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Reasons and decision
Decision
[1] The appeal is dismissed.
Overview
[2] The Appellant completed high school and obtained a post-secondary certificate as an auto technician. He worked as an auto technician and foreman until November 2010. He claimed that he could no longer work because of severe headaches, neck and shoulder pain, dizziness, blurred vision and decreased range of motion, all of which were associated with a concussion. He also suffered some significant burns in 2011 but stated that this did not contribute to his claimed disability. The Appellant applied for a Canada Pension Plan disability pension in 2012. The Respondent refused this application. The Appellant appealed the Respondent’s decision to the Social Security Tribunal of Canada (Tribunal). On April 25, 2016, the Tribunal’s General Division determined that the Appellant did not have a severe disability under the Canada Pension Plan (CPP).
[3] The Appellant applied for leave to appeal to the Tribunal’s Appeal Division, which was granted on October 24, 2017. This appeal was decided on the basis of the written record after considering the following:
- Pursuant to paragraph 37(a) of the Social Security Tribunal Regulations, the Member has determined that no further hearing is required.
- The requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
- The Appellant's counsel advised that he relied on the documents he filed in support of the application for leave to appeal.
- The Respondent filed detailed submissions on all relevant issues.
The law and analysis
[4] The Federal Court of Appeal decision Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, decided that administrative tribunals must look first to their home statutes for guidance in determining their role and what standard of review is to be applied to a decision under review. The Department of Employment and Social Development Act (DESD Act) is the home statute for this Tribunal.
[5] The only grounds of appeal available under the DESD Act are set out in subsection 58(1), namely that the General Division failed to observe the principles of natural justice, made an error of law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. Paragraphs 58(1)(a) and (b) of the DESD Act do not qualify errors of law or breaches of natural justice, which suggests that the Appeal Division should afford no deference to the General Division’s interpretations. The word “unreasonable” is not found in paragraph 58(1)(c), which deals with erroneous findings of fact. Instead, the test contains the qualifiers “perverse or capricious” and “without regard for the material before it.” This language suggests that the Appeal Division should intervene when the General Division bases its decision on an error that is clearly egregious or at odds with the record.
[6] The Appellant presents detailed submissions in the application for leave to appeal. In these submissions, the Appellant argues that the General Division erred in law and based its decision on erroneous findings of fact under subsection 58(1) of the DESD Act. I must decide whether the General Division erred under subsection 58(1) of the DESD Act. Each of the Appellant’s arguments is considered below.
The appellant did not work after November 2010
[7] The Appellant testified at the General Division hearing that he had not worked at all after November 2010, and he disputed the statements in Dr. Wood’s letter of December 2011 that he worked in a garage on his home property and that he worked “long hours.” His testimony at the hearing was that a relative ran this business and that although he occasionally participated, he was not paid for it, and was not able to work at all. When the Appellant sought leave to appeal, he argued that the General Division erred because it referred to Dr. Wood’s report in the decision. In his submissions, he claimed that his work at the garage on his property was part-time and demonstrated that he could not obtain or maintain work because of his disability, as required by the Court in Inclima v. Canada (Attorney General), 2003 FCA 117.
[8] The appeal cannot succeed on the basis of this argument. The General Division’s mandate is to receive the parties’ evidence, weigh it and make a decision. It therefore did not err by considering Dr. Wood’s report.
[9] The Appeal Division is generally not to consider new evidence on an appeal (see Canada (Attorney General) v. O’keefe, 2016 FC 503). The Appellant’s evidence at the General Division hearing was clear that he did not work at all after November 2010. If I were to now accept that his activity at the garage was a failed work attempt, I would be accepting a change in the evidence, which I cannot do. The General Division did not err in finding that the Appellant had not worked after November 2010.
[10] The Appellant also argues that Dr. Wood’s report could be interpreted to refer to the Appellant working long hours prior to November 2010. I am not satisfied that the General Division erred in not interpreting the report in this fashion. The wording of the report indicates, on its face, that the Appellant was working long hours in December 2011, when the report was written. The General Division’s finding of fact that this report supported the conclusion that the Appellant had capacity to work was not made perversely, capriciously, or without regard for the material that was before it.
