Canada Pension Plan (CPP) disability

Reasons and decision

Decision

Leave to appeal is refused.

Introduction

[1] The Applicant seeks leave to appeal the decision of the General Division (GD) of the Social Security Tribunal dated April 4, 2016. The GD had earlier conducted an in-person hearing and determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan (CPP), as it found that her disability was not “severe” prior to the minimum qualifying period (MQP).

[2] On May 11, 2016, within the specified time limitation, the Applicant submitted to the Appeal Division (AD) an application requesting leave to appeal detailing alleged grounds for appeal. For this application to succeed, I must be satisfied that the appeal has a reasonable chance of success.

The law

[3] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an appeal to the AD may only be brought if leave to appeal is granted and the AD must either grant or refuse leave to appeal.

[4] Subsection 58(2) of the DESDA provides that leave to appeal is refused if the AD is satisfied that the appeal has no reasonable chance of success.

[5] According to subsection 58(1) of the DESDA the only grounds of appeal are the following:

1. (a) The GD failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The GD erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The GD 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] Some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada.^{Footnote 1} The Federal Court of Appeal has determined that an arguable case at law is akin to determining whether legally an appeal has a reasonable chance of success: Fancy v. Canada.^{Footnote 2}

[7] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first hurdle for the Applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the Applicant does not have to prove the case.

Issue

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

Submissions

Erroneous Findings of Fact

[9] In a letter accompanying the application requesting leave to appeal, the Applicant’s solicitor submitted that the GD based its decision on the following erroneous findings of fact:

1. In paragraph 13, it misrepresented the Applicant’s testimony in finding that she worked her regular job for two years until April 2013;
2. In paragraph 14, it misrepresented the Applicant’s testimony in finding that she did not attempt to seek modified work or get retrained in another job;
3. In paragraph 30, it misrepresented the Applicant’s testimony in finding that she was able to work on mixed modified and regular duties for two years;
4. In paragraph 31, it incorrectly found that there was no medical evidence to show deterioration in her condition after she stopped working in April 2013.

Errors of Law

[10] The Applicant also submits that the GD erred in law as follows:

1. It failed to consider the totality of evidence, including information suggesting her impairments would prevent her from engaging in sedentary employment, given her age, education and work experience.
2. It failed to apply Villani v. Canada^{Footnote 3} and related case law, which demands that the severity of an applicant’s impairments be assessed in a real world context, giving consideration to her personal characteristics and the commercial imperatives of the labour market.

Analysis

Errors of Fact

(a) Misrepresentation of Applicant’s Testimony

[11] The Applicant alleges that the GD based its decision on significant misrepresentations of her testimony at the hearing. In paragraphs 13 and 14, the GD wrote that she testified to working at her regular job until April 2013 and did not attempt to seek modified work or retraining in another job. In paragraph 30, the GD found that the Applicant, based on her testimony, was able to work on mixed modified and regular duties for two years, leading to the conclusion that she had a capacity for more sedentary work.

[12] The Applicant suggests that the GD oversimplified her testimony, leading it to draw an incorrect inference that she was capable of light work. In fact, she complied with her return to work plan to her best of abilities, repeatedly returning to modified duties until April 2013, even though the work that was demanded of her continued to involve repetitive motion. The Applicant drew attention to the February 13, 2013 letter of C. P., her employer’s human resources manager, who wrote: “Work at Benlan is repetitive, even modified duties, so we are unable to provide you with appropriate modified duties at this time.”

[13] In essence, the Applicant is arguing that the GD ignored her evidence that she was willing to work at modified duties, although none was made available to her. I do not agree. A plain reading of the decision suggests that, contrary to the Applicant’s allegations, the GD was well aware of her testimony that her employer in effect forced her to return to her regular duties. In its entirety, paragraph 13 reads:

The Appellant testified that after four months of modified duties her employer demanded that she go back to her regular duties. The Appellant testified that she worked her regular job for two years until April 2013. She testified that she took time off when needed due to pain and she stopped working when she could no longer handle the pain.

[14] In paragraph 25, the GD took further note of the difficulties the Applicant experienced in her last months at Benlan:

The Appellant stated that she had difficulty with regular work activities such as standing, turning, kneeling and sitting for long periods of time. The Appellant testified that when she resumed her regular work activities she would need to take breaks or work reduced hours when she experienced pain.

[15] These passages capture the Applicant’s claim that she persevered at her job through increasing pain, but they also suggest that she never mounted a sustained attempt to do lighter work. The GD was persuaded she could no longer manage the essential tasks of her regular job but found in paragraph 27 that she had residual ability to perform work within her restrictions. The Applicant points to a letter from her employer that made clear it could not offer modified duties that excluded repetitive motion. However, while non-physical work may have been unavailable at Benlan, that does not mean it was unavailable from other potential employers, and the GD was within its jurisdiction to infer that the Applicant had the capacity for lighter, more sedentary work.

[16] Finally, while the Benlan letter confirms the Applicant’s testimony that her former employer could not offer her modified duties appropriate to her condition, I note that it was apparently not before the GD at the time of hearing. As a result, the GD cannot be faulted for disregarding an item of evidence that was unavailable to it.

