Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is allowed.

Overview

[2] The Appellant, V. C., a custodian, stopped working in September 2012 after sustaining a work-related injury to his right knee. He has not returned to work since then. The Appellant applied for a Canada Pension Plan disability pension, but the Respondent, the Minister of Employment and Social Development, turned down his application initially and upon reconsideration. He appealed the Respondent’s reconsideration decision to the General Division, but it too determined that he was ineligible for a Canada Pension Plan disability pension, as it found that his disability had not been “severe” by the end of his minimum qualifying period on December 31, 2015. The end of the minimum qualifying period is the latest date by which a claimant is required to be found disabled.

[3] The Appellant appeals the General Division’s decision on several grounds. I granted leave to appeal on the basis that the General Division may have failed to consider the reasonableness of the Appellant’s perceived non-compliance with certain treatment recommendations. For the purposes of the application for leave to appeal, I found it unnecessary to address whether the General Division based its decision on any erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it.^{Footnote 1} In the appeal before me, I must decide whether the General Division either erred in law or based its decision on any erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it.

Issues

[4] The issues before me are as follows:

1. Did the General Division err in law either by failing to assess the Appellant’s circumstances in a “real world context”
2. Did the General Division err in law by determining that he had failed to follow treatment recommendations?
3. Did the General Division base its decision on any erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it when it failed to refer to the family physician’s March 6, 2014 records?

Analysis

[5] 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:

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.

[6] The Appellant submits that the General Division erred under paragraphs 58(1)(b) and (c).

(a) Did the General Division fail to assess the Appellant’s circumstances in a “real world context?”

[7] The Appellant argues that the General Division erred in law when assessing whether his medical conditions rendered him disabled by failing to assess his circumstances in a “real world context” as required by Villani v. Canada (Attorney General)^{Footnote 2} and by failing to consider the principles referenced in Ronald v. Minister of Social Development.^{Footnote 3} The Appellant argues that Villani and Ronald require a decision-maker to consider an applicant’s disability and the “realities of workplaces in contemporary Canada.”

[8] In Villani,the Federal Court of Appeal stated that an assessment of an applicant’s circumstances “is a question of judgment with which this Court will be reluctant to interfere.” When I granted leave to appeal, I determined that, because the General Division took the Appellant’s personal circumstances into account, having relied in part on the vocational rehabilitation consultant’s transferable skills analysis,^{Footnote 4} there was no basis to find that the appeal would have a reasonable chance of success. I determined that the General Division had been mindful of the Appellant’s restrictions and his particular circumstances.

[9] The Appellant has not provided me with any further submissions on this issue that would cause me to reassess this matter.

(b) Did the General Division err by determining that the Appellant had failed to follow treatment recommendations?

[10] The Appellant submits that the General Division erred in law by finding at paragraphs 34 and 36 of its decision that he had failed to follow medical advice regarding weight loss. The General Division wrote that the Appellant had “not made a decent effort at trying to lose weight as suggested by his doctors” and that it was concerned that he had “not followed his doctors’ medical advice regarding treatment by losing weight.” He argues that the General Division misapprehended the legal test for failure to follow medical advice and did not properly apply it to the facts of the case.

[11] In July 2013, an orthopaedic surgeon considered the Appellant “far to [sic] overweight and too young to consider a total knee arthroplasty”^{Footnote 5} and, in May 2014, the same orthopaedic surgeon remained of the opinion that the Appellant needed to make a “major effort to try to lose some weight,” as he would then likely be a candidate for a total knee arthroplasty,^{Footnote 6} otherwise known as a total knee replacement. The clinical records indicate that the Appellant was in need of dietary counselling for weight loss.^{Footnote 7} The Appellant reported that he lost some weight and that he had seen a dietician.^{Footnote 8}

[12] The Appellant claims that he attempted to lose weight through dietary changes and by following a weight-loss program called Herbal Magic. He lost 10 pounds through this weight-loss program but discontinued the program because of financial constraints. He also notes that none of his healthcare providers provided any specific recommendations for weight loss, so he argues that it would be inappropriate to find that he failed to pursue other possible weight-loss measures.

