Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is allowed, and the Appellant is entitled to a disability pension under the terms of the Canada Pension Plan (CPP).

Overview

[2] The Appellant, R. D., was working as a screening officer at a small airport when, in September 2011, she had a fall at work. Following the accident, the Appellant made several attempts at returning to work, but her last attempt ended in September 2013. In July 2015, the Appellant applied for a disability pension under the CPP, saying that she was unable to work because of the pain in her back, knees, and right ankle, along with depression, and impaired sleep. Among her many functional impairments, the Appellant said that she was unable to sit, stand, or walk for long periods.^{Footnote 1}

[3] The Respondent, the Minister of Employment and Social Development, refused the Appellant’s application for a disability pension at both the initial and reconsideration levels. Later, the Tribunal’s General Division dismissed an appeal from the Minister’s decision. I granted leave to appeal, however, based on a concern that the General Division might have overlooked important medical documents when making its decision.

Preliminary matters

[5] In the course of the hearing before me, the Appellant’s representative wanted to point out weaknesses in a Job Specific / General Work Capacity Evaluation conducted by Megan McLaughlin, an occupational therapist at WorkSafeNB, the New Brunswick Crown corporation that (among other things) rehabilitates workers and provides them with compensation when they suffer workplace injuries.^{Footnote 2} The Minister’s representative objected to this submission, saying that it was a new ground of appeal and should not be raised for the first time at the Appeal Division hearing.

[6] The Appellant’s representative clarified that he did not intend to raise a new ground of appeal, but felt that it was nevertheless important to make his points, should I be in a position to reweigh the evidence.

[7] I refused to listen to the argument of the Appellant’s representative while the parties were discussing the alleged grounds of appeal. However, I agreed to listen to his argument once the subject had turned to a discussion of my remedial powers. In particular, the Appellant’s representative seemed to agree that his argument would only become relevant if I first found that the General Division had committed an error justifying my intervention and that I should exercise my powers to give the decision that the General Division should have given. Only then could I engage in a reweighing of the evidence around the Appellant’s capacity to work.

[8] The Minister’s representative responded to the Appellant’s submissions at the hearing, but I also granted her request to provide an additional written response within two weeks of the hearing.^{Footnote 3}

Issues

[9] In reaching this decision, I focused on the following questions:

1. Did the General Division base its decision on an erroneous finding of fact when it concluded that the reports from the Appellant’s family physician had never ruled out the possibility that the Appellant was capable of doing sedentary work?
2. What is the appropriate remedy based on the facts of this case?
3. Is the Appellant entitled to a CPP disability pension?

Analysis

The Appeal Division’s Legal Framework

[10] To succeed at the Appeal Division, the Appellant must show that the General Division committed at least one of the recognized errors (or grounds of appeal) set out in section 58(1) of the Department of Employment and Social Development Act (DESD Act). In this case, the only ground of appeal alleged is that 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.

[11] When considering the degree of scrutiny with which I should review the General Division decision, I have focused on the language set out in the DESD Act.^{Footnote 4} More specifically, section 58(1)(c) of the DESD Act states that not all erroneous findings of fact will justify my intervention. Rather, for an erroneous finding of fact to justify my intervention, the General Division decision must be based on that finding, and the General Division must have made the finding in a perverse or capricious manner or without regard for the material before it. The Federal Court of Appeal recently characterized erroneous findings of fact as ones that squarely contradict or are unsupported by the evidence.^{Footnote 5}

Issue 1: Did the General Division base its decision on an erroneous finding of fact?

[12] Yes, the General Division based its decision on erroneous findings of fact as described in section 58(1)(c) of the DESD Act.

[13] To be entitled to a CPP disability pension, the Appellant had to show that she had a severe and prolonged disability on or before December 31, 2016, the end of her minimum qualifying period (MQP).^{Footnote 6} Under the CPP, a disability is severe if the claimant is incapable regularly of pursuing any substantially gainful occupation. And a disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.

