Canada Pension Plan (CPP) disability

Reasons and decision

Introduction

[1] The Applicant seeks leave to appeal the decision of the General Division dated November 9, 2015, which 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, 2012. The Applicant filed an application requesting leave to appeal on February 2, 2016, invoking several grounds of appeal.

Issues

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

Analysis

[3] Subsection 58(1) of the DESDA sets out the grounds of appeal as being limited to the following:

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

[4] Before granting leave, I need to be satisfied that the reasons for appeal fall within the enumerated grounds of appeal under subsection 58(1) of the DESDA and that the appeal has a reasonable chance of success. The Federal Court endorsed this approach in Tracey v. Canada (Attorney General), 2015 FC 1300.

i. Erroneous findings of fact

Paragraphs 35, 36 and 37

[5] The Applicant argues that the General Division member based its findings on erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before him.

[6] The Applicant argues that the member ultimately contradicted himself in finding that she was not severely disabled, despite his evidentiary findings at paragraphs 35, 36 and 37. In particular, the Applicant highlights the following sentences from each of these paragraphs:

[35] . . . Once she suffered the workplace injury she immediately took steps to deal with the pain and attempted to have the issue corrected so that she could return to a normal work and life health however that evidence is also clear that this has not happened.

[36] . . . The medical professionals who have dealt with the Appellant appear to find that she is in constant pain however they have been unable to do anything more than medicate her in order to limit the pain. The Tribunal notes that the Appellant has attended a pain management clinic for over two years and while the techniques acquired in the clinic along with the use of various steroid injections have reduced her pain the Tribunal notes that the Appellant testified that her pain levels went from 11/10 to 5 to 6/10. A decline however not one that has allowed her to regain her pre-injury status.

[37] . . . The Tribunal notes that while these nerve blocks continued the Appellant did not experience the pain relief that would allow her to manage on a normal basis.

[7] However, paragraphs 35 to 37 form only part of the General Division’s analyses. The General Division conducted a more detailed analysis beyond these paragraphs. For instance, the General Division also determined that, although the Applicant complained of irritable bowel syndrome, there was no evidence that this existed prior to the end of the minimum qualifying period, and therefore had no bearing on her capacity regularly of pursuing any substantially gainful occupation. The General Division also found that the Applicant did not have a severe mental health disease, largely because she was not seeking any medical help to deal with it and because she did not indicate that she was depressed.

[8] The General Division acknowledged that the Applicant suffered chronic back pain issues since her workplace injury, despite undergoing various treatment modalities and attending a pain management clinic for over two years. However, the General Division also determined that chronic pain alone is insufficient to establish that an applicant is incapable regularly of pursuing any substantially gainful occupation. The General Division found that the Applicant had returned to her employment. She performed only clerical duties and then resumed her usual duties at a modified pace. After three months, the Applicant ceased working, as her usual duties were of a more physical nature and beyond her capacity. The General Division found that the Applicant had been able to work at clerical duties. At paragraph 40, the General Division wrote that there was no indication from the evidence or from the Applicant’s testimony that she was unable to continue with her clerical work.

[9] Given that the General Division conducted a more comprehensive analysis and considered several factors in determining whether the Applicant could be found disabled, I am not satisfied that there were any contradictions in connection with paragraphs 35, 36 and 37 and its ultimate findings, and therefore am not satisfied that the appeal has a reasonable chance of success.

Paragraph 40

[10] The Applicant argues that the General Division made an error of fact in a perverse and capricious manner without regard to the material before him when he stated at paragraph 40:

[40] The Appellant was able to successfully return to work and work at clerical duties. It was only after her time doing clerical duties that she returned to the ward and began the physical part of her job when she determined that she was no longer able to continue work. There was no indication from the evidence or from the Appellant’s testimony that she was unable to continue on with her clerical work role.

[11] The Applicant claims that there were several medical documents, as well as the Applicant’s own oral testimony, which describe her difficulties performing clerical work. The Applicant listed the following:

1. Assessment - Final Report from Grand River Hospital dated September 24, 2009 which notes that the Applicant was diagnosed with thoracic spondylosis (most pronounced at the T9-T10 level and the T-10-Tll level), thoracic strain, and Chronic Pain Syndrome. Precautions would include to limit lifting, pushing, pulling, and prolonged maintenance of status positions such as sitting, stooping or standing, trunk twisting, and bending. Some of these may be permanent. Other issues identified include concerns the Applicant had about her workstation. She found that the ergonomic set up was poor, and she was having difficulties carrying out her duties (GD4- 289).
2. Emergency Physician Record from Guelph General Hospital dated September 30, 2009, it notes that Ms. N. M. presents with persistent, mid-thoracic back pain that has increased over the past few days. She recently had an MRI and was referred to a neurosurgeon. She has been on modified duties at work and was taking Tramacet, but with no relief. She was prescribed Oxycodone for her pain and was discharged without witness, and
3. Her testimony at Part I [at 14:26] of the audio recording. She testified that when she performed modified clerical work, she experienced a constant, gnawing pain in her thoracic spine. Despite taking Percocet and Tramadol, her symptoms did not resolve. She also took other medications. She responded that side effects from medications included memory loss, feeling unable to function, being unable to remain focused, vomiting and feeling nauseous and sleep deprived.

