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Reasons and decision
Decision
The application requesting leave to appeal is refused.
Introduction
[1] The Applicant is requesting leave to appeal a decision of the General Division of the Social Security Tribunal of Canada (Tribunal), dated October 19, 2017, which denied the Applicant a disability pension under the Canada Pension Plan (CPP). The General Division determined that the Applicant had failed to establish that she suffered a severe disability on or before her minimum qualifying period (MQP), which is the date by which an applicant must prove that they suffer a severe and prolonged disability. The MQP is determined based on Canada Pension Plan contributions that the applicant has made.
[2] In this case, the General Division found that, following the Applicant’s MQP date, the Applicant’s health condition had improved significantly and she had regained some capacity for employment. Because she failed to demonstrate that she attempted to find work once her health condition had improved, the General Division determined that she was not entitled to disability benefits under the CPP.
[3] In order to appeal a General Division decision, leave to appeal must first be granted. The Applicant filed an application for leave to appeal (Application) with the Tribunal’s Appeal Division on October 26, 2017.
Issue
[4] Does the Applicant’s argument that the General Division erroneously found that the Applicant demonstrated some capacity to work have a reasonable chance of success?
The law
[5] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESD Act), an appeal to the Appeal Division may be brought only if leave to appeal is granted, and the Appeal Division must either grant or refuse leave to appeal.
[6] Subsection 58(2) of the DESD Act provides that leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
[7] According to subsection 58(1) of the DESD Act, the only grounds of appeal are that the General Division: (a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) erred in law in making its decision, whether or not the error appears on the face of the record; or (c) 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.
Submissions
[8] The Applicant submits that the General Division erred in finding that the Applicant had experienced “significant improvements” between 2009 and 2011, to the extent that she regained some capacity to work. The Applicant argues that she attempted to volunteer within her community and that she was not able to do so as a result of her health condition. This, she states, is evidence of her inability to work.
[9] The Applicant further submits that there is no employer who would provide accommodations to the extent necessary in order for her to work.
[10] Finally, the Applicant submits that the General Division failed to assess her capacity to work in a “real world” context, as set out by the Court in Villani v. Canada (Attorney General), [2002] 1 FCR 130, 2001 FCA 248. That is, the General Division failed to properly apply the Villani factors to this Applicant’s circumstances.
Analysis
Did the General Division err in finding that the applicant had experienced “significant improvements” between 2009 and 2011?
[11] It is the Appeal Division’s role to review the underlying record and determine whether the General Division failed to account for any evidence, misconstrued evidence, or whether the General Division overlooked evidence that it ought to have considered in reaching its decision. Leave to appeal should normally be granted where this review of the underlying record demonstrates that the evidence was not appropriately considered (Joseph v. Canada (Attorney General), 2017 FC 391).
[12] In this case, the Applicant argues that the General Division improperly assessed the evidence in the record pertaining to the progress of her health condition. It is her position that, even though the symptoms of her fibromyalgia had subsided as a result of the medications she had been prescribed, she remained disabled. She alleges that the improvements that she experienced were insignificant and temporary, as evidenced by the fact that she had attempted to volunteer at a community Christmas dinner but was incapable of doing so as a result of her health condition. She argues that, if she is not able to volunteer periodically, she is not capable of working consistently and predictably.
[13] While I acknowledge that there is existing jurisprudence that recognizes that the Applicant’s subjective experiences with respect to her health condition and subsequent consequences on her ability to engage regularly in gainful employment are important considerations,Footnote 1 applying the test for determining disability under the CPP articulated by the Court in Villani “does not mean that everyone with a health problem who has some difficulty finding and keeping a job is entitled to a disability pension.” The Court held that “[m]edical evidence will still be needed as will evidence of employment efforts and possibilities.”
[14] The General Division has provided a comprehensive summary of the medical evidence in the record along with a summary of the Applicant’s oral testimony at the hearing. The Applicant acknowledged that her physical health had improved with the use of prescribed medications for her fibromyalgia, so much so that Dr. Fehlings noted the improvement to be “dramatic,” and the Applicant was taken off a waiting list for surgery in 2010. In 2011, the Applicant was reported to be capable of walking an hour per day and swimming 30 minutes per day. The improvements to her health did not continue, as the Applicant chose to stop taking the prescribed medication because, she has alleged, the prescribed medication caused her to become “foggy.” The General Division did recognize that medications can cause some cognitive impairment, but the General Division found that the benefits of continuing with the medications outweighed the side effects.
[15] Although the Applicant argues that in 2011 she was incapable of volunteering in her community and that this fact substantiates her claim that she cannot work at any gainful employment, the General Division found that the deterioration in her health condition was attributable to the fact that she had refused to continue taking her prescribed medication. The General Division did not find that this refusal was reasonable.Footnote 2
[16] The Applicant has pointed to the fact that the General Division admits at paragraph 110 of the decision that, “at the time of her MQP [the Applicant] was still working on getting better, and at that time not in a position to work, though the possibility was there in the future” was contrary to the General Division’s finding that the Applicant demonstrated capacity to work following her MQP. I disagree. The General Division was merely recognizing that, following the Applicant’s workplace accident, she may not have been in a position to work right away but, with time to heal and with reasonable efforts to mitigate the impact of her resultant health condition, there was evidence to conclude that the Applicant’s health condition may improve sufficiently such that she could regain capacity to work. In fact, the General Division found that this was the case.