[13] The General Division noted at paragraphs 20 and 32 of its decision that  the Appellant attempted to lose weight through Herbal Magic and that he stopped because it was too expensive.^{Footnote 9} And, because it would have required travelling, he was unable to meet with the consultant. The General Division noted the Appellant’s testimony that he stopped following the program not only due to financial considerations, but also because he found that, overall, “it was not really working anyway.”^{Footnote 10}

[14] The Appellant argues that the General Division failed to consider the reasonableness of his non-compliance with treatment recommendations. In this regard, the Appellant relies on Bulger,^{Footnote 11} where the Pension Appeals Board held that an applicant for a disability pension is obligated to abide by and submit to treatment recommendations and, if this is not done, to satisfy the Board as to the reasonableness of his or her non-compliance. The Appellant also relies on Lombardo,^{Footnote 12} in which the Pension Appeals Board determined that applicants were required to demonstrate a “good-faith preparedness to follow obviously appropriate medical advice.”

[15] The Appellant asserts that he demonstrated good faith in that he attempted to comply with doctors’ weight loss recommendations and stopped only when he could no longer afford treatment. The Appellant maintains that this constitutes a reasonable excuse to not follow recommended medical treatment.

[16] I granted leave to appeal because it was not readily apparent to me whether the General Division had fully considered the reasonableness of the Appellant’s perceived non-compliance with recommendations to lose weight, although it was clearly aware of his explanations. At paragraph 32, it noted that the Appellant testified that he tried to lose weight through the Herbal Magic program but “he only lost ten pounds and given that lack of success he stopped the program due to the financial difficulty it caused.”

[17] The Respondent concedes that the General Division erred in law by failing to assess the reasonableness of the Appellant’s explanation. However, the Respondent claims that it was altogether unnecessary for the General Division to undertake such an assessment. The Respondent argues that it was unnecessary because the General Division was unable to find any evidence to suggest that the Appellant’s condition was disabling or that he was medically unable to work^{Footnote 13} and because it found that the Appellant had failed to meet the requirements set out by the Federal Court of Appeal in Inclima v. Canada (Attorney General).^{Footnote 14} In regards to the second issue, the General Division found that the Appellant had not attempted to find alternate employment, including employment as a telephone solicitor or marketer.

[18] In response, the Appellant argues that the General Division’s error is nevertheless fatal to its overall decision, because his non-compliance with treatment recommendations is inextricably intertwined with its analyses on the issues of whether the Appellant was severely disabled and whether he had met the requirements under Inclima. The Appellant claims that the issue of his non-compliance with treatment recommendations is overarching, rather than an isolated and independent issue, and that it pervades and undermines all other findings made by the General Division. For instance, the General Division found that there was no medical evidence that the Appellant was medically unable to work. The Appellant argues that the General Division found that he was medically unable to work, that is, that he lacked the capacity regularly of pursuing any substantially gainful occupation, in part, because he had not pursued or continued treatment recommendations.

[19] From this perspective, I agree with the Appellant’s arguments that the issue of the Appellant’s non-compliance featured prominently in the General Division’s analysis on the severity of the Appellant’s disability. The General Division determined that weight loss and wearing an unloader (knee) brace were central to the Appellant’s prospects for any improvement to his knee pain. The General Division’s analysis on the severity of the Appellant’s disability focussed on whether he had complied with treatment recommendations and his response to those recommendations. For instance, the General Division wrote that it was unable to find any medical opinion that indicated the Appellant was medically unable to work, ostensibly from the viewpoint that the Appellant had not been compliant with treatment recommendations. The General Division immediately proceeded to summarize its findings regarding the Appellant’s lack of efforts to mitigate his conditions: it found that he had not made a decent effort at trying to lose weight, that he had stopped using his knee brace, and that he was not taking any medications to combat the pain from his knee.

[20] Furthermore, as the Federal Court of Appeal set out in Lalonde v. Canada (Minister of Human Resources Development), the “real world” context necessarily encompasses a consideration of whether any refusal to undergo treatment is unreasonable.^{Footnote 15} Therefore, by failing to assess the reasonableness of the Appellant’s non-compliance, the General Division failed to fully assess the severity of the Appellant’s disability.