[11] Further, I am satisfied that the General Division provided sufficient reasons for its conclusion that the Appellant had capacity to work, at least part-time, with some restrictions. Paragraph 44 of the decision states that this conclusion was reached on the basis of all of the evidence. This included the Appellant’s testimony and all of the medical reports, including those that recommended that a return to work program for the Appellant be implemented, the Appellant being almost asymptomatic in 2011, and Dr. LeRoux’s report in January 2011, that the Appellant was capable of light duties.
[12] Finally, as the General Division also determined that the Appellant had some work capacity, it correctly concluded that the Appellant had not met his obligation to demonstrate that he could not obtain or maintain work because of his conditions.
Post-hernia surgery report
[13] On November 27, 2012, Dr. Roldan wrote a discharge summary after the Appellant underwent hernia repair surgery. He wrote that the Appellant should not lift more than 10 pounds for six weeks. The General Division determined that such a note is normally provided in the context of someone who is working or expected to work.
[14] The Appellant argues that this was an erroneous finding of fact under subsection 58(1) of the DESD Act, as this restriction is “standard” and would refer to lifting in general, not to lifting only in a work setting. This may be so. However, Dr. Rodan’s report was but one piece of evidence that indicated that the Appellant had capacity to work. The decision also refers to the multidisciplinary report in August 2011 that recommended a return to work program, multiple documents prepared for the workers’ compensation program, Dr. Wood’s notes that indicate capacity to work with restrictions, and Dr. LeRoux’s reports that indicate the same. The conclusion that the hernia discharge report was directed to work restrictions was not material to the outcome of the General Division appeal.
[15] In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, the Supreme Court of Canada decided that the reasons for a decision are to be considered as a whole along with the result to determine whether an appellate body should intervene. Decisions are also not to be read hypercritically (see Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425). In this case, when the General Division reasons are examined as a whole, it is clear that the General Division considered all of the written evidence as well as the Appellant’s testimony and weighed it to reach the conclusion that he had some capacity to work at light duties, that he had not made an effort to do so after November 2010, and that he did not suffer from a severe disability as that term is defined in the CPP. Accordingly, I am satisfied that even if the General Division erred in concluding that the lifting restrictions after the hernia repair surgery indicated some capacity to work, it was not material to the decision made in the appeal. The appeal cannot succeed on this basis.
Reliability of work capacity
[16] Finally, the Appellant argues that the General Division decision was deficient as it failed to assess whether he could work on a reliable basis. He correctly stated that whether a claimant is able to attend work reliably is a cornerstone of the assessment of disability under the CPP. The Appellant argues that he could not be a reliable worker because he has to nap five to six times each day, and that the General Division erred in not considering this specifically.
[17] The Federal Court of Appeal has decided that a tribunal is presumed to have considered all of the evidence before it, including testimony and written material. Each and every piece of evidence need not be mentioned in the written decision (Simpson v. Canada (Attorney General), 2012 FCA 82). While the General Division decision does not specifically state that the Appellant naps five or six times each day, it sets out a detailed summary of the evidence that both bolstered and negated the Appellant’s contention that he was disabled. The decision analyzed this evidence.
[18] Paragraph 40 of the decision correctly states that it is not the diagnosis of a condition, but its effect on a claimant’s “ability regularly to pursue any substantially gainful occupation that will determine whether he had a severe disability.” This statement indicates that the General Division had turned its mind to the issue of reliability. However, this issue could not be examined in detail as the Appellant had testified clearly that he did not work after November 2010. Accordingly, there was no evidence regarding his capacity to work on a regular or predictable basis. The General Division made no error in this regard.
[19] For these reasons, I am satisfied that the General Division did not make any error under subsection 58(1) of the DESD Act, and that the appeal must be dismissed.