[14] In this case, the General Division decided that the Appellant’s disability was not severe. Rather, it concluded that she was capable of doing a full day’s work and of performing sedentary tasks. In reaching this conclusion, the General Division wrote the following in paragraph 41:

However, neither Dr. Maltais [the Appellant’s family physician] nor Dr. Hatheway [a medical advisor at WorkSafeNB] indicated in their reports that the Appellant was not able to perform sedentary tasks. The Tribunal put weight on all the other medical and evaluation reports indicating that the Appellant showed capacity to perform sedentary work.

[15] The Appellant claimed in her submission that this paragraph contains an erroneous finding of fact because the General Division overlooked:

1. Dr. Maltais’ report dated June 5, 2014, in which she described the Appellant’s functional limitations, investigations, and treatments and then wrote that, in her medical opinion, the Appellant is no longer able to occupy any type of employment;^{Footnote 7}
2. Dr. Maltais’ medical report dated May 26, 2015, in which she noted the Appellant’s attempts at returning to work and then declared that the Appellant is incapable of functioning at work, including sedentary work, because of intense pain radiating into her lower limbs;^{Footnote 8} and
3. Dr. Daigle‑Sippley’s medical certificate dated February 18, 2015, in which she wrote that the Applicant “has chronic back pain, she is unable to work, she can only walk short distances, she is unable to sit for very long, getting dressed is very difficult, especially socks, she requires equipment to wipe herself when she goes to the bathroom, she has a very hard time washing herself, getting out of bed is very difficult.”^{Footnote 9}

[16] In response, the Minister argues that the Appellant is essentially asking me to reweigh the evidence, which is something that I should not do. In this respect, the Minister underlines the high threshold that must be met before erroneous findings of fact can justify the Appeal Division’s intervention.^{Footnote 10}

[17] The Minister also emphasizes that the General Division did not have to refer to every piece of evidence in its decision.^{Footnote 11} Rather, the Minister submits that the General Division’s reasons more than adequately explain the basis for its decision, particularly when read in light of the evidence and the law. And while the Minister acknowledges the opinions of Drs. Maltais and Daigle-Sippley, it maintains that a majority of medical assessors concluded that the Appellant had the capacity to perform sedentary work.

[18] The Appellant’s ability to do sedentary work was central to the General Division’s conclusion that she was ineligible for a CPP disability pension. Yet on this key topic, the General Division does not seem to have grasped that there was contradictory evidence from the Appellant’s family physician. In my view, the finding of fact in paragraph 41 of the General Division decision is plainly wrong and is squarely contradicted by the evidence: Dr. Maltais twice said that the Appellant is incapable of doing any work, including sedentary work.

[19] The medical certificate signed by Dr. Daigle-Sippley is somewhat different in that the General Division made no mention of it whatsoever. However, the General Division decision can also be characterized as capricious because it failed to provide any reasons for dismissing important evidence that contradicted its conclusion concerning the Appellant’s residual capacity to work.^{Footnote 12}

[20] In my view, therefore, the General Division based its decision on erroneous findings of fact as described in section 58(1)(c) of the DESD Act. As a result, my intervention in this case is warranted.

Issue 2: What is the appropriate remedy based on the facts of this case?

[21] I have concluded that this is an appropriate case in which to give the decision that the General Division should have given.

[22] The remedies available to me are set out under section 59(1) of the DESD Act. Among the available options, the parties debated whether I should send the matter back to the General Division for reconsideration or give the decision that the General Division should have given.

[23] On the one hand, the Appellant’s representative argued that, in cases where an error has been found, the appeal should normally be sent back to the General Division for reconsideration. However, the Appellant’s representative said that special circumstances might exist in this case that would justify exercising my power to give the decision that the General Division should have given. In particular, over three years have already passed since the Appellant submitted her application for a CPP disability pension.