[12] Although the Applicant clearly experienced pain while performing modified work of a clerical nature and required pain relief medications, the documentary opinion evidence cited by the Applicant fell short of explicitly stating that she could not continue in this role, nor did it recommend that she stop altogether.

[13] For instance, the Grand River Hospital report indicates that some of the return- to-work restrictions “may be permanent and some may very well resolve over a period of 14 to 16 weeks”. The assessors identified other issues, which revolved around concerns the Applicant had about her workstation. She noted that the ergonomic set-up was poor and that she was having difficulties carrying out her duties. The assessors concluded that “findings from functional testing in the Functional Restoration Program Intake and or Discharge Reports may assist in adapting the workstation to allow improved tolerances to performing computer work”. The assessment however does not recommend nor suggest that she stop performing clerical duties.

[14] The Guelph General Hospital Emergency Physician Record is not particularly helpful as it is largely illegible and says nothing about her capacity for modified duties (GD7-20).

[15] The Applicant testified before the General Division that she performed clerical duties for approximately six months. Her symptoms remained unchanged. She “dealt with it” and took medications throughout the time she was at work. She described returning home “crying in pain”. She testified that she could not get any sleep because she could not lie down long enough to rest. She testified that her pain relief medication was changed – for instance, she had increasing dosages of Oxycodone slow release - to prepare her for work. She described experiencing various side-effects. Despite this testimony, the Applicant at no time stated that she could not continue.

[16] I am not satisfied that the appeal has a reasonable chance of success on this ground.

Paragraph 41

[17] The Applicant argues that the General Division made an error of fact in a perverse and capricious manner without regard to the material before him when he stated at paragraph 41:

[41] The Tribunal noted a medical report from the Appellant's family doctor that indicated that her depression was stable. The Tribunal found that the Appellant was not seeking medical help to deal with her depression and the Appellant did not indicate that she was depressed during her testimony. Given this lack of medical evidence the Tribunal does not find, on the balance of probabilities, that the Appellant has a mental health disease that is severe as the term is defined in the CPP.

[18] The Applicant claims that there was evidence that she relied on anti-depressant medication to treat her depression and that she had also been referred to a psychologist. She claims that she was being followed by her family physician to help with her depression, so the member erred in suggesting that she was not seeking any medical treatment.

[19] In fact, the member relied on the family physician’s CPP Medical Report dated April 5, 2013 (GD4-56 to GD4-59). The report indicates that the Applicant was taking several medications, including anti-depressants, so the member had to have been aware that the Applicant was taking them. There was no specific indication in the report that the Applicant was awaiting any further consultations at that time, other than with a neurologist in April 2013 (GD4-58). The Applicant does not dispute this. The member was not suggesting that she had not been seen by or had not been referred to a psychologist. It is implicit from the member’s decision, against the backdrop of the family physician’s CPP Medical Report, that he was merely stating that, at that time, the Applicant was not actively seeking medical help, other than from her own family physician, and that had her mental health issues been of a severe nature, she would have sought treatment from other than her own family physician. The member accepted that the Applicant has depression, but found that there was insufficient evidence to support a finding that it was severe or on before the end of the minimum qualifying period.

[20] I am not satisfied that the appeal has a reasonable chance of success on this ground.

ii. Error of law

Totality of evidence

[21] The Applicant submits that the General Division member failed to consider all of her conditions, particularly the impact of her severe chronic back pain, headaches, depression, irritable bowel syndrome, and the side effects of her medication, on her ability to sustain regular substantially gainful employment.

[22] The Applicant notes that, at paragraph 37, the General Division member acknowledged that she has chronic back pain, depression and irritable bowel syndrome. The Applicant argues however that the General Division member failed to acknowledge or consider the Applicant’s severe headaches and their impact on her real world employability.

[23] The Applicant’s counsel did not direct me to any medical evidence regarding the Applicant’s headaches. In my own review, I note that neither the questionnaire accompanying the Applicant’s application for a disability pension, dated March 7, 2013 (GD4-28 to GD4-34) nor the family physician’s CPP Medical Report dated April 8, 2013 (GD4-56 to GD4-59), mention any headaches, although the family physician suggested that the Applicant might have post-concussion syndrome.

[24] However, medical notes dated January 26, 2012 indicate that the Applicant fell and struck her head. The Applicant reported that she was unconscious and that she still had headaches (GD4-314/357). She was seen again on February 2, 2012, when she reported persistent headaches. She was advised to rest as otherwise symptoms were unlikely to resolve (GD3-116; GD4-341/358).

[25] A physiotherapist prepared an assessment report dated February 3, 2012 (GD3- 122 to GD3-126; GD4-220 to GD4-223). The physiotherapist indicated that the Applicant was to follow up with her family doctor biweekly to monitor her headaches.

