Canada Pension Plan (CPP) disability

Reasons and decision

Introduction

[1] On November 3, 2016, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that a disability pension under the Canada Pension Plan (CPP) was not payable to the Applicant.

[2] The Applicant filed an application for leave to appeal (Application) with the Tribunal’s Appeal Division on February 3, 2017.

[3] The Applicant’s reasons for appeal can be summarized as follows:

1. The General Division erred in law and based its decision on an erroneous finding of fact that it had made in a perverse or capricious manner or without regard for the material before it.
2. The General Division did not place great weight on Dr. Garfat’s opinion letter of March 2012 that states that the Applicant is unable to re-enter the workforce.
3. Dr. Garfat’s clinical notes and records of February and March 2012 made reference to the Applicant “working part-time.” This had been an unsuccessful attempt to return to work, which the General Division did not explore.
4. The finding in paragraph 41 of the General Division decision that the Applicant had been “working part-time” was made in a perverse or capricious manner or without regard for the material before it, and it was due to a failure to apply the law as it relates to an unsuccessful return to work.

Issue

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

The law

[5] Pursuant to subsections 57(1) and (2) of the Department of Employment and Social Development Act (DESD Act), an application for leave to appeal must be made to the Appeal Division within 90 days after the day on which the decision appealed from was communicated to the appellant.

[6] According to subsections 56(1) and 58(3) of the DESD Act, “An appeal to the Appeal Division may only be brought if leave to appeal is granted,” and “The Appeal Division must either grant or refuse leave to appeal.”

[7] Subsection 58(2) of the DESD Act provides that “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

[8] Subsection 58(1) of the DESD Act states that the only grounds of appeal are 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.

Analysis

[9] The Applicant had applied for a disability pension in September 2014. The Respondent refused the application initially and upon reconsideration on the basis that, while the Applicant had certain restrictions due to his medical condition, the information did not show that those limitations prevented him from doing some type of work.

[10] The Applicant appealed that decision to the Tribunal’s General Division. The General Division decided the appeal after conducting an in-person hearing. The Applicant gave evidence at the hearing. The Respondent was not present but had filed written submissions prior to the hearing.

[11] The issue before the General Division was whether the Applicant had had a severe and prolonged disability on or before December 31, 2011, which was his minimum qualifying period (MQP).

[12] The General Division reviewed the evidence and the parties’ submissions. It rendered a written decision that was understandable, sufficiently detailed and that provided a logical basis for the decision. The General Division weighed the evidence and gave reasons for its analysis of the evidence, as well as of the law. These are the General Division’s proper roles.

[13] The Application submitted to the Appeal Division argues that the Applicant’s “part-time work” in February and March 2012 had been an unsuccessful return to work, and that the General Division failed to properly take this into account in the weight it gave to the opinion of Dr. Garfat, formerly the Applicant’s family physician, that he was unable to return to the workforce.

[14] The General Division decision notes Dr. Garfat’s March 2012 opinion letter at paragraph 31 of its decision:

[31] On March 29, 2012, Dr. Garfat provided a letter to the Appellant’s legal representative to assist the Appellant with the appeal of his ODSP claim. The Appellant is noted to have a work history as a handyman/carpenter. Dr. Garfat wrote of his history of alcoholism and seizures as well as left-hand pain, ankle pain and bilateral shoulder pain. His medications are listed as Oxycocet and Pantoloc. He has decreased functional strength and stamina, and is unable to participate in sustained activity. He is restricted from lifting, pulling, and pushing and has some minimal difficulties with ambulation. Dr. Garfat offered the following opinion:

It is my opinion that [the Appellant] is unable to re-enter the work force given his limited education/training and that he is unable to participate in his previous physical type work due to his medical disabilities. As stated he has a long history of alcohol abuse and there is a risk of further seizures or TIA events if he continues with this addiction (GD2 – 171).

[15] At paragraph 35, the General Division references Dr. Garfat’s clinical notes, which indicate that the Applicant was working part-time in March 2011, February 2012 and March 2012.

[16] The General Division explains the weight that it gave to Dr. Garfat’s March 2012 opinion at paragraph 41, as follows:

[41] The Tribunal acknowledges Dr. Garfat’s opinion in his letter of March 2012 that the Appellant is unable to re-enter the workforce. However, his office notes from February and March 2012 document that the Appellant was working part-time. As such, the Tribunal did not place great weight on this letter as it questioned whether this long-time doctor was acting with “expected neutrality” (MHRD v. Angheloni, 2003 FCA 140).

[17] The Applicant argues that the General Division’s finding and, in particular, the weight given to Dr. Garfat’s March 2012 letter, was an error in the findings of fact and an error of law.

[18] Finding of fact: The General Division did not place “great weight” on this letter because it had been written contemporaneously to the same doctor’s clinical notes showing that the Applicant had been working part-time. In other words, the doctor noted that the Applicant had been working in February and March 2012 and he wrote an opinion letter stating that the Applicant “is unable to re-enter the workforce” in the same time period. The doctor’s clinical notes do not comment on the part-time work as having failed by reason of the Applicant’s condition. The May 2012 clinic notes state that the Applicant is not working and is leaving for vacation. The General Division was faced with contradictory information from the same doctor at the same time: clinical notes stating that the Applicant was working part-time and an opinion letter stating that the Applicant is unable to work. The General Division was required to explain its reasons for deciding that contradictory evidence should be dismissed or has little or no weight assigned to it, and the General Division does that in paragraph 41. The weight to be assigned to evidence is a proper role of the General Division. This finding cannot be categorized as “made in a perverse or capricious manner or without regard for the material before it.”

[19] Error of law: If the Applicant is raising a new legal issue, then this should have been done prior to now. The onus is on the claimant to demonstrate that he or she has a severe and prolonged disability as defined in the CPP. It is incumbent on the claimant to seek the opinion evidence that it requires prior to the hearing of the appeal at the General Division. In addition, a claimant for a CPP disability pension has an obligation to notify the Respondent of a return to work (full, part-time, volunteer or trial period): for example see GD2-21 and GD2-451. At the General Division hearing, the Applicant did not testify that his work in February and March 2012 had been a failed attempt at returning to work. There was no evidence in the material before the General Division that the Applicant had considered his part-time work to be a failed attempt at returning to work. The Applicant has no basis to assert that the General Division failed to consider and apply the law as it relates to “an unsuccessful return to work,” when he did not give evidence supporting this assertion or present submissions to this effect prior to his Application before the Appeal Division. The General Division did not err in law by failing to consider evidence and arguments that had not been presented to it.

[20] Once leave to appeal has been granted, the Appeal Division’s role is to determine whether the General Division has made a reviewable error set out in subsection 58(1) of the DESD Act and, if so, to provide a remedy for that error. In the absence of such a reviewable error, the law does not permit the Appeal Division to intervene. It is not the Appeal Division’s role to rehear the case de novo. It is in this context that the Appeal Division must determine, at the leave to appeal stage, whether the appeal has a reasonable chance of success.

[21] I have read and carefully considered the General Division decision and the record. There is no suggestion that the General Division failed to observe a principle of natural justice or that it otherwise acted beyond or refused to exercise its jurisdiction in coming to its decision. The Applicant has not identified any errors in law or any erroneous findings of fact that the General Division, in coming to its decision, may have made in a perverse or capricious manner or without regard for the material before it.

[22] I am satisfied that the appeal has no reasonable chance of success.

Conclusion

[23] The Application is refused.