[24] The Minister, on the other hand, argued that, even if the General Division did commit an error, the Appellant remains ineligible for a CPP disability pension. More specifically, the Minister submitted that the Appellant had an obligation to try and find sedentary work, but she failed to do so.^{Footnote 13} Alternatively, however, if the General Division’s error requires a reweighing of the evidence, then the Minister submits that the matter should be sent back to the General Division, since it specializes in the weighing and assessing of evidence.^{Footnote 14}

[25] While the Appeal Division’s remedial role should focus on the best and most efficient way of correcting the errors that it has identified, the error in this case relates to a very central question on which there is significant contradictory evidence (namely, whether the Appellant retained the capacity to do sedentary work). As a result, I recognize that correcting the General Division’s error will involve reweighing the evidence.

[26] Nevertheless, I have decided that this is an appropriate case in which to give the decision that the General Division should have given because:

1. the Appellant applied for a CPP disability pension, which is intended to help people who are unable to work because of a serious medical condition;
2. her application was submitted under an administrative regime that is intended to provide quick determinations;^{Footnote 15}
3. the power to determine whether a benefit is payable to a person is given to the entire Tribunal and not just to one of the Tribunal’s particular divisions;^{Footnote 16} and
4. doing so promotes the goals of expedient and cost-efficient decision making and is supported by sections 2 and 3(1)(a) of the Social Security Tribunal Regulations.

[27] It is also worth highlighting that both parties agree that the evidentiary record before me is complete, and both have filed extensive submissions—at both the General and Appeal Divisions—explaining why the Appellant is or is not entitled to a CPP disability pension. I have also listened to the audio recording of the General Division hearing. As a result, I see little benefit in sending the appeal back to the General Division for yet another member to review the file. Indeed, doing so would create a risk of the file returning to the Appeal Division yet again.

[28] Giving the decision that the General Division should have given means that I must now assess whether the Appellant is entitled to a CPP disability pension.

Issue 3: Is the Appellant entitled to a CPP disability pension?

[29] In my view, the Appellant has proven her entitlement to a CPP disability pension.

[30] As already mentioned, to be entitled to a CPP disability pension, the Appellant has to show that she had a severe and prolonged disability on or before December 31, 2016. I have started my analysis by considering whether the Appellant’s disability was severe, meaning that she was incapable regularly of pursuing any substantially gainful occupation.

[31] When assessing whether claimants have a severe disability, the Tribunal applies a number of guiding principles that were established in previous court decisions.

[32] For example, the severity requirement must be assessed in a real-world context.^{Footnote 17} This means that, when deciding whether a disability is severe, I must consider the claimant’s medical condition in its totality and keep in mind factors such as age, level of education, language proficiency, and past work and life experience.^{Footnote 18} The question is not whether claimants are incapable of performing their regular or preferred occupation but whether they are incapable of performing any substantially gainful occupation that is suitable to their condition.^{Footnote 19}

[33] When assessing severity, I also focus less on whether claimants have been diagnosed with a particular medical condition and more on how that medical condition affects their capacity to work.^{Footnote 20} To succeed, an appellant must provide some objective medical evidence of their disability; however, Tribunal members must give due consideration and weight to the whole of the evidence, both written and oral.^{Footnote 21}

[34] As mentioned above, the central issue in this case is whether the Appellant retained the capacity to do sedentary work after her fall in September 2011. Indeed, the evidence showed that the Appellant fell at work in May and again in September 2011. At the time of the second fall, the Appellant hurt her ankles, knees, and back, along with her right arm and foot. The effects of those falls, she says, have been life-changing and long-lasting.^{Footnote 22}

[35] In the questionnaire submitted as part of her application for CPP disability benefits, the Appellant listed numerous functional limitations, including that the pain in her back and knees prevents her from sitting, standing, and walking for prolonged periods.^{Footnote 23} In the questionnaire, the Appellant also wrote that pain interferes with her ability to remember, concentrate, and sleep.

[36] At the General Division hearing, which was roughly 10 months after the end of her MQP, the Appellant said that she rarely left the house and had to constantly alternate between sitting, standing, and lying down. She had trouble washing and getting dressed. She bought a new car but has barely used it. In contrast with the activities that she did before September 2011, the Appellant reported that she now does only the slightest of household chores. Her inability to sit and stand for prolonged periods has also meant that she had to give up numerous hobbies, such as reading, knitting, crocheting, baking, and chatting with friends on the computer.^{Footnote 24} The Appellant became quite emotional at the hearing when she described the ways in which her pain has interfered with her relationship with her grandchildren.^{Footnote 25} She said that this caused her to have a “nervous breakdown” in 2014.

