Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] The Applicant, G. S., was born in India and is a university graduate. He is now 45 years old. He immigrated to Canada in 2003 and began working as a taxicab driver. He was involved in a series of motor vehicle accidents that left him with increasing neck and back pain, prompting him to stop working in January 2016. He has since been diagnosed with chronic pain and depression.

[3] In April 2016, the Applicant applied for a disability pension under the Canada Pension Plan (CPP). The Respondent, the Minister of Employment and Social Development (Minister), refused the application on the ground that he had produced insufficient medical evidence that his disability was “severe and prolonged,” as defined by the CPP, as of the minimum qualifying period (MQP), which was to end December 31, 2017.

[4] The Applicant appealed the Minister’s refusal to the General Division of the Social Security Tribunal. The General Division conducted an in-person hearing and, in a decision dated July 10, 2018, found that the Applicant was, more likely than not, able to perform substantially gainful work as of the MQP. The General Division acknowledged that the Applicant experienced pain but found that he had not tried all available treatment options.

[5] On September 12, 2018, the Applicant requested leave to appeal from the Tribunal’s Appeal Division, alleging that the General Division’s decision contained the following errors:

• The General Division failed to appreciate the medical evidence in the “correct perspective.” In particular, the General Division drew a negative inference from the fact that the Applicant’s psychiatrists had nothing more to offer in terms of treatment. In doing so, the General Division failed to appreciate the wealth of evidence that the Applicant experiences mental health issues.
• The General Division erred in drawing a negative inference from the Applicant’s refusal to accept epidural injections. In finding that such treatment would likely benefit the Applicant, the General Division relied on mere assumption: a large body of credible medical evidence has shown that this type of intervention does not necessarily resolve chronic pain.
• The General Division erred in finding that the Applicant’s disability was not prolonged because he could “retrain for a sedentary job where he can alternate between a sitting and standing position.” In doing so, the General Division ignored the near-impossibility of finding a job in the real world that offered such precisely-tailored accommodations.

[6] Having reviewed the General Division’s decision against the underlying record, I have concluded that the Applicant has not advanced any grounds that would have a reasonable chance of success on appeal.

Issues

[7] According to s. 58 of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division: the General Division (i) failed to observe a principle of natural justice; (ii) erred in law; or (iii) based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. An appeal may be brought only if the Appeal Division grants leave to appeal,^{Footnote 1} but the Appeal Division must first be satisfied that the appeal has a reasonable chance of success.^{Footnote 2} The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.^{Footnote 3}

[8] I must determine whether the Applicant has raised an arguable case on the following questions:

1. Issue 1: Did the General Division err in how it assessed the Applicant’s psychiatric evidence?
2. Issue 2: Did the Division err when it drew a negative inference from the Applicant’s refusal to accept epidural injections?
3. Issue 3: Did the General Division err when it found that the Applicant could retrain for a sedentary job that would accommodate his pain?

Analysis

Issue 1: Did the General Division err in how it assessed the Applicant’s psychiatric evidence?

[9] The Applicant disagrees with the General Division’s analysis of reports from two psychiatrists, Dr. Timothy Holden and Dr. Cynthia Garrett. In paragraph 18 of its decision, the General Division wrote,

[Dr. Holden] did acknowledge the [Applicant] remained in persistent pain, and he continued to prescribe medication for his mental condition while stating “there is nothing left that a specific psychiatric approach will resolve.” In February 2017, Dr. Holden stated the [Applicant] had ·settled into a chronic pain syndrome related to and exacerbated by his ongoing ICBC claim. He did not think the [Applicant’s] condition would change until those issues were resolved, and he decided to see him less often “because we are really not doing anything new.”

[10] In paragraph 19, the General Division considered the progress notes of Mei Liu, a therapist working under Dr. Garrett’s supervision:

In late November, Ms. Liu noted the [Applicant] was having difficulty implementing the relaxation strategies she suggested; and it appears the therapy ended shortly after that because the [Applicant] had made no progress. The [Applicant] submitted that this and Dr. Holden’s comments suggest that psychiatric intervention will not help him.

[11] I can confirm that the General Division accurately relayed the contents of the psychiatric reports in question. The Applicant suggests that the General Division drew the wrong conclusion from the fact that both Dr. Holden and Dr. Garrett essentially gave up on treating him: their respective withdrawals were not evidence of a transient impairment, as the General Division found, but of its opposite—an intractable and therefore prolonged disability. Can the General Division’s interpretation of the psychiatric evidence be categorized as an error under s. 58(1)(c) of the DESDA?

