Canada Pension Plan (CPP) disability

Reasons and decision

Decision

[1] Leave to appeal is refused.

Introduction

[2] The Applicant seeks leave to appeal the decision of the General Division (GD) of the Social Security Tribunal (SST) dated March 31, 2016. The GD had earlier conducted a hearing by videoconference 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), which ended December 31, 2011.

[3] On June 20, 2016, within the specified time limitation, the Applicant filed an application requesting leave to appeal, advancing numerous grounds of appeal. For this application to succeed, I must be satisfied that the appeal has a reasonable chance of success.

The law

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

[5] Subsection 58(1) of the DESDA sets out that 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] 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.”

[7] 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}

[8] I need to be satisfied that the reasons for appeal fall within any of the grounds of appeal and that the appeal has a reasonable chance of success, before leave can be granted.

Issue

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

Submissions

[10] The Applicant submitted a six-page letter with her application for leave, much of it concerned with describing the disabling effects of her medical conditions. She also enclosed medical reports, a number of which were already presented to the GD, although a few were dated after the hearing. Where possible, I have identified specific allegations of error and categorized them under the following headings:

Natural Justice

[11] The Applicant submits that the GD failed to observe a principle of natural justice as follows:

1. The GD predetermined its decision to deny her CPP disability benefits and ignored significant medical reports that indicated her condition was severe.
2. It was unfair that her impairments were assessed by a legal representative of Service Canada, rather than by a medically trained professional.

Factual Errors

[12] The Applicant submits that the GD based its decision on the following erroneous findings of fact made in a perverse and capricious manner or without regard for the material before it:

1. In paragraph 8(d) of its decision, the GD noted that the Applicant had worked in healthcare for 38 years and in a legal office for 1½ years. In fact, she worked on and off in health care in different roles from 1972 to 2008 (food services while going to college and when her children were younger) for 36 years in total.
2. In paragraph 8(e), the GD wrote that, as per the CPP Questionnaire, the Applicant was last self-employed as a property manager and also did contract work between 2006 and 2013. In fact, she erred in her original application in describing herself as “self-employed,” a term that her accountant has advised her is not fitting for mere administration of an investment property. She has a full time caretaker/manager overseeing the rental property on a day-to-day basis.
3. In paragraph 8(g), the GD wrote that the Applicant’s low back pain originated in a 1998 but she did not report or file a claim for it. In fact, a Worker’s Compensation claim was made in March 1998 through Dr. Seto at the Westglen Medical Clinic.
4. In paragraphs 8(k) and 10(c), the GD listed the Applicant’s medications but omitted her use of Tylenol #3, four times per day.
5. In paragraph 10(a), the GD noted that Dr. Giantomaso found no signs of any rheumatoid disorder, but her family has never tested positive for rheumatoid arthritis, even though her 73-year-old mother suffers from this condition.
6. In paragraph 12, the GD wrote that the Applicant communicated well in the oral hearing without difficulties in recalling details. In fact, she was alert only because she held back on her medications to prepare for the hearing and was in a lot of pain. It took her three or four days to recover after the hearing, as she found it taxing to sit in place so long.
7. In paragraph 20, the GD wrote that her carpal tunnel syndrome (CTS) was managed through surgery. In fact, the December 2015 surgery did not fix her condition, and she remains unable to grasp objects properly.

Error of Law

[13] The Applicant submits that the GD erred in law by misapplying the prolonged criterion. The GD denied her claim based on her abilities as of December 31, 2011, yet her medical records showed a progression in her condition after that date. She has followed the advice of her family physician and radiologist to the best of her ability. Had she continued to work against the advice of her doctors, she would have been judged for it, yet after following orders and ceasing employment, she was told by the GD that she should have forced herself to work.

Analysis

Natural Justice

Predetermined Outcome

[14] The Applicant alleges the GD was so bent on denying her CPP disability benefits, that it ignored selected medical reports. I see no reasonable chance of success on this ground. While it is true, as noted by the Applicant, that the GD did not refer to the report of Dr. Nesbitt dated January 21, 2016 or the spinal MRI of January 31, 2016, 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.^{Footnote 3} That said, I have reviewed the GD’s decision and found no indication that it ignored, or gave inadequate consideration to, any significant component of the Applicant’s evidence or submissions.

[15] The GD’s decision contains a detailed overview of the medical evidence, including what appear to be comprehensive summaries of a number of the reports listed in the Applicant’s submissions. The decision closes with an analysis that suggests the GD meaningfully assessed the evidence and had defensible reasons supporting its conclusion that the Applicant had residual capacity as of the December 31, 2011 MQP. In refusing the Applicant’s claim, the GD cited mild objective findings in the imaging of her back and noted that her medications appeared to be managed through treatment.