[21] I should note that not only was the General Division required to assess the reasonableness of the Appellant’s non-compliance with treatment recommendations, but it was also required to consider what impact that refusal might have on the Appellant’s disability status, if the refusal was considered unreasonable.^{Footnote 16} Had there been no impact from non-compliance with treatment recommendations, it would have been irrelevant whether the Appellant had pursued any weight loss. Here, the medical evidence clearly indicated that weight loss would have some effect; after all, the orthopaedic surgeon was reluctant to proceed with total knee arthroplasty on the Appellant unless he lost weight. The fact that any refusal or non-compliance impacted the Appellant’s disability status should have served to amplify the need to assess the reasonableness of the Appellant’s non-compliance with treatment recommendations.

(c) Did the General Division base its decision on any erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it when it failed to refer to the family physician’s March 6, 2014 letter?

[22] The Appellant initially submitted that the General Division based its decision on several erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it.

[23] The Appellant submits that he provided ample evidence that he had little or no residual work capacity and could not work as a “telemarketer” or “telephone solicitor” as recommended in a skills assessment, because his chronic knee pain and obesity prevented him from performing any type of regular and predictable work. In particular, he notes that his own family physician stated in early March 2014 that he was “not fit to return to work in any capacity,” and certainly not fit to return to work as a custodian.^{Footnote 17} The Appellant clarified that this was the only evidence before the General Division that established that he had little or no residual work capacity. The Appellant also confirmed his position that the General Division had made just one erroneous finding of fact.

[24] The Appellant claims that the family physician was the primary treating physician and that his opinion deserved a place in the General Division’s analysis. He submits that the probative value of his family physician’s opinion was such that the General Division should have addressed it, rather than ignore it altogether, and that it should have explained why it preferred the transferable skills analysis report over the family physician’s letter dated March 6, 2014, to the Appellant’s disability insurer. The Appellant argues that the General Division erred when it failed to assess the probative value of the family physician’s letter and when it failed consider all of the medical evidence before it when deciding that he was not severely disabled. He submits that this situation was akin to the one in Wirachowsky v. Canada.^{Footnote 18}

[25] In Wirachowsky, the Federal Court of Appeal held that the Pension Appeals Board failed to consider the applicant’s orthopaedic surgeon’s opinion that the applicant should avoid jobs that involved prolonged, continuous sitting, and Dr. Chadwick’s opinion that the applicant could not maintain an upright posture for long periods of time. The Court decided that the Board’s conclusion that the applicant was capable of semi-sedentary work was untenable, in light of these two opinions.

[26] The Respondent counters that the Appellant’s family physician’s opinion lacked any probative value and was of limited utility in addressing the question of whether the Appellant had a severe and prolonged disability because it was prefaced by the statement, “at this time.” The Respondent argues, in other words, that the family physician failed to address the ultimate issue of whether the Appellant could be found severely disabled by the end of his minimum qualifying period.

[27] Finally, the Respondent submits that the Appeal Division does not have any jurisdiction to intervene on matters of mixed fact and law. In Quadir v. Canada (Attorney General),^{Footnote 19} the Federal Court of Appeal held that the application of settled principles to the facts is a question of mixed fact and law and is not an error of law, and that the Appeal Division has no jurisdiction to interfere with the General Division in such circumstances.

[28] I note that the Federal Court of appeal rendered two decisions after Quadir that address this issue. In Cameron v. Canada (Attorney General),^{Footnote 20} the Federal Court of Appeal held that mere disagreement with the application of settled principles to the facts of a case does not afford the Appeal Division the basis for intervention.

[29] And, in the more recent decision of Garvey v. Canada,^{Footnote 21} the Federal Court of Appeal held that, where an error of mixed fact and law committed by the General Division discloses an extricable legal issue, the Appeal Division may intervene under subsection 58(1) of the DESDA. While the Federal Court of Appeal stated that it was reasonable for the Appeal Division to have concluded that it was not entitled to reweigh the evidence before the General Division, the Court stated this in the context where the Appeal Division could not intervene, that is, when there was simply mere disagreement with the application of settled law to the facts.