(b) Deterioration After April 2013

[17] In paragraph 31, the GD wrote:

There was no medical evidence presented that showed a deterioration in the Appellant’s condition when stopped working in April 2013 to her MQP. Dr. Raczynska’s opinion in May 2013 that she was unable to work does not indicate the Appellant would never be able to return to some form of gainful employment. Although in March 2014 Dr. Raczynska opined that the Appellant would never be able to return to any gainful employment this was after the Appellant’s MQP and was not supported by objective findings.

[18] The Applicant alleges that the GD erred in finding that there was no medical evidence to show deterioration in her condition after she stopped working in April 2013. In fact, Dr. Raczynska concluded that that the Applicant was unable to work in May 2013 and reiterated this opinion in March 2014. The Applicant submits that her condition did not deteriorate from April 2013 until March 2014. “The fact that Dr. Raczynska did not state ‘never’ in her first opinion of May 2013 is in fact an arbitrary indication. The Applicant if even capable of working would not have been able to do so on a substantial or gainful basis.”

[19] The Applicant objects to the suggestion that Dr. Raczynska in some way qualified her prognosis, but having reviewed the wording of the family physician’s May 2013 medical report, I see nothing to indicate the GD relayed her remarks unfairly. Dr. Raczynska wrote:

Prognosis: Fair. She has pain, now lasting 3 years and is quite disabled. There is no light duty job available that would accommodate her restrictions. Her condition is chronic and unlikely to resolve completely.

[20] As noted by the GD, Dr. Raczynska did not categorically rule out future work, and the Applicant’s outlook was described as “fair.” The timing and context of Dr. Raczynska’s comments suggest that the non-availability of light work related only to the Applicant’s most recent place of employment. The GD suggested that Dr. Raczynska’s medical report of March 14, 2014 (referred in the decision by its date-stamp of April 7, 2014) represented a shift that was unsupported by evidence that the Applicant’s condition had undergone deterioration in the 10- month interval, and I see no reason to disturb this finding. In its characterization of Dr. Raczynska’s reports, the GD was acting within its jurisdiction to weigh the evidence, determining what facts, if any, it chose to accept or disregard, before ultimately coming to a decision based on its interpretation and analysis of the material before it.

[21] I see no arguable case on this ground.

Errors of Law

(a) Totality of Evidence

[22] The Applicant alleges that the GD failed to consider evidence suggesting her medical conditions, in combination with her background, rendered her unable to perform sedentary work. The Applicant pointed to various items of evidence, referenced above, that she submitted the GD ignored or distorted in arriving at its conclusion.

[23] It is settled law that an administrative tribunal charged with finding fact is presumed to have considered all of the evidence before it and need not discuss each and every element of a party’s submissions, however immaterial.^{Footnote 4} That said, I have reviewed the GD’s decision and found no indication that it ignored, or gave inadequate consideration to, any of the Applicant’s major complaints.

[24] In her original application for CPP disability benefits, the Applicant claimed that she was disabled from employment, largely due to chronic back pain. The GD’s decision contains a summary of the testimony and available medical evidence, including reports that documented investigations of her condition and the treatments she received for it. The decision closes with an analysis that discusses the evidence in the context of the Applicant’s personal characteristics before concluding that her impairments did not preclude her from all forms of work at the time of her MQP.

[25] I see no arguable case on this ground.

(b) Inadequate Consideration of Villani

[26] The Applicant alleges the GD erred in law by failing to consider the severity of her disabling conditions in a “real world” context in accordance with the Federal Court of Appeal’s ruling in Villani.

[27] In its decision, the GD noted the Applicant’s background and personal characteristics at paragraphs 9, 10 and 20(d). While the GD did not explicitly cite Villani, it is clear from paragraph 33 that the GD understood and applied the correct standard:

The Tribunal also considered the Appellant’s personal circumstances. The Appellant was 57 years old on her MQP date with many years of Canadian work experience before she stopped working. Despite the Appellant’s limited education and work experience the Appellant still had an obligation to attempt retraining or other employment. The Tribunal has not been presented with any evidence that the Appellant has done so, although she retains the capacity for lighter, more sedentary work.

[28] The thrust of the Applicant’s submission on this ground is essentially a request to reassess the evidence as it pertains to the Applicant’s personal characteristics. The Applicant referred to fragments from a key passage in Villani, which I will quote in full:

…as long as the decision-maker applies the correct legal test for severity—that is, applies the ordinary meaning of every word in the statutory definition of severity in subparagraph 42(2)(a)(i) he or she will be in a position to judge on the facts whether, in practical terms, an applicant is incapable regularly of pursuing any substantially gainful occupation. The assessment of the applicant’s circumstances is a question of judgment with which this Court will be reluctant to interfere.

[29] I would not overturn the assessment undertaken by the GD, where it has applied the correct legal test and taken the Applicant’s personal circumstances into account. As it has done so here, I see no arguable case on this ground.

Additional Information

[30] Finally, I note that the Applicant has submitted to the AD additional documents that were not made available to the GD at the time of the hearing on December 16, 2015. An appeal to the AD is not ordinarily an occasion on which new evidence can be considered, given the constraints of subsection 58(1) of the DESDA, which do not give the AD any authority to make a decision based on the merits of the case.

[31] Once a hearing before the GD 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 the GD to rescind or amend its decision, but he or she 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.

Conclusion

[32] The application for leave is refused.