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Reasons and decision
Decision
[1] The application requesting leave to appeal is refused.
Overview
[2] The Applicant, E. G., was a self-employed retailer for several years until she sustained a fracture to her left ankle in February 2013. Because of the gravity of her injury, she was unable to continue to operate her business. Despite undergoing surgery and participating in various forms of therapy, she has been left with significant limitations involving her ankle, which are likely to progress, and the possibility of developing significant arthritis. The Applicant claims that she has depression and that she has been diagnosed with Paget’s disease. In July 2016, she also wrote that investigations had revealed the existence of precancerous cells (GD4-1), although she ruled this out in a phone conference with the Respondent in February 2017 (GD5-10) and again during the hearing before the General Division.
[3] The Applicant claims that she has been unable to work because of her multiple medical issues, although she has been working on an on-call, part-time basis. She applied for a Canada Pension Plan disability pension, but the Respondent, the Minister of Employment and Social Development, denied her claim. The Applicant appealed the Respondent’s decision to the General Division, which dismissed her appeal on the basis that it found that she did not have a severe and prolonged disability. (The Applicant has a minimum qualifying period that ends on December 31, 2017.)
[4] The Applicant now seeks leave to appeal the General Division’s decision, on the ground that 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, and on the ground that it “did not have accurate information.” She also provided an amended medical report from her orthopaedic surgeon. I must consider whether the appeal has a reasonable chance of success.
Issue
[5] The issue before me is whether the appeal has a reasonable chance of success on any of the grounds that the Applicant has raised.
Grounds of appeal
[6] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) sets out the grounds of appeal as being limited to the following:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (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.
[7] Before leave can be granted, 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 of Canada endorsed this approach in Tracey.Footnote 1
Analysis
Did the General Division base its decision on an erroneous finding of fact?
[8] No. I find that the General Division did not base 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.
[9] The Applicant argues that the General Division erred at paragraph 20, when it wrote that when she was seen in follow-up at the fracture clinic in August 2014, she was noted to be “doing great, no pain, no issues.” The Applicant denies that she has ever been pain-free after her injury.
[10] The General Division in fact was not making any particular findings of fact at paragraph 20. The paragraph formed part of its summary of the evidence. Although the General Division referred to this observation that she was “doing great, no pain, no issues,” at the same time, the General Division accepted that the Applicant has ongoing pain in her left ankle, as it then noted the orthopaedic surgeon’s subsequent opinion that the Applicant continues to experience pain and stiffness in her ankle, which limits her ability to stand and walk for prolonged periods. The General Division also noted the opinion of Dr. Townley, another orthopaedic surgeon, that the Applicant’s functional limitations were likely to persist and worsen over time and that the Applicant could develop an arthritic condition (GD1-7 to 8).
[11] The orthopaedic surgeon’s follow-up report of August 25, 2014 established an evidentiary basis for the General Division to conclude that the Applicant had reported or was at least observed as “doing great” and was not having any pain or any issues on that particular date (GD2-67). In that regard, it cannot be said that the General Division based its decision on an erroneous finding of fact that it made in either a perverse or capricious manner or without regard for the material before it. I am not satisfied that the appeal has a reasonable chance of success on this particular ground.
Did the General Division base its decision on inaccurate information?
[12] The Applicant alleges that there was inaccurate information before the General Division. She now seeks to correct the record by providing an amended medical report from her orthopaedic surgeon (AD1-5).
[13] The amended report replaces the August 25, 2014 report. The report no longer reads, “Today, she is doing great. No pain, no issues.” In its place, the orthopaedic surgeon now writes, “Today, she is doing better but still has pain.”
[14] This amended report could provide the basis for an application to rescind or amend the General Division’s decision. Under section 66 of the DESDA, an applicant can apply to rescind or amend a General Division’s decision, provided that new facts are presented or the General Division is satisfied that its decision was made without knowledge of, or was based on a mistake as to some material fact; or, a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence.
[15] However, I am doubtful that the General Division had in fact based its decision on the orthopaedic surgeon’s original August 2014 report. As I noted above, although the General Division referred to the August 2014 report, at the same time, it accepted that the Applicant has ongoing, progressive pain in her left ankle.
[16] As the General Division did not base its decision on the August 2014 medical report, then it would likely not consider the amended report to be material, for the purposes of subsection 66(1) of the DESDA.
[17] Otherwise, I see no basis for me to consider the orthopaedic surgeon’s amended report. It has now become well-established law that new evidence generally is not permitted on an appeal under subsection 58(1) of the DESDA, given that an appeal is limited to the three grounds of appeal listed in that same section.Footnote 2 While there are exceptions to this rule, the Applicant’s circumstances do not fall within any of them.
[18] Essentially, the Applicant is requesting a reassessment of her claim, on the basis of the amended report. However, subsection 58(1) does not allow for a reassessment or rehearing of the evidence: Tracey, supra.
[19] I have, however, examined the medical evidence and compared it to the General Division’s decision, to ensure that the General Division did not overlook or possibly misconstrue important evidence, in keeping with the Federal Court’s direction to do so.Footnote 3 The medical evidence largely focused on the Applicant’s ankle issues. The General Division did not downplay or mischaracterize the significance of the Applicant’s ankle issues. It simply found that the Applicant’s ankle issues alone were insufficient to render the Applicant incapable regularly of pursuing any substantially gainful occupation.
[20] The General Division also considered the Applicant’s other medical complaints, on a cumulative basis. There was no medical evidence to substantiate the Applicant’s complaints of depression or Paget’s disease. The General Division noted that treatment was ongoing and that there was some prospect for improvement in the Applicant’s mental health issues.
[21] The General Division’s analysis and findings were consistent with the evidence before it. The General Division also conducted a “real world” analysis and it considered the Applicant’s particular circumstances. I see no indication that the General Division either overlooked or possibly misconstrued important evidence, or that it made any errors of law, whether or not the error appears on the face of the record.
Conclusion
[22] The Applicant still has the opportunity to reapply for a disability pension because the information that is available concerning her Canada Pension Plan contributions indicates that her minimum qualifying period is scheduled to end on December 31, 2017.Footnote 4 However, this leaves a narrow window between March 22 and December 31, 2017 within which she would have to prove she became severely disabled.
[23] I note from the General Division’s decision that the Applicant was on a lengthy waiting list for treatment for her mental health issues and that she was waiting to be referred to a pain management program and for cognitive behavioural therapy. The General Division also noted that the Applicant was currently under an orthopaedic surgeon’s care for Paget’s disease. The Applicant provided few, if any, records documenting these medical issues. I do not know whether the Applicant intends to obtain and produce these records and whether any medical records relating to these particular conditions could provide a credible basis for an application to rescind or amend the General Division’s decision or whether they could assist the Applicant (in a new application) in establishing that she became disabled between March 22 and December 31, 2017.
[24] In conclusion, I am not satisfied that the appeal has a reasonable chance of success and accordingly, the application for leave to appeal is refused.