[30] I find that this is not the situation facing me, as it is not a matter of merely disagreeing with the General Division’s assessment. While seemingly the family physician qualified his opinion by writing “at this time,” I must consider the broader context and determine whether “at this time” ultimately meant that the Appellant was “not fit to return to work in any capacity” at that particular time in March 2014, or whether he was unfit not only in March 2014 but continued to be so to the end of his minimum qualifying period and since then. After all, the Appellant may have been severely disabled in March 2014 but may have improved by December 31, 2015, such that he became capable regularly of pursuing any substantially gainful occupation.

[31] Given the Appellant’s assertions that his condition had not improved between March 2014 and December 31, 2015, this should have prompted the General Division to review the March 2014 opinion and to determine whether, in the overall context, the opinion could be supported by any other evidence.

[32] I note also that, upon reviewing the audio recording of the General Division hearing, the family physician’s March 6, 2014 letter to the disability insurer was the only medical record upon which the Appellant relied. The General Division was clearly aware of the Appellant’s reliance on the family physician’s letter; indeed, the member described the letter as the physician’s statement “that [the Appellant] was not employable.”^{Footnote 22}

[33] In short, yes, the General Division should have addressed the March 6, 2014 entry in the family physician’s clinical records, particularly as the Appellant was clearly relying on it to establish that he was severely disabled. This is not to suggest however that the family physician’s opinion of March 6, 2014 is necessarily definitive that the Appellant was severely disabled by the end of his minimum qualifying period. After all, the family physician’s opinion of March 6, 2014 would have to be corroborated by other medical evidence on file, as well as by the Appellant’s testimony.

[34] Additionally, the General Division should have either tried to reconcile the family physician’s opinion with the transferable skills analysis report of February 9, 2016, or explained why it preferred one opinion over the other.

[35] As a footnote, there may be one shortcoming with the transferable skills analysis. The Appellant testified that he is unable to sit for more than 25 to 30 minutes. I do not know if the Appellant had any issues with sitting tolerance at the end of his minimum qualifying period, but the transferable skills analysis does not appear to address the issue of the Appellant’s sitting tolerance.

Relief sought

[36] Where an error has arisen, section 59 of the DESDA empowers me to refer the matter to the General Division for a reconsideration or to render the decision that the General Division should have given in the first instance. The Appellant urges me to render the decision that the General Division should have given, provided that there is a sufficient evidentiary foundation to support the family physician’s opinion of March 6, 2014 that the Appellant is unfit to return to work in any capacity. The Respondent agrees that, if I should find that the General Division error is fatal to its overall decision, I should render the decision that should have been made.

[37] The General Division focused on the Appellant’s weight loss efforts, but, as the Respondent acknowledges, the General Division did not turn its mind to assessing whether these efforts had been reasonable.

[38] The Appellant’s primary medical complaint that impacts his capacity is the advanced osteoarthritis in his right knee. Recommendations for his knee have included physiotherapy, cortisone injections, analgesics, weight loss, arthroscopy and, eventually, a total knee replacement. His family physician indicated that he had not referred the Appellant to a rehabilitation program because one was not available locally. The Appellant resides in a small community with relatively few medical resources. Indeed, when he underwent an arthroscopy, he had to travel to Winnipeg, more than 300 km away.

[39] The Appellant testified about his compliance with recommendations for weight loss.^{Footnote 23} He had undergone arthroscopy and had been on a weight loss program until he found it not only too expensive to maintain but also futile, as he was not seeing any results. There had been discussion that he would be referred to a dietician for counselling. While there are no records from a dietician in the hearing file, the Appellant reported to his family physician that he saw one. He testified that he now makes careful dietary choices, although he finds that he is eating out more often as his knee pain makes it difficult for him to stand and cook.

[40] The Appellant testified that he also had cortisone injections, but he found only temporary relief. He had also tried wearing a knee brace but found that, after wearing it for two weeks, the pain returned. He stopped wearing the knee brace for a while, resumed wearing it again for another couple of weeks, but again met with ongoing pain. He then stopped wearing the knee brace for good.^{Footnote 24} It is unclear whether he consulted either his family physician or the orthopaedic surgeon about whether he should discontinue wearing the knee brace after two weeks of wear.

[41] The Appellant testified that he anticipates having knee replacement surgery at age 55 but will have to tolerate the pain until then. He testified that he uses Tylenol and ices his knee, although there was no indication as to the type of Tylenol or the frequency at which he takes it. The medical records suggest that the Appellant is not taking any prescribed medication for his pain however.