[37] During the hearing, the Appellant also described her symptoms as being very unpredictable, meaning that she would be an unreliable worker.^{Footnote 26} In particular, she said that her back pain “flares up” from time to time. During these flare-ups, the Appellant testified that her pain becomes so excruciating that she has no choice but to stay in bed, take strong medications, and wait until the flare-up passes. These flare-ups, she reported, can happen several times in a month and last from days to weeks. In addition, they can be brought on by something as simple as a cough, an improper movement, or a misstep.

[38] In giving her testimony, the Appellant had trouble remembering dates, something she freely admitted. Like the General Division, however, I see no reason to cast any doubt over her credibility on key issues relating to her symptoms and functional limitations. As a result, her oral evidence, which went unchallenged at the hearing, is entitled to due weight and consideration.

[39] As described above, the Appellant’s application for a CPP disability pension was supported by her family physician, Dr. Maltais. More specifically, Dr. Maltais wrote that the Appellant was unable to function at any job, including sedentary work, due to her chronic pain, functional limitations, and depression.^{Footnote 27}

[40] Nevertheless, the Minister relies on the Federal Court of Appeal’s decision in Inclima v Canada (Attorney General) to argue that the Appellant remains ineligible for a CPP disability pension.^{Footnote 28} More specifically, the Federal Court of Appeal wrote in that case that, when there is evidence that claimants retain some work capacity, they must show that efforts at obtaining and maintaining employment have been unsuccessful because of their health condition. In this case, the Minister maintains that the Appellant retained the capacity to do sedentary work, but that her attempts to find alternative work were insufficient and unsuccessful for reasons unrelated to her health condition.

[41] In support of its position, the Minister relies on several medical reports—such as those written by Dr. Fawaz,^{Footnote 29} Dr. Desmond,^{Footnote 30} and Canadian Health Solutions^{Footnote 31}—in which the authors concluded that the Appellant’s symptoms could not be objectively explained and that she should be capable of returning to her previous job or of doing sedentary work. The authors of the Canadian Health Solutions report concluded that there was “no medical contraindication to [the Appellant] participating in a vocational program and return to work at the sedentary level.”^{Footnote 32} These reports were written between September 2012 and October 2014.

[42] With respect to an ability to do sedentary work, the Minister (and the General Division) also highlighted a WorkSafeNB medical discharge report from January 2012,^{Footnote 33} occupational therapy reports from September 2012^{Footnote 34} and August 2013,^{Footnote 35} and, perhaps most importantly, the Job Specific / General Work Capacity Evaluation conducted by Megan McLaughlin in October 2013.^{Footnote 36}

[43] In my view, the Minister’s argument in this case risks elevating the Court’s decision in Inclima to the level of a statutory requirement, which it is not. Rather, as one of my colleagues recently wrote, Inclima must be situated within the statutory requirements set out in section 42(2)(a) of the CPP and in relation to the fact that claimants have the obligation of proving their entitlement to a disability pension.^{Footnote 37}

[44] When viewed through this lens, my colleague interpreted Inclima to say that, when there is evidence of work capacity, claimants can rely on evidence showing that their efforts to obtain and maintain employment were unsuccessful because of their health problems to provide an evidentiary basis in support of their entitlement to a CPP disability pension. In simpler terms, what do the Appellant’s employment efforts tell us about whether she had the capacity to regularly pursue any substantially gainful occupation? Like in D’Errico v Canada (Attorney General), this is a case in which I can consider the Appellant’s disability, her personal circumstances, and employment efforts collectively to assess her entitlement to a CPP disability pension.^{Footnote 38}

[45] In my view, Dr. Maltais’ opinion concerning the Appellant’s ability to work is entitled to considerable weight. As a treating family physician in whom the Appellant confides, she is best placed to assess the Appellant’s condition in its totality. In addition, her medical report from May 2015 is more recent than the ones on which the Minister relies, but it is still dated before the end of the Appellant’s MQP.

