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Reasons and decision
Decision
[1] The appeal is allowed.
Introduction
[1] This is an appeal of the decision of the General Division (GD) of the Social Security Tribunal (SST) issued on April 15, 2016, which dismissed the Appellant’s application for a disability pension on the basis that she did not prove that her disability was severe, for the purposes of the Canada Pension Plan (CPP), prior to the minimum qualifying period (MQP) ending December 31, 2017. Leave to appeal was granted on November 22, 2016, on the grounds that the GD may have erred in rendering its decision.
Overview
[2] The Appellant submitted an application for CPP disability benefits on June 14, 2013. She disclosed that she was 39 years old and had training as a court reporter. She as employed as a data entry clerk for the Canada Border Services Agency from February 1998 until September 2010, when she stopped work after suffering injuries to her neck and back in an motor vehicle accident (MVA).
[3] The Respondent denied the application at the initial and reconsideration levels on the grounds that the Appellant’s disability was not severe and prolonged as of the MQP date. On June 24, 2014, the Appellant appealed these denials to the GD.
[4] At a videoconference hearing before the GD on April 11, 2016, the Appellant testified that her neck and lower back pain had progressed to chronic pain disorder and she suffered from fatigue, depression, anxiety and severe headaches. She said that her memory and ability to concentrate had deteriorated, and she was no longer capable of any form of employment.
[5] In its decision, the GD found that the Appellant’s disability fell short of the requisite severity threshold, noting that none of her treatment providers had reported any severe diagnostic findings. The GD also elected to give little weight to reports that were commissioned by the Appellant’s legal representative in support of litigation arising from the MVA, writing in paragraph 79:
To a large extent, they were informed advocates for their respective clients. They opined on some of the very questions that the Tribunal must decide even though they are not trained in the interpretation or application of CPP legislation. They are not the Appellant’s treating physicians. As the Minister has submitted, the opinions and conclusions of these doctors, as well as the clinical/office notes, clearly demonstrate inconsistency in the findings.
[6] On June 14, 2016, the Appellant’s representative filed an application for leave to appeal with the Appeal Division (AD) of the SST alleging the various errors on the part of the GD. In my decision of November 22, 2016, having considered all of the Appellant’s allegations, I thought there was an arguable case that the GD may have failed to observe a principle of natural justice by dismissing specialist reports merely because they were commissioned by the Appellant’s legal representative. Leave to appeal was granted solely on that ground.
[7] On December 28, 2016, the Respondent filed submissions in which it acknowledged that it was unclear whether the GD had unfairly dismissed specialist reports. It noted that the audio recording of the hearing before the GD was incomplete and ended prematurely during the Appellant’s submissions. The Respondent consented to the matter be referred back to the GD for a hearing de novo under subsection 59(1) of the DESDA.
[8] Having heard from the parties, I have now decided that an oral hearing is unnecessary and the appeal can proceed on the basis of the documentary record for the following reasons:
- There are no gaps in the file or need for clarification;
- The Respondent has agreed to a rehearing of the Appellant’s disability claim on its merits;
- This form of hearing respected the requirements under the Social Security Tribunal Regulations (SST Regulations) to proceed as informally and quickly as circumstances, fairness and natural justice permit.
The law
[9] Subsection 58(1) of the DESDA sets out that the only grounds of appeal are the following:
- (a) The GD failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The GD erred in law in making its decision, whether or not the error appears on the face of the record; or
- (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.
Issue
[10] Did the GD fail to observe a principle of natural justice by dismissing specialist reports merely because they were commissioned by the Appellant’s legal representative?
Submissions
[11] In her notice of appeal, the Appellant alleged that the GD discounted the reports of Drs. Waisman, Rathbone, Fern, Potashner and Scherer on the basis that they were commissioned by the Appellant’s legal representative in support of litigation arising from the MVA. In doing so, the GD unfairly and concluded without reason that these specialists were advocating for the Appellant.
[12] As noted above, the Respondent has conceded that the GD’s disposition of the Appellant’s file may have been procedurally unfair, thereby warranting a new hearing on the merits of her CPP disability claim.
Analysis
[13] A plain reading of the GD’s decision alone persuades me that it discounted documentary medical evidence simply because it was commissioned by the Appellant’s representative. In doing so, the GD breached a rule of procedural fairness by failing to consider the evidence before it and dismissing entire category of evidence out of hand without offering defensible reasons for doing so. While the GD suggested that a premium should be placed on the opinions of treating physicians, I note that it did not similarly devalue medical-legal reports commissioned by the Appellant’s automobile insurer. I also note that the GD endorsed the Respondent’s position that the reports of Dr. Waisman et al. pointed to “inconsistency in the findings,” but it did not specify any inconsistencies or explain why they rendered the reports unreliable.
[14] It appears a factor in the Respondent’s decision to consent to this matter being referred back to the GD was the absence of a complete audio recording from the April 6, 2016 hearing. While I agree that a full record of the hearing might have offered more insight into the GD’s treatment of the medical-legal reports, the GD’s decision by itself provides confirmation enough of a breach of natural justice.
Conclusion
[15] For the reasons discussed above, the appeal succeeds on the ground for which leave was allowed.
[16] Section 59 of the DESDA sets out the remedies that the AD can give on appeal. To avoid any apprehension of bias, it is appropriate in this case that the matter be referred back to the GD for a de novo hearing before a different GD member.