[12] I do not see an arguable case that it can be. As the General Division noted, Dr. Holden concluded that situational factors, such as financial pressure and the Applicant’s ongoing automobile insurance claim, were making the Applicant’s depression worse: “[T]his is NOT a medical issue—nothing I can do from the office to fix his financial situation […]. Too much medicalisation of a social problem. Antidepressant meds will not provide the money he needs.”^{Footnote 4} The following year, Ms. Liu advised the Applicant to seek counselling through his automobile insurer. To the General Division, this did not suggest a condition resistant to all treatment, only a mismatch between therapist and patient. The fact that the Applicant’s family physician had not seen fit to refer him to another psychiatrist was yet another indication for the General Division that the Applicant’s mental health condition fell short of severe and prolonged.

[13] What the reports have in common is a sense of frustration, on the part of his treatment providers, that the Applicant fixated on externalities, rather than taking concrete steps to get better. In this context, I see no error in the General Division’s findings, much less one that was perverse, capricious, or without regard for the material before it. Indeed, nothing in the General Division’s analysis strikes me as illogical or unreasonable. A trier of fact is entitled to weigh the evidence as it sees fit, so long as it draws defensible conclusions from it;^{Footnote 5} in this instance, I see no reason to interfere with the General Division’s findings.

Issue 2: Did the Division err when it drew a negative inference from the Applicant’s refusal to accept epidural injections?

[14] The Applicant alleges that the General Division erred in assuming that his accepting epidural injections would necessarily produce a benefit.

[15] I do not see an arguable case on this point. In drawing a negative inference from what it found was the Applicant’s refusal to follow reasonable treatment advice, the General Division was adhering, consciously or not, to a line of cases led by Lalonde v. Canada.^{Footnote 6} The Applicant seems to be arguing that his reluctance to submit to the injections was reasonable because there is no evidence that they always resolve chronic pain.

[16] There are two problems with this submission. First, it was open to the Applicant to introduce evidence before the General Division that injections are not always effective. If he did so, the General Division presumably gave it due consideration;^{Footnote 7} if he did not do so, then the General Division cannot be blamed for failing to consider such evidence. Either way, the Appeal Division cannot now consider evidence—whether old or new—on its merits.

[17] Second, even though the General Division drew a negative inference from the Applicant’s refusal to follow treatment recommendations, its decision to do so was not based on speculation but on the evidence before it. As the General Division noted in paragraph 15 of its decision, Dr. Mutat repeatedly discussed epidural injections with the Applicant and, although the Applicant initially gave verbal consent to proceed with them, he ultimately backed away. According to the Applicant, Dr. Mutat told him that the injections would bring him no more than a few months of relief and might make his condition worse. However, the General Division was not inclined to believe this account:

The only evidence that epidural injections will not help the [Applicant] is his own recollection that Dr. Mutat told him so. Although I believe the [Applicant] honestly understood this to be Dr. Mutat’s opinion, I do not think Dr. Mutat actually said this. It is certainly not evident from any of his written reports. This treatment is widely used, and it is unlikely Dr. Mutat would have suggested it if he did not think the [Applicant] would benefit from it.^{Footnote 8}

[18] Although the Applicant disagrees with the General Division’s assessment of the evidence on this issue, I do not see anything that might be categorized as an error under s. 58(1) of the DESDA. There is no reason to second-guess the General Division where it has offered intelligible and defensible reasons for finding that the Applicant did not take all reasonable steps to get better.

Issue 3: Did the General Division err when it found that the Applicant could retrain for a sedentary job that would accommodate his pain?

[19] The Applicant takes issue with the following statement in paragraph 14 of the General Division’s decision:

However, there are other treatments available to [the Applicant] that he has not tried fully, or at all. He is relatively young and well-educated. If treatment is successful, he may be in a position to either return to his previous job as a taxi driver; or to upgrade his English skills and retrain for a sedentary job where he can alternate between a sitting and standing position. Therefore, I am not satisfied that his condition is likely to be long-continued.

[20] The Applicant denies that there is any job that he can do with his physical limitations, but I cannot see an arguable case for this submission. Again, the Applicant may find the General Division unreasonable, but that is not a permissible ground of appeal. The Applicant has otherwise not identified a specific factual or legal error in the General Division’s analysis, nor has he explained how it violated a principle of natural justice.

[21] As I have already noted, the General Division’s decision rests on an unimpeachable finding that the Applicant left a potential avenue of recovery unexplored. The General Division reasoned that there might be an opportunity for the Applicant to retrain if the recommended epidural injections worked as promised. The Applicant is now, in effect, asking me to reassess the evidence and substitute my judgment on this question for the General Division’s. I am unable to do so because my authority as an Appeal Division member allows me to determine only whether any of an applicant’s reasons for appealing fall within the grounds specified under s. 58(1) of the DESDA and whether any of them have a reasonable chance of success.

Conclusion

[22] Because the Applicant has not identified any grounds of appeal that would have a reasonable chance of success on appeal, the application for leave to appeal is refused.