[46] The complexity of the Appellant’s state of health is specifically highlighted in the Canadian Health Solutions report, where 14 medical conditions were identified as contributing to the Appellant’s overall health and functional limitations. More specifically, the Canadian Health Solutions report noted important psychosocial factors, biomechanical factors, and other medical conditions, such as degenerative spinal disease, that present important barriers to the Appellant’s return to work. Indeed, the psychosocial aspect of the Appellant’s case was found to be very significant, and it was noted that the Appellant had a history of depression dating back to 2010. Unlike what the authors of the Canadian Health Solutions report were tasked with doing, however, I do not need to separate the Appellant’s various conditions into those that are work-related and those that are not.

[47] Although the authors of the Canadian Health Solutions report concluded that there was no medical contraindication to the Appellant returning to work at the sedentary level, that conclusion is, in my view, a far cry from being equivalent to saying that the Appellant has the capacity to regularly pursue a substantially gainful occupation. That is especially true in a case such as this one, where a number of the Appellant’s symptoms cannot be objectively explained, but are nevertheless significant.

[48] I also find that many or all of the medical reports relied on by the Minister were contradicted by the Appellant’s actual attempts at returning to work, which will be discussed further below.

[49] In my view, a bigger obstacle to the Appellant’s entitlement to a CPP disability pension is Ms. McLaughlin’s conclusion that the Appellant had “demonstrated the ability to perform full days of general work activities meeting the demands of the sedentary physical demand level.”^{Footnote 39}

[50] I note, however, that the courts have expressed caution when reference is made to vague work categories, such as sedentary or semi-sedentary work, and that such expressions may be of little use when assessing severity under the terms of the CPP.^{Footnote 40} In Wirachowsky v Canada, for example, a case that has many similarities to this one, the Federal Court of Appeal considered the claimant’s inability to sit and stand for long periods and said that it was an error to conclude that the claimant was capable of doing semi-sedentary work.^{Footnote 41} For the following reasons, such caution is especially warranted in the case of Ms. McLaughlin’s report.

[51] Ms. McLaughlin’s conclusion was based on a two-day assessment that she carried out in late October 2013. Given the Appellant’s difficulties returning to her old job, Ms. McLaughlin was asked to assess the Appellant’s functional abilities more generally and whether she could meet the demands of working as a customer service representative more specifically.

[52] In the end, Ms. McLaughlin concluded that the Appellant was unable to work as a customer service representative because that job profile required constant sitting.^{Footnote 42} Rather, the Appellant sat for 110 minutes of the 229-minute evaluation day but could only sustain a seated position for 34 minutes, with four “micro breaks” in which she stood for up to one minute. In addition, the Appellant’s sitting tolerance was reduced on the second day of the assessment.

[53] As for standing, something that was not considered to be a requirement of working as a customer service representative, Ms. McLaughlin observed the Appellant stand for 119 minutes of the evaluation day but could only sustain standing in a static position for 35 minutes, with four seated “micro breaks”, and could remain standing in a dynamic position for 45 minutes, with five “micro breaks”.^{Footnote 43}

[54] These observations, especially the Appellant’s inability to sit for prolonged periods, do not obviously support Ms. McLaughlin’s conclusion that the Appellant could work full-time hours at a sedentary occupation. Indeed, her report contains this important remark:^{Footnote 44}

[The Appellant] performed best when given the opportunity to alternate between sitting and on feet activity. [The Appellant] was observed to have very limited postural tolerances both on feet and in a seated position, frequent positional changes were observed throughout both evaluation days.

[55] Overall, I have concluded that Ms. McLaughlin’s report is entitled to little or no weight. Like in Wirachowsky, this report is far removed from the assessment that must be made under the CPP. In addition, the value of Ms. McLaughlin’s report fares poorly in the face of the Appellant’s oral evidence—in which she described the unpredictability of her symptoms and stated that she was in bed for weeks following the assessment^{Footnote 45}—and her actual efforts to return to work.

