Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] The Applicant moved to Canada from India in 1997. In India, she had obtained a Grade 10–11 education, but when she arrived in Canada she was enrolled in Grade 9 because of her lack of English comprehension. She did not continue school after Grade 9.

[3] The Applicant sustained a workplace injury while working as a kitchen helper at a fast food restaurant and stopped working on August 20, 2008.

[4] The Respondent, the Minister of Employment and Social Development, received the Applicant’s application for a Canada Pension Plan (CPP) disability pension on October 29, 2015. The Applicant claimed that she was disabled because of her physical and psychological medical conditions. The Respondent denied the application initially and on reconsideration. The Applicant appealed the reconsideration decision to the General Division of the Social Security Tribunal, and in a decision dated October 26, 2017, the General Division dismissed the appeal, finding that the Applicant did not have a severe and prolonged disability at the time of her minimum qualifying period (MQP) date of December 31, 2014.

[5] The Applicant is requesting leave to appeal, alleging that the General Division erred by failing to consider the totality of the evidence and by failing to apply the principles in Villani. v. Canada (Attorney General).^{Footnote 1}

Issues

[6] I must determine whether either of these issues raises an argument that would have a reasonable chance of success on appeal:

Analysis

[7] According to ss. 56(1) and 58(3) of the Department of Employment and Social Development Act (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.”

[8] Section 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.”

[9] According to s. 58(1) of the DESD Act, 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.

[10] It should be noted that the Appeal Division does not have the jurisdiction to interfere with General Division decisions on questions of mixed fact and law. A question like, “Do the facts satisfy the legal test?” would be one of mixed fact and law. While an applicant may make allegations of how the General Division erred, these alleged errors must fall under one of the three grounds of appeal in s. 58(1) of the DESD Act.^{Footnote 2}

[11] The process of assessing whether to grant leave to appeal is a preliminary one. The review requires an analysis of the information to determine whether there is an argument that has a reasonable chance of success on appeal. This is a lower threshold to meet than the one that must be met on the hearing of the appeal on the merits. The Applicant does not have to prove the case at the leave stage.^{Footnote 3}

Issue 1: Did the General Division base its decision on an erroneous finding of fact by failing to consider the evidence in its totality?

[12] The Applicant alleges that the General Division failed to consider the totality of the evidence. I must determine whether this argument has a reasonable chance of success on appeal. Specifically, the Applicant argues that the following medical evidence was overlooked:

1. Dr. Heller’s April 2009 report recommending physiotherapy, which the Applicant could not afford. This report also suggested that the Applicant did not require surgical intervention.
2. Dr. Seligman’s February 7, 2011, examination findings that the Applicant’s condition had worsened, including a tender lumbosacral spine and a weakened left leg.
3. Dr. Ahmed’s diagnosis that the Applicant had chronic pain syndrome, depression with anxiety symptoms, and a General Assessment of Functioning (GAF) rating of 53; Dr. Ahmed’s reports stating that the Applicant’s illness affects her cognition, memory, and concentration; and Dr. Ahmed’s reports stating that the Applicant is completely disabled and that it is unlikely she will return to work for an indefinite period of time.

[13] The General Division is the trier of fact, and an administrative tribunal is presumed to have considered all of the evidence before it. The General Division member was tasked with determining the facts, weighing the evidence, and concluding the matter based on an unbiased analysis of the file as well as the oral evidence provided at the hearing. As the trier of fact, the General Division considers which evidence is most credible and reliable. Then the General Division must provide reasons for making determinations regarding the evidence before it (s. 54(2) of the DESD Act).

[14] The General Division considered Dr. Heller’s report in paragraph 36 of its decision and Dr. Seligman’s report in paragraph 37. In her submissions, the Applicant argues that the following evidence from those reports was overlooked:

1. Dr. Heller’s report dated August 2009 states that the Applicant was seen for a multidisciplinary health care assessment and that he suggested physiotherapy, which the Applicant could not afford. Dr. Heller also suggested that the Applicant did not require surgical intervention.
2. Dr. Seligman reported a worsening condition, as the Applicant had a tender lumbosacral spine and her left leg was significantly weakened.

[15] Upon reviewing the General Division decision, I see that the member clearly noted Dr. Heller’s August 2009 report and his recommendation of physiotherapy. Paragraph 36 also references his opinion that the Applicant did not need surgical intervention, as well as other findings from the August 2009 report. Specifically, this paragraph notes Dr. Heller’s suggestion that the Applicant could return to modified duties after completing the physiotherapy program, with restrictions on heavy lifting and repetitive bending for six weeks, along with the need for sitting or standing as necessary.

[16] Dr. Seligman’s report was referenced in paragraph 37 of the decision, where the General Division noted that the Applicant had seen him only once and that there had been no reports or follow-ups from any physician, other than Dr. Lin’s reports. The General Division concluded that the conservative nature of the treatment suggested that the Applicant’s physical condition was not so severe as to preclude all work at the time of her MQP.