[42] Apart from surgery, there may be other treatment recommendations available to the Appellant that he has yet to exhaust or even pursue in the first instance. For instance, he had been referred to physiotherapy in January 2013 and again after his arthroscopy in December of that year. His family physician noted in his clinical records of March 5, 2014, that the Appellant had not been doing any physiotherapy, so he provided a requisition for physiotherapy.^{Footnote 25} In his March 6, 2014 letter, the family physician indicated that he had referred the Appellant for physiotherapy “to hopefully work on this.” He noted that the Appellant was experiencing quite a bit of pain and was having difficulty standing for prolonged periods. There is nothing in the hearing file to suggest that the Appellant underwent a course of physiotherapy and nothing to explain why he might not have had any physiotherapy.

[43] The Appellant has also been advised to become more active in an effort to lose weight. The Appellant testified that he tries to be as physically active as possible, although he can walk no more than three quarters of a block before his knee pain forces him to stop and rest. I note that one physician recommended that he do a low-impact stationary bike-type exercise. There is nothing in the hearing file to suggest that the Appellant pursued this type of exercise or anything to explain why the Appellant has not attempted the low-impact stationary bike-type exercise recommended to him in early 2013.

[44] The Appellant’s family physician prepared a report for the disability insurer in April 2013.^{Footnote 26} He was of the opinion that the Appellant could expect to see continued deterioration, as well as ongoing restrictions in his right knee, until the total knee replacement occurred. The orthopaedic surgeon was unprepared to proceed with an immediate total knee replacement because of the Appellant’s age and because he considered that the knee was “not bad enough to consider a total knee arthroplasty.”^{Footnote 27} Dr. Irving remained of the opinion that the “usual analgesics and anti-inflammatory medications would probably help.” In July 2013, Dr. Irving also stated that the Appellant would likely need to be on regular analgesics.^{Footnote 28} The General Division acknowledged that the Appellant was not taking any medication but did not ask him why he was not taking anything other than the occasional Tylenol, such as Arthrotec, which had been specifically mentioned, following the arthroscopy in December 2013.^{Footnote 29}

[45] When seen for a follow-up consultation on May 27, 2014, even the orthopaedic surgeon asked why the Appellant was not taking any medications for the arthritis in his right knee.^{Footnote 30} Dr. Irving wrote that he advised the Appellant to take Aleve twice daily and two tablets of Tylenol Arthritis three times a day. Yet, there is no indication why the Appellant did not heed these recommendations.

[46] Dr. Irving concluded in his May 2014 report that if the Appellant were to make a major effort to try to lose some weight, he “would likely be a candidate for a total knee arthroplasty in approximately 5 years (sic) time.” At that time, the Appellant was 45 years of age. The Appellant testified that he expected the arthroplasty to take place at age 55, although there is no accompanying medical documentation to explain why the surgery has been delayed, if it will even take place at all in the event that the Appellant is unable to lose any additional weight, and what risks or consequences he might face, regardless of whether the surgery proceeds.

[47] The Appellant’s medical visits in 2015 primarily related to other medical concerns, although he did complain of ongoing right knee pain. In a pre-operative physical in preparation for a medical procedure, the Appellant confirmed that he was not taking any prescriptive medications. He also reported that he was not exercising because he experienced shortness of breath and had knee pain. The General Division did not determine whether it was reasonable for the Appellant not to exercise because he experienced shortness of breath and knee pain.

[48] To assess whether the Appellant’s efforts to comply with treatment recommendations were reasonable, there must be a sufficient evidentiary foundation setting out the Appellant’s excuses for not pursuing the treatment. The General Division focused on the Appellant’s compliance with weight loss recommendations, but it did not examine whether he had complied with other treatment recommendations—such as undertaking a course of physiotherapy and taking analgesic medication—and whether any non-compliance with these other treatment recommendations was reasonable.

[49] The General Division should have examined why the Appellant had not been compliant so I would have the necessary evidentiary foundation to render a decision regarding the reasonableness of the Appellant’s seeming non-compliance with treatment recommendations. Because this examination did not take place, this matter should be returned to the General Division.

Conclusion

[50] The appeal is allowed and the matter referred to a different member of the General Division for a new hearing.