Canada Pension Plan (CPP) disability

Reasons and decision

Introduction

[1] The Applicant seeks leave to appeal the decision of the General Division dated December 4, 2015. The General Division determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan, as it found that her disability was not “severe” by the end of her minimum qualifying period, on December 31, 2008. The Applicant filed an application requesting leave to appeal on February 12, 2016. She can only succeed on this application if I am satisfied that the appeal has a reasonable chance of success.

Issue

[2] Does the appeal have a reasonable chance of success?

Submissions

[3] The Applicant advises that there have been changes in her condition. She argues that, together with the worsening pain and the effects from medication, she has been rendered unable to work. She notes that a physician with the Nova Scotia Health Authority Northern Shared Chronic Pain Services has documented this in an opinion dated July 23, 2015 (GD7-1 to GD7-2). Dr. White wrote:

There is no question that [the Applicant] suffers from recurrent and persistent trigeminal neuralgia causing chronic neuropathic pain resulting in marked decreased in function in ability to work (sic).

. . .

This of course would not provide gainful employment and surely would not result in a refusal of (Canada Pension Plan) disability.

[4] The General Division did not refer to the report in its decision.

[5] The Applicant advises that, at times, she is unable to eat or speak. She also has difficulty getting dressed. She has fallen numerous times.

[6] On March 7, 2016, the Social Security Tribunal (SST) wrote to the Applicant, indicating that it required additional information. It provided her with the opportunity to respond by April 7, 2016.

[7] The SST asked the Applicant to explain why she was appealing the decision of the General Division. In particular, the SST asked her to identify any errors which she believed that the General Division had made in its decision. Specifically, she was asked to address subsection 58(1) of the Department of Employment and Social Development Act (DESDA). A decision may be overturned on appeal under the subsection if the General Division:

1. (a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) 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.

[8] The Applicant did not respond to the SST’s request for further submissions.

[9] The SST provided a copy of the leave materials to the Respondent. However, the Respondent did not file any written submissions.

Analysis

[10] Subsection 58(1) of the DESDA provides limited grounds of appeal, as set out above. Before I can consider granting leave to appeal, I need to be satisfied that the reasons for appeal fall within the grounds of appeal and that the appeal has a reasonable chance of success. The Federal Court of Canada endorsed this approach in Tracey v. Canada (Attorney General), 2015 FC 1300.

[11] Although the General Division did not refer to the July 23, 2015 report, I note that the first time that Dr. White saw the Applicant was not until April 30, 2015, well after the end of her minimum qualifying period on December 31, 2008. Dr. White did not offer an opinion as to the extent of the Applicant’s disability by the end of her minimum qualifying period, nor did he address any of the medical evidence pertaining to the Applicant’s disability for this timeframe. Dr. White’s opinion was therefore of little or no probative value in this regard. As a result, I find that the General Division did not err in failing to refer to Dr. White’s opinion in its decision.

[12] The Applicant has not identified any grounds of appeal under subsection 58(1) of the DESDA. Essentially she is seeking a reassessment. As the Federal Court held in Tracey, it is not the role of the Appeal Division to reassess the evidence or reweigh the factors considered by the General Division when determining whether leave should be granted or denied. I am not satisfied that there is a reasonable chance that the Applicant will succeed in demonstrating that a reassessment is appropriate.

Conclusion

[13] The application for leave to appeal is dismissed.