Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] J. A. (Claimant), moved to Canada in 2000. He has a university‑level accounting degree from the Sudan and his first language is Arabic. He started working at a convenience store in 2002 and continued there until 2015, when he was a victim of an armed robbery at work. He pinned the perpetrator of the robbery down for 10 to 15 minutes until police arrived. The Claimant was terminated from his position the next day. He tried to work for several days in 2015 at another job but found it too physically difficult. He was later injured when he slipped on some stairs. Several months later, he applied for a disability pension under the Canada Pension Plan (CPP). He has degenerative disc disease; neck, shoulder, and lower back pain; depression; and anxiety.

[3] The Minister denied his application both initially and upon reconsideration. The General Division of this Tribunal denied his appeal in March 2017, finding that while he would likely not succeed at heavy physical work, the Claimant had the capacity to do more sedentary work with light physical demands. The General Division decided that the Claimant did not meet his obligation to show that efforts to obtain and maintain employment had been unsuccessful by reason of his health condition.

[4] The Appeal Division granted the Claimant leave to appeal the General Division’s decision because it was arguable that the General Division made an error in relying on evidence that came after the end of the minimum qualifying period (MQP) to make a determination about the severity of the Claimant’s disability on or before the end of the MQP.

[5] The Appeal Division now must decide whether the General Division made any errors under the Department of Employment and Social Development Act (DESDA). If any such errors exist, the Appeal Division must decide whether to give the decision that the General Division should have given, refer the case back to the General Division for reconsideration, or rescind or vary the General Division’s decision.

[6] In this case, the General Division did not make an error of law. The General Division outlined the available medical documents from the MQP in the evidence section of the decision. However, in light of the evidence that the General Division found persuasive about the change in the Claimant’s condition and treatment after the end of the MQP that showed a capacity for work, the General Division made a determination about the severity of the Claimant’s disability on or before the end of the MQP, as it was required to do.

[7] The Appeal Division dismisses the appeal.

Issue

[8] Did the General Division make an error of law by failing to focus the analysis on the evidence at the time of the Claimant’s MQP to determine whether the Claimant’s disability was severe?

Analysis

Appeal Division’s review of the General Division’s decision

[9] The Appeal Division does not provide an opportunity for the parties to re-argue their case in full at a new hearing. Instead, the Appeal Division conducts a review of the General Division’s decision to determine whether it contains errors. That review is based on the wording of the DESDA, which sets out the grounds of appeal for cases at the Appeal Division.

[10] The DESDA says that a factual error occurs when the General Division bases 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. For an appeal to succeed at the Appeal Division, the legislation requires that the finding of fact at issue from the General Division’s decision be material (“based its decision on”), incorrect (“erroneous”), and made in a perverse or capricious manner or without regard for the evidence.

[11] By contrast, the DESDA simply says that a legal error occurs when the General Division makes an error of law, whether or not the error appears on the face of the record.

Did the General Division make an error of law by failing to focus the analysis on the evidence at the time of the Claimant’s MQP to determine whether the Claimant’s disability was severe?

[12] The General Division did not make an error of law by failing to focus the analysis on evidence at the time of the MQP to determine whether the Claimant’s disability was severe. In this case, the General Division did review the medical evidence from the MQP in the evidence component of the decision, but said less about that evidence in the analysis component because of the Claimant’s evidence that suggested the disability (and its treatment) changed in 2016 and because there was a lack of additional evidence from 2016 and leading up to the hearing. The Appeal Division will not reweigh the available evidence––the General Division necessarily focussed on some evidence that came after the MQP because it was relevant to the question of the Claimant’s capacity to work at the time of the MQP.