Qualifications of Adjudicator

[16] The Applicant suggests that her case should have been heard by a GD member who had medical training, but I see no arguable case on this ground. There is nothing in the SST’s enabling legislation that requires specific qualifications to adjudicate CPP disability appeals, which, it should be noted, involve legal and occupational, as well as medical, issues. The Applicant should also be aware that the members of the SST—both the GD and AD—are not affiliated with Service Canada and are charged with assessing claims for federal government benefits objectively and independently.

Factual Errors

Length of Employment History

[17] The Applicant objects to the GD’s finding that the Applicant had worked in healthcare for 38 years and insists that she actually worked on and off in a variety of roles for 36 years. In my view, if this is an error, it is not a material one and I see no indication that the GD based its decision on the number of years the Applicant spent in the workforce.

Self-Employment

[18] The Applicant claims that the GD mischaracterized her as a “self-employed” property manager, but she acknowledges that she herself made a mistake in using that term in her application for CPP disability benefits. It was open to her to correct the record and clarify the nature of this activity to the GD and, having listening to the relevant segment of the recording of the hearing, I note that she did just that. The GD documented this clarification in paragraph 9(d) of its decision and I see no indication that it failed to take in to account.

[19] I see no reasonable chance of success on this ground.

Worker’s Compensation Claim

[20] The Applicant alleges that the GD erred in stating that she had never filed a claim pursuant to her 1998 back injury. I agree that the GD appears to have disregarded the Applicant’s testimony (at 42:00 of the hearing recording) that she applied for WCB benefits following her workplace accident, but I find this error immaterial, and it is unlikely that the GD based its decision on something that did or did not happen 13 years prior to the MQP.

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

Medications

[22] The Applicant alleges that the GD disregarded evidence that she takes Tylenol #3 to manage her pain. I agree that the GD makes no mention of this narcotic analgesic in its decision, but if the GD erred, it was in relying on documents that the Applicant herself supplied. Dr. Collett’s February 2014 medical report listed four medications but Tylenol #3 was not among them. Her application for benefits and accompanying questionnaire listed Tylenol, but only the non-narcotic variety. Similarly, several other medical reports (Dr. Giantomaso in March 2010 and Dr. Meerholtz in April 2009) made no mention of Tylenol #3. While the Applicant may be currently taking this painkiller, the GD was properly more interested in the status of her medications as of the MQP.

[23] I see no chance of success on this ground.

Rheumatoid Arthritis

[24] The Applicant criticizes the GD for noting that Dr. Giantomaso found no signs of rheumatoidism, but she does not identify any error in the summary of the physiatrist’s reports contained in decision paragraph 10(d), which itself is presented as a transcription of the Respondent’s submissions. Instead, the Applicant suggests that the GD should have taken note of arthritis among her family members despite their tendency to test negative for this condition. Again, the Applicant had an opportunity to present this point at her hearing and, if the GD chose to give it lesser weight, she is not permitted to resubmit and reargue it before the AD.

[25] The Applicant has not persuaded me that she has an arguable case on this ground.

Demeanour at Hearing

[26] The Applicant emphasizes that she appeared alert and lucid to the GD only because she temporarily withdrew from her medications in advance of the hearing. She argues that in making its decision the GD should have taken this fact into account, but I see no reasonable chance of success on this ground. In my cursory review of the hearing recording, I did not hear the Applicant describe her preparations to the GD. However, assuming that she did, the GD was within its authority to assign to that evidence what it judged was appropriate weight.

Carpal Tunnel Surgery

[27] The Applicant alleges that the GD overstated the beneficial effect of the December 2015 left carpal tunnel surgery and denies that there was any “quick fix.” I see no arguable case on this ground. The CTS and the surgery were discussed at the hearing and addressed in a paragraph devoted to post-MQP evidence, with the GD concluding it was not possible to extrapolate “severity” to the period prior to December 31, 2011. In any case, in noting that her condition was being “managed,” the GD was not so much making a conclusion about the efficacy of the surgery than observing there were treatment options available to the Applicant.

Error of Law

[28] I see no reasonable chance of success for the Applicant’s argument that the GD misapplied the prolonged criterion. Indeed, as the GD noted, it did not feel the need to apply the prolonged criterion as it had already found the Applicant’s disability fell short of “severe” as of December 31, 2011. As was held in Klabouch v. Canada (M.S.D.),^{Footnote 4} diagnosis does not equate to disability, and it is not inevitable that a medical condition identified prior to the end of an MQP must eventually result in incapacity, particularly where treatment options are available. The Inclima^{Footnote 5} case obligates CPP disability claimants to attempt, or at least explore, alternative forms of work that may be within their capabilities, and I see no indication that the GD, having found the Applicant had residual capacity, misapplied this principle to her situation.

[29] Finally, I note that the Applicant has submitted medical documents that were prepared after the GD’s decision was issued. An appeal to the AD is not ordinarily an occasion on which additional 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. 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 have 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

[30] As the Applicant has not presented an arguable case on any ground, the application for leave to appeal is refused.