[26] The Applicant was referred to and assessed by a psychologist in February 2012, for rehabilitation purposes. She reported to him that she had fallen in January, “leading to a one-half period of unconsciousness” and that she continues to feel dizzy and experience headaches (GD4-216). The psychologist was of the opinion that “aside from some headache [sic] there appears to be no long lasting cognitive complaints related to this incident” (GD4-218).

[27] The Applicant continued to see her family physician and on March 8, 2012 reported ongoing headaches “even on serious pain killers”, though she had “occasional days without” (GD4-342/359). On April 9, 2012, she reported she had had a headache that went away (GD4-346/363). Later that same month, the family physician referred her to a neurologist, to determine if there might be a neurologic basis for the Applicant’s falls. On April 19, 2012, the family physician advised the Applicant to take Tylenol regular strength as needed for her headaches (GD4-349).

[28] In an interim progress report dated August 8, 2012, prepared by the Physiotherapy Health Institute, the Applicant was noted to continue to report intermittent neck pain and suboccipital headaches, amongst other things (GD3-133; GD4-248).

[29] On August 16, 2012, the family physician wrote, “concussion and infections interrupted her psychol care – I said that this has resolved” (GD4-383). It appears that the family physician was of the opinion that the post-concussion symptoms had resolved.

[30] On January 14, 2013, the Applicant reported that she had taken a Percocet for a headache, although it was not intended for that purpose (GD4-390).

[31] The family physician also referred the Applicant to a neurologist in regards to the concussion. The neurologist prepared a consultation report dated January 16, 2013 (GD3-152 to GD3-153; GD4-394 to GD4-395). He wrote:

She now has numerous symptoms accompanying headaches. Headaches are described as similar to prior but much increased in frequency, occurring two times per week, described as a pressure and tight band around the global head, with pulsing pain on both sides, with nausea, occasional vomiting, photophobia, and worse with activity. Headaches are accompanied by dizziness which can be spinning, lasting up to 30 or 60 minutes, and are triggered by rushing around.

[32] The neurologist was of the opinion that the Applicant would continue on Amitriptyline as he considered it as the best treatment for post-concussion syndrome (GD4-395).

[33] The Applicant struck her head again on February 15, 2013. On February 19, 2013, the Applicant presented at the Grand River Hospital with headaches (GD4- 255/GD7-33). She had a CT scan of her head done.

[34] The Applicant was seen again by the neurologist in April 2013 for follow-up for several neurological issues. The Applicant reported that she had some benefit with Amitriptyline 40 mg as it reduced her headaches. The neurologist however primarily reported on her thoracic pain (GD3-164 to GD3-165; GD4-411 to GD4-412).

[35] In updated submissions filed on July 24, 2015, the Applicant referred to additional records. The family physician’s clinical records dated December 16, 2013, indicate that the Applicant had reported that she had had a headache “all week” since she had injured her shoulder (apparently in early November 2013) (GD7-103).

[36] The Applicant’s counsel also referred to a clinical record of Cambridge Memorial Hospital Pain Clinic record dated December 18, 2013 which indicates that the Applicant stated that she had had headaches for the past two weeks since removing sling off her left arm (GD7-105).

[37] The Applicant was seen again by the neurologist on December 23, 2013 at Grand River Hospital, regarding possible left cervical radiculopathy and shoulder impingement. The Applicant’s history included longstanding neck soreness and tightness which could travel into the shoulder or trigger headaches. (GD7-107).

[38] An Emergency Record from Grand River Hospital dated October 17, 2014, indicates that the Applicant complained of a headache with nausea for the past 1.5 weeks, despite taking Tylenol. She also complained of vertigo for the past two weeks and it was noted that she had had a concussion a year ago (GD7-161).

[39] There was some suggestion by the family physician that the post-concussion syndrome, including headaches, had resolved by mid-August 2012 (although the Applicant might have continued to experience the occasional headache thereafter). There were no additional reported headaches again until January 2013, after the minimum qualifying period had passed. However, the Applicant clearly argued in her written submission with the General Division that she suffered from her headaches on or before the end of her minimum qualifying period. The Applicant referred to some of the evidence regarding the headaches, including at paragraphs 39, 50 and 55 (GD3). At paragraph 89, her counsel concluded by writing:

It is therefore submitted that at the time of [the Applicant’s] MQP of December 2012, and continuously thereafter, she had been suffering from chronic back pain, depression, irritable bowel syndrome and numerous somatic issues, including knee pain, nausea, headaches and dizziness.

[40] The General Division mentioned post-concussion syndrome, but did not specifically refer to the Applicant’s headaches. Given the evidence and the nature of the submissions before the General Division, there is an arguable case that the General Division should have determined whether the evidence regarding the Applicant’s headaches had any probative value, and if so, whether it should have then considered the Applicant’s history of headaches, and determined how the headaches may have impacted the severity of her disability. I am satisfied that the appeal has a reasonable chance of success on the ground that the General Division may have failed to consider the totality of the evidence before it.

Conclusion

[41] The application for leave to appeal is allowed.

[42] This decision granting leave to appeal does not, in any way, prejudge the result of the appeal on the merits of the case.