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Reasons and decision
Overview
[1] This matter returns to the Appeal Division from the Federal Court of Canada, which allowed the Applicant’s application for judicial review. Zinn J. ordered that the application for leave to appeal the decision of the General Division be re-determined, in keeping with the reasons of the Court.
[2] At the General Division, the Applicant succeeded in establishing his entitlement to a disability pension under the Canada Pension Plan. The General Division had found that the Applicant was disabled as of April 13, 2011, but he maintains that he was disabled 17 months earlier, when he was injured as the result of a workplace accident on November 27, 2009.
[3] The Applicant seeks leave to appeal the General Division’s finding that he was disabled as of April 13, 2011, on several grounds. For this application to succeed, I must be satisfied that the appeal has a reasonable chance of success.
Issue
[4] Does the appeal have a reasonable chance of success?
Submissions
[5] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) sets out the grounds of appeal as being limited to 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.
[6] Before I can consider granting leave, I need to be satisfied that the reasons for appeal fall within the permitted 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.
a) Legal test for onset of disability
[7] The Applicant submits that the General Division applied the wrong legal test when it found the date of onset of his disability to be April 13, 2011. Although the General Division identified the correct legal test for a severe and prolonged disability at paragraph 7 of its decision, the Applicant argues that this is insufficient, as it must actually apply that test. The Applicant argues that instead of determining whether he was incapable regularly of pursuing any substantially gainful occupation, the General Division relied on the factors of “maximum medical recovery” and “permanent disability”. The Applicant argues that the General Division erred in equating a doctor’s opinion about “maximum medical recovery” or “permanent disability” as definitive of the point at which his disability reached the “severe” threshold. He claims that this is irrelevant to the determination of the severity of his disability, as it says nothing about the onset, nature, extent or degree of severity of the underlying medical condition or disability. He claims that, instead, the term “maximum medical recovery” refers only to the point when an injured person’s medical recovery has plateaued or condition has stabilized and no further improvement is expected.
[8] The General Division determined that the Applicant became disabled in April 2011, on the basis of the medical reports and assessments of Drs. Mihic, Matthews and Bringleson. Dr. Mihic prepared opinions dated April 16, 2008, January 28, 2010 and June 8, 2010, while Dr. Bringleson prepared reports dated May 26, 2010 and May 9, 2011. The General Division indicated that it came to this finding that the Applicant had a severe and prolonged disability in April 2011, “particularly in light of the assessment from Dr. Matthews who reported on April 13, 2011, that the [Applicant] had reached maximum medical recovery and was ‘permanently disabled’ ”(GT1-97).
[9] This raises some question as to whether the General Division had indeed determined the Applicant to be severely disabled on the basis that he had reached “maximum medical recovery” and was “permanently disabled”, rather than determining whether he was incapable regularly of pursuing any substantially gainful occupation. I am satisfied that the appeal has a reasonable chance of success on this ground. After leave to appeal is granted, the Appeal Division will determine whether the General Division applied the proper test to make the determination.
(b) Onset of disability
[10] The Applicant submits that 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, in finding that he became disabled on April 13, 2011.
[11] The Applicant argues that the General Division chose the date of April 13, 2011 as the date of onset of disability, as it coincided with the date of Dr. Matthews’ report in which he wrote that the Applicant “is permanently disabled from work”, that there are “permanent disabilities”, that he has developed conditions which cause “further functional disability in all daily functions” and that he has “reached maximum medical recovery”. The Applicant claims that the medical evidence before the General Division consisted of other expert opinions which came to the same findings and conclusion, including the following:
- medical report dated February 12, 2010 of Dr. Ogilvie-Harris, an orthopaedic surgeon (GT1-81 to GT1-89). Dr. Ogilvie-Harris was of the opinion that the Applicant had gone on to develop the features of chronic pain syndrome and that this represented a “permanent and serious impairment of important bodily functions”. The Applicant contends that Dr. Matthews relied on the report of Dr. Ogilvie-Harris in forming his own opinions of February 1, 2011 and April 13, 2011, regarding the severity of the Applicant’s disability.