[17] With respect to Dr. Ahmed’s reports of ongoing treatment of the Applicant, the General Division explicitly referenced his opinions in paragraphs 39, 40, and 41 of the decision. In her submissions, the Applicant argues that Dr. Ahmed’s opinion that the Applicant is “totally disabled and [that] her present mental health is completely unsatisfactory” was not taken into account, nor were the Applicant’s sleep clinic reports, which suggest she suffers from significant depression and insomnia.

[18] The General Division member spends considerable time analyzing the information provided by Dr. Ahmed. In paragraph 39, the decision states that Dr. Ahmed believes the Applicant is totally disabled and distressed. Also, in paragraph 38, the General Division considers the results of her sleep testing, noting that she has chronic insomnia. However, the General Division weighs that information, and, in paragraph 41, notes the following:

At present Dr. Ahmed opined that she is totally disabled. The Minister points out that, in fact, the [Applicant] has improved with time therapy. Her GAF of 46 and 2011 has improved to moderate symptoms according to a GAF of 53 and 2016. Her mental state is essentially stable. As no hospitalizations, crisis intervention, involuntary admissions or impairment in reality has been reported, the severe criterion has not been satisfied as a December 2014 and on a continuously basis since [sic].

[19] Additionally, the Applicant argues in her submissions that the General Division member referred to a one‑page summary report (GD5-33) as the basis of his denial of benefits. However, it appears from the General Division decision that the member thoroughly reviewed the evidence on file. In paragraphs 35–46, he examines the evidence, including many doctors’ reports and opinions, weighs it, and draws conclusions. The General Division did not rely solely on one report.

[20] It appears that the submissions under this ground are an attempt to have me reassess and re‑weigh the evidence and come to a different conclusion.

[21] It is not my role to reassess the evidence; rather, my role is to determine whether the General Division decision is defensible on the facts and the law. If the Applicant is requesting that I reconsider and reassess the evidence and substitute my decision for that of the General Division in her favour, I am unable to do this.^{Footnote 4}

[22] Leave to appeal cannot be granted based on the fact that the Applicant disagrees with the weight that the General Division placed on evidence. This argument has no reasonable chance of success on appeal. Leave to appeal on this issue is refused.

Issue 2: Did the General Division err in law by failing to apply the Villani principles?

[23] In Villani, the Federal Court of Appeal explained that when assessing disability, the decision-maker must assess the individual’s personal characteristics, including age, education, language proficiency, and past work and life experience.^{Footnote 5}

[24] In her submissions, the Applicant argues that the General Division made an erroneous finding of fact when it considered her personal characteristics. However, the consideration of those characteristics is the test set out in Villani. If she is alleging that the required analysis was not conducted, then I believe the issue is properly characterized as a potential error of law.

[25] The Applicant submits that she has only a Grade 9 education and has difficulty speaking and writing proficiently in English. She also submits that she has difficulty using a computer, since her work experience has been mostly in the “labour intensive market.”

[26] The General Division summarized the Applicant’s personal characteristics at length in paragraphs 8, 9, 15, and 42. The General Division member turned his mind to the Villanifactors in paragraph 42 and conducted a meaningful assessment of those personal characteristics with respect to the test for disability, stating:

Severe criterion must be assessed in a real world context (Villani v. Canada (A.G.), 2001 FCA 248). This means that when deciding whether a person’s disability is severe, the Tribunal must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. The [Applicant] was only 33 years of age when she applied for a disability pension. She has only a grade 9 education and an almost complete inability to speak, read and write English. She has only a two-year work history working as an assistant at a fast food restaurant. The Tribunal is of the view that it is unlikely that she developed transferable skills from her work experience. Keeping in mind the [Applicant]’s personal circumstances, along with her medical condition the Tribunal has concluded that her personal circumstances would negatively impact on her ability to seek, and if necessary, retrain for part-time employment. However, the Tribunal found that the [Applicant] does have residual capacity for work and with attendance at English as a Second Language program and retraining for less physical work, she has a very good chance of being able to re-enter the workforce given her young age.

[27] I must determine whether this argument has a reasonable chance of success on appeal.

[28] The determination of employability within the context of the “real world” approach includes a consideration of an applicant’s particular circumstances and medical condition(s).  In this case, the General Division member did consider the Applicant’s particular circumstances and conditions. The member correctly summarized the Villaniprinciples and made clear findings with respect to the Applicant’s age, employment history, recent efforts to work (or lack thereof), education, and language proficiency.

[29] Leave to appeal is refused on this ground. The General Division noted the correct legal test and carried out the appropriate analysis. While the Applicant may disagree with the conclusion of this analysis, the General Division is the trier of fact and it is not the Appeal Division’s place to re-evaluate the evidence. This argument has no reasonable chance of success on appeal.

Conclusion

[30] The application for leave to appeal is refused.