overall capacity, it appears that the General Division did not consider the particular physical environment or demands which the Applicant might have encountered in the school setting. It is true that one cannot, as a general proposition, equate schooling with capacity, but conversely, one cannot outright conclude that schooling can never be seen as demonstrating capacity, as it will always depend upon the factual circumstances of each case.
[38] Here, the General Division considered a number of factors in assessing the severity of her disability. The General Division did not view the Applicant’s schooling in isolation or as being the determinative factor in assessing severity.
[39] The Applicant has not satisfied me that there is an arguable case on this point as to whether the General Division equated her attendance at school with capacity or that it erred in failing to apply Villani where her schooling was concerned. It seems that what the Applicant is really requesting is a reassessment as to whether the schooling in her particular case reflects any capacity regularly of pursuing any substantially gainful occupation. Subsection 58(1) of the DESDA does not envision a reassessment.
e) Did the General Division err in its application of Inclima?
[40] In Inclima v. Canada (Attorney General), 2003 FCA 117, the Federal Court of Appeal wrote:
Consequently, an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition.
[41] While the General Division referred to Inclima in its decision, the Applicant submits that the General Division erred in law in requiring that she undertake efforts to work, as she did not have the capacity to do so. She submits that, in any event, her efforts were unsuccessful in this regard.
[42] Had the General Division found that there was no evidence of work capacity, it would have committed an error in law in requiring that she undertake efforts to obtain and maintain employment. At paragraph 80 of the decision, the General Division clearly found that there was some work capacity, even if the Applicant faced restrictions. The General Division wrote:
The medical documentation from several physicians indicate (sic) from December 2006 to September 2007 the Appellant had restrictions but these did not prevent her from being incapable of all work. No physician at that time or earlier indicated the Appellant was not capable of doing any work. Dr. George did not prevent her from attending school knowing the purpose was to eventually find employment in a more suitable environment.
[43] The Applicant has not satisfied me that she has a reasonable chance of success on this ground.
Conclusion
[44] The Application is refused.