[56] On the subject of the Appellant’s return to work, I would emphasize the following favourable conditions:

1. The Appellant worked as a screening officer at a small airport that had just two departing flights per day, so the airport was only busy for about an hour in the morning and an hour in the afternoon.^{Footnote 46} The job involved a variety of different tasks, though the Appellant testified that none of them were difficult. Rotating through these different tasks also gave the Appellant the opportunity to alternate between sitting and standing.
2. The Appellant made three attempts at returning to work, and she attended an interdisciplinary rehabilitation program offered by WorkSafeNB before her first and third attempts.^{Footnote 47}
3. The Appellant’s second and third attempts at returning to work were supervised by an occupational therapist, and she worked for a very accommodating employer.^{Footnote 48} For example, she was allowed to gradually increase her hours of work, and she was only required to do the tasks of her job that she was capable of doing.^{Footnote 49} In addition, the Appellant was required to go through recertification, so her employer allowed her to take time during work hours to complete the necessary readings and online modules.

[57] In my view, it is difficult to imagine a role better suited to the Appellant’s limitations: the work was very light and allowed the Appellant to alternate between sitting and standing positions. As a result, the fact that the Appellant was unable to successfully return to work under these conditions is persuasive evidence that her various conditions, when taken cumulatively, are such that she is incapable regularly of performing any substantially gainful occupation.

[58] To this I would add that the Appellant’s employability is also negatively affected by the unpredictability of her symptoms and by some of her personal characteristics. For example, the Appellant was 57 years old at the end of her MQP, and her work experience is limited to working in the hotel industry and in airport security. When considered together with her functional limitations, these factors do not point to someone who could easily retrain to do sedentary work.

[59] For all of these reasons, I have concluded that the Appellant’s disability is severe within the meaning of the CPP.

[60] On the question of whether the Appellant disability is also prolonged, I note Dr. Maltais’ medical report from May 2015 in which she underlined that the Appellant’s back pain has persisted since 2011, meaning that her prognosis is less favourable and that her disability is likely to be long-term.^{Footnote 50} Dr. Daigle-Sippley also indicated that the Appellant’s condition was unlikely to improve.^{Footnote 51}

[61] I would also underscore the fact that the Appellant has twice participated in interdisciplinary rehabilitation programs offered by WorkSafeNB, has participated in various treatments recommended by Dr. Maltais, and has benefited from lengthy breaks from work. Despite these efforts, the Appellant’s condition has shown little improvement.^{Footnote 52} Indeed, the combination of pain and depression from which the Appellant suffers has even worsened at times.

[62] I find therefore that the Appellant’s disability is long continued and likely to continue for an indefinite period.

[63] As a result, the Appellant has had a severe and prolonged disability since she fell at work in September 2011 and is entitled to a CPP disability pension.

[64] By law, a person cannot be deemed disabled more than fifteen months before the Minister received the application for a disability pension.^{Footnote 53} Since the Appellant’s application was received by the Minister in July 2015, she is deemed to have been disabled in April 2014.

[65] According to section 69 of the CPP, payments then start four months after the deemed date of disability. In this case, payments will start as of August 2014.

Conclusion

[66] I concluded that the General Division based its decision on an erroneous finding of fact, as set out under section 58(1)(c) of the DESD Act. In particular, the General Division overlooked reports written by Dr. Maltais in which she indicated that the Appellant was unable to do any work, including work of a sedentary nature. I also concluded that this was an appropriate case in which to give the decision that the General Division should have given.

[67] Because the evidence that was overlooked concerned the Appellant’s capacity to work, I weighed Dr. Maltais’ reports against the other evidence in the file on this issue. In my view, these reports corroborate the Appellant’s evidence and are entitled to significant weight. In the end, therefore, I decided that the Appellant had proven her entitlement to a CPP disability pension, starting in August 2014.

[68] The appeal is allowed.