[13] To be eligible for a CPP disability pension, a claimant must have a severe and prolonged disability on or before the end of the MQP. The MQP is calculated by the Minister based on the claimant’s contributions to the CPP. The main question at issue is the Claimant’s capacity for work on or before the end of the MQP.^{Footnote 1} Focussing on events after the end of the MQP instead of the medical evidence during the MQP can result in reasons that are insufficient.^{Footnote 2}

[14] The Claimant survived an armed robbery at work in January 2015 and was terminated the next day. The Claimant’s MQP ended on December 31, 2015.^{Footnote 3} The hearing at the General Division took place in March 2017. At that hearing, the Claimant argued that his overall ability to work had not changed since the end of his MQP. The General Division outlined the content of the medical evidence in the evidence section of the decision in some detail.^{Footnote 4} In its analysis, the General Division outlined some of the legal tests and then stated:

In reviewing the evidence, it becomes clear that the [Claimant] went through fairly extensive investigations and treatment in the year immediately following the robbery. This was entirely appropriate and he also made a brief return-to-work attempt shortly after the robbery. However, the nature and extent of the [Claimant’s] symptoms appears to change in 2016 and there is in fact no documentary medical evidence relating to the year immediately preceding the hearing.^{Footnote 5}

[15] The General Division also considered changes to the Claimant’s medical condition that occurred after the MQP (and before the hearing) in 2016 to determine that the Claimant retained capacity for “more sedentary work with light physical demands.”^{Footnote 6}

[16] The Minister argues^{Footnote 7} that the General Division provided a thorough review of both the pre-MQP and post-MQP medical evidence about the Claimant’s health conditions^{Footnote 8}, so the General Division’s decision did not turn on only a consideration of post-MQP evidence. The Minister argues that the post-MQP evidence was relevant to the severity analysis because it shows that the Claimant retains the capacity to work, because his mental health improved. The post-MQP evidence was within a year of the end of the Claimant’s MQP and was therefore relevant. The Minister argues that the decision was reasonable, relying on the Supreme Court of Canada’s warning against “cherry picking” certain phrases or words in a tribunal’s decisions rather than as “a line-by-line treasure hunt for error.”^{Footnote 9}

[17] The Claimant relies on the arguments he raised in his application for leave to appeal the General Division’s decision and did not to provide further argument after the Appeal Division released its decision granting leave to appeal. In his application for leave to appeal, the Claimant argues that he was seeing a mental health professional for a period of time, that his mental health issues did not resolve, and that he continues to struggle with these issues. He argues that the General Division did not explore this sufficiently with him during his hearing.

[18] The General Division did not make an error of law. The law requires an analysis that focusses on the claimant’s medical condition and personal circumstances during the MQP.^{Footnote 10} However, the General Division was entitled to consider the fact that the evidence about the Claimant’s medical condition seemed to change in 2016 and to consider that evidence when it decided whether the Claimant’s disability was not severe on or before the end of the MQP.

[19] The General Division focussed on the Claimant’s testimony about his condition at the time of the hearing to find that the Claimant’s “mental health concerns are no longer contributing in a significant way to his reported work limitations.”^{Footnote 11} Based on this evidence and on the Claimant’s testimony about sedentary work that he might be able to do and about his personal circumstances, the General Division concluded that the Claimant retained capacity to do more sedentary work with light physical demands.^{Footnote 12} The General Division concluded the Claimant had not shown that efforts to gain and maintain employment were unsuccessful by reason of his health condition. That evidence about the improvement in the Claimant’s mental health was relevant, and formed the basis for an analysis of the Claimant’s capacity for work on or before the end of the MQP.

[20] It was arguable that the General Division did not sufficiently analyze the evidence from the MQP in reaching its decision. It was also arguable that the General Division could have better explained or acknowledged that it was post-MQP evidence that allowed it to reach conclusions about the Claimant’s medical condition at the time of the MQP. However, on the balance of probabilities (which is a higher standard), it is not an error of law in this situation for the General Division to have focussed on that post-MQP evidence in reaching its decision. The evidence after the MQP showed change in the Claimant’s treatment and condition such that the General Division concluded that the Claimant did not have a severe and prolonged disability on or before the end of the MQP. The Appeal Division does not find a legal error in that approach, given the lack of evidence from 2016 and the Claimant’s own evidence about his capacity for sedentary work.

Conclusion

[21] The appeal is dismissed.