[17] In the absence of any substantiated error of fact, I would not interfere with the General Division’s conclusion that the Applicant’s health condition had improved from 2009 to 2011 to the extent that she had capacity to work, but that she had failed to prove that she had made efforts to obtain employment within her limitations.
[18] Leave to appeal is not granted on this ground, as I do not find that it has a reasonable chance of success.
Does the argument that there is no employer who would provide accommodations necessary for her to work have a reasonable chance of success?
[19] The Applicant has alleged that she is unable to obtain alternate employment within her limitations because her limitations are so extensive that there is no employer who could reasonably be expected to accommodate the Applicant’s fibromyalgia condition and the restrictions associated with it.
[20] The General Division found that the Applicant’s limitations associated with her fibromyalgia condition improved once she had complied with recommended treatment and took the pain medication that she had been prescribed. The General Division decided that her refusal to take the prescribed medications was unreasonable, and I have already found that the General Division was judicious in making this determination. The General Division acknowledges, at paragraph 86 of the decision, that the Applicant’s choice not to follow prescribed treatment options is hers to make independently. However, the General Division also noted that “[s]he must be willing to accept the consequences of her decision […]” In particular, whereas it is the independent choice of an applicant whether they follow advised treatment options, assessing the reasonableness of that choice remains with a decision-maker tasked with determining entitlement to disability benefits.
[21] The Applicant has argued that, while taking the prescribed medications, she suffered a cognitive impairment, which she referred to as “fibro fog.” The General Division could not conclude that the degree of cognitive impairment she experienced prevented her from obtaining employment, because there was no evidence that she had attempted to find employment. There is also no evidence to substantiate the Applicant’s claim that “[s]he is not capable of anything,” and that “[t]here is no job” that would accommodate her functional limitations. Repeating the General Division’s findings regarding the Applicant’s employability would be pertinent here:
[103] Her physiotherapist, David Henschel noted in 2006 that she had not made any improvements to allow her to return to work. By 2010 Dr. Fehlings noted she gets occasional low back pain and she herself felt she had much improved. As well, her fibromyalgia was under control since 2009.
[104] Dr. Jinnah noted in April 2011 while she was weaning herself off medications that she was still exercising and her generalized pain had improved significantly, along with her fatigue and mental health.
[105] Between 2009 and 2011 where the doctors had noted significant improvements in both conditions the Appellant did not attempt to return to any occupation.
[106] She has a duty to prove she is incapable of working due to her health conditions. [My emphasis]
[22] The Applicant has not adduced any evidence to prove that she is incapable of working, nor has there been any evidence that efforts to obtain employment have failed as a result of the Applicant’s health condition. I see no basis on which it would be appropriate to interfere with the General Division’s finding on this issue, as the General Division has appropriately exercised its authority as trier of fact to consider and weigh the available evidence, or lack thereof, and, in applying the relevant law to the evidence, has come to a defensible conclusion.
[23] As a result, I do not find that the Applicant’s argument has a reasonable chance of success, and leave to appeal is not granted on this ground.
Did the General Division fail to properly apply the Villani factors?
[24] The Applicant has argued that the General Division failed to discuss the Villani factors in the analysis portion of the decision, and it is not plain and obvious in reading the General Division decision that the Villani factors were properly applied.
[25] In fact, the General Division did consider the Applicant’s background and personal characteristics in assessing her impairments and the impact, if any, the Villani factors would have on her ability to work.
[26] At paragraph 100 and 101, the General Division assesses that the Applicant was 52 years old at the time of her MQP. She was educated, and she fluently spoke English. She had had a number of employment positions in the past and had acquired some transferable skills as a result. There were no apparent barriers associated with the Applicant’s personal circumstances which prevented her from being capable of alternate employment.
[27] The General Division was clearly aware of the requirement to assess the Applicant’s employability in a “real world” context as prescribed by the Court in Villani. While the General Division was aware of Villani and, while it further addressed each of the Villani factors in its decision, the General Division saw no need to apply Villani in this case.
[28] While the Applicant has argued that she is now 62 years old and that the General Division should have considered this fact in assessing the Applicant’s employability presently, the Applicant has the burden to prove that she is incapable regularly of pursuing any gainful employment on or before her MQP date. At that time, she was 52 years old and the General Division recognized that she still had over 10 years before she reached retirement age. In my view, the General Division appears to have correctly applied the Villani factors in assessing the severity of the Applicant’s disability.
[29] I do not consider that this argument has a reasonable chance of success.
Conclusion
[30] As the Applicant has not identified any grounds of appeal under subsection 58(1) of the DESD Act that would have a reasonable chance of success on appeal, the Application is refused.