- medical report dated June 8, 2010 of Dr. Marko Mihic (GT1-52). Dr. Mihic wrote that the Applicant was “suffering severe disorder, physically and emotionally” and that it was his opinion that the Applicant would not be able to return to any kind of a temporary and or permanent job in the foreseeable future.
- medical reports dated February 1, 2011 (GT1-12) and June 2, 2011 (GT3-47) of Dr. Matthews. In the February 1, 2011 report, Dr. Matthews wrote that the Applicant now has permanent and serious impairment of all physical capabilities and that he had attained maximal medical recovery. Dr. Matthews was of the opinion that the Applicant was permanently disabled from work or looking for work and that he would remain disabled permanently. The Applicant notes that Zinn J. found that the language of both the February 1 and April 2011 reports to be as “equally forceful”.
[12] The Applicant argues that, significantly, in his report of June 2, 2011, Dr. Matthews stated that the Applicant has a “permanent disability with a very poor prognosis. All of the above are as of June 16 2010”. Zinn J. noted that the date of June 2010 coincided with the date of Dr. Mihic’s report (although it is unclear how Dr. Matthews chose the specific date of June 16).
[13] The Applicant argues that Dr. Mathews relied on the report of Dr. Ogilvie-Harris in forming his own opinion on February 1, 2011 and April 13, 2011, but while Dr. Matthews referred to the fact that the Applicant had been assessed by him, Dr. Matthews did not indicate in either of his reports of February 1, 2011 or April 13, 2011 that he necessarily relied on the assumptions or findings made by Dr. Ogilvie-Harris.
[14] The Applicant argues that the General Division came to its findings without regard to these earlier medical reports, or to Dr. Matthews’ report of June 2, 2011, which he claims suggest that the Applicant’s disability had been severe sometime prior to April 13, 2011.
[15] The Applicant also contends that if the General Division accepted that the Applicant had a severe disability when he reached maximum medical recovery, that he must have met the definition before then, as plateauing suggests that the Applicant’s condition must have been the same or worse before he attained maximum medical recovery.
[16] In determining the date of onset of disability, the General Division indicated that it primarily relied on the April 2011 report of Dr. Matthews. It did not specifically mention whether it had considered Dr. Matthews’ other two reports, or for that matter, the opinions of Dr. Ogilvie-Harris and Mihic, when it came to determining the date of onset (although paragraph 58 could be interpreted to mean that the General Division also considered the reports of Drs. Mihic’s and Bringleson in this regard). On this basis, it may have 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 and I am therefore satisfied that the appeal has a reasonable chance of success.
[17] To be clear, at the leave to appeal juncture, I am not assessing whether the reports of Drs. Ogilvie-Harris, Mihic and Matthews establish that the Applicant was severely disabled as of November 27, 2009, or sometime prior to April 13, 2011. For the purposes of this leave application, I need not determine the date of onset, or whether any of the evidence before the General Division established an earlier date of onset than April 13, 2011. At this time, I simply need to determine if the Applicant raises a reasonable chance of success in relation to the one of the grounds of subsection 58(1) of the DESDA.
(c) Breach of natural justice
[18] The Applicant submits that the General Division breached a principle of natural justice in that it failed to provide clear reasons for its decision. In particular, the Applicant argues that the General Division failed to articulate why it accepted the April 2011 opinion of Dr. Matthews (at GT1-97), when there were other medical opinions which he claims also suggest that he was disabled before April 2011. As the Applicant points out, Zinn J. concluded that the two issues – whether the General Division had applied the correct test and whether it had given adequate reasons – raised by him were:
intertwined in that the General Division’s decision that his disability commenced on April 13, 2011, may be said to be based on an improper test because the General Division fails to explain why, on the evidence before it, it picked that date and not an earlier one.
[19] It does not appear that the General Division addressed the other opinions which suggest that the Applicant may have been disabled before April 2011. On this basis, I am satisfied that the appeal has a reasonable chance of success.
Conclusion
[20] The application for leave to appeal is granted.
[21] This decision granting leave does not in any way prejudge the result of the appeal on the merits of the case.