Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is allowed and the Appellant is entitled to a disability pension.

Overview

[2] The Appellant, B. K., applied for a disability pension under the Canada Pension Plan (CPP), saying that she was unable to continue working as an executive chef because of pain in her legs, knees, and back, along with an inability to walk, stand, or sit for prolonged periods. She stopped working in June 2010 and has not returned to work since.

[3] The Respondent, the Minister of Employment and Social Development (Minister), denied the Appellant’s application for a disability pension initially and on reconsideration. The Appellant appealed the Minister’s reconsideration decision to the Tribunal’s General Division, but it dismissed her appeal. She then brought an application asking the General Division to rescind or amend its initial decision, but that application was also dismissed.

[4] This appeal concerns only the General Division’s initial decision dated July 25, 2016. I granted the Appellant’s request for permission to appeal that decision based on a concern that the General Division might have misinterpreted the opinion of the Appellant’s family physician.

[5] I have now concluded that the General Division based its decision on an erroneous finding of fact and that I should give the decision that the General Division should have given. In my view, the Appellant has proven that she is entitled to a CPP disability pension.

Preliminary matters

[6] The hearing of this appeal was conducted by teleconference, but the Minister’s representative did not appear at the scheduled time. After satisfying myself that the Notice of Hearing had been successfully delivered to the Minister, I decided to continue with the hearing.^{Footnote 1} The next day, the Minister’s representative wrote to the Tribunal explaining that he had failed to attend the hearing because he miscalculated the time difference between Eastern and Atlantic Time.

[7] So that he could present his case more fully, the Minister’s representative asked that he be provided with the audio recording of the Appeal Division hearing and an opportunity to provide additional written submissions.^{Footnote 2} For reasons set out in a letter dated November 27, 2018, I agreed to this request, but limited the scope of any additional submissions to matters arising directly from the Appeal Division hearing.^{Footnote 3} I also gave the Appellant’s representative a short period to reply to the Minister’s additional submissions, but none were received.

Issues

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

1. Did the General Division base its decision on an erroneous finding of fact by misinterpreting a note written by the Appellant’s family physician?
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

[9] 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 focus was on whether 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. While I flagged other possible issues in my leave to appeal decision, the Appellant’s representative surprisingly took no position on any of those issues.

[10] 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, I can intervene only if the General Division based its decision on an erroneous finding of fact and if that erroneous finding was made in a perverse or capricious way or without regard for the material that the General Division had before it. The Federal Court of Appeal 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?

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

[12] 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, 2013, 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.

[13] In this case, the General Division decided that the Appellant’s disability was not severe. Importantly, the General Division wrote this at paragraph 24 of its decision:

The Appellant was 56 years old, with a Grade 12 education and experience as a chef and in the business field at the time of her MQP. She made no attempts to return to work, and relies on the fact that this would be against her doctor’s orders. The document she relies on does not state that she is incapable of working. It simply states that she has not worked since June 2010, which is not in dispute.

[14] On the one hand, the Appellant argues that this paragraph contains an erroneous finding of fact because the General Division misinterpreted the note of her family physician, Dr. Dahan. In fact, Dr. Dahan wrote this: “[Patient] has been unable to work at any job since June 2010 for medical reasons.”^{Footnote 7}

[15] The Minister, on the other hand, argues that Dr. Dahan’s note was of little value: it is brief, lacks context, and is not supported by the results of medical investigations. In addition, the Minister submits that the General Division based its decision on other, more objective, aspects of the medical evidence; that it sufficiently and logically explained its conclusion; and that the Appeal Division should be reluctant to interfere with the General Division’s findings of fact.

[16] In my view, the General Division made an erroneous finding of fact when it interpreted Dr. Dahan’s note to simply say that the Appellant had not worked since June 2010. However brief it may be, Dr. Dahan’s note clearly provided a medical opinion supporting the Appellant’s assertion that she had been incapable of working for medical reasons since June 2010. The General Division’s interpretation of Dr. Dahan’s note is perverse or capricious: that interpretation is clearly unsupported by the words in the note.

[17] I am also convinced that General Division based its decision on this erroneous finding of fact. The General Division’s erroneous finding of fact appears in the first paragraph of its severity analysis and is linked to the General Division’s conclusion that the Appellant maintained a residual capacity to work and therefore had the obligation to make attempts at finding alternate work. These themes were obviously important to the General Division member because they come up again later in her analysis.

[18] While the Minister argues that Dr. Dahan’s note is of little value, it does relate to the very heart of the issue in dispute and was written by the Appellant’s family physician—the medical professional she consulted most frequently—who was well positioned to understand her overall condition and who authored a September 2014 medical report that was submitted as part of the Appellant’s application for a CPP disability pension.^{Footnote 8} Indeed, the General Division made absolutely no mention of Dr. Dahan’s medical report whatsoever, an oversight that, in my view, also amounts to an error of fact or law.^{Footnote 9}

[19] Importantly, by misinterpreting Dr. Dahan’s note and ignoring his medical report, the General Division failed to grasp that the Appellant’s family physician was in fact supportive of her application for disability benefits.

[20] I have concluded therefore that the General Division made an erroneous finding of fact as described in section 58(1)(c) of the DESD Act. As a result, I am authorized to intervene in this case.

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] Among the remedies available to me under section 59(1) of the DESD Act, the parties seem to agree that I should give the decision that the General Division should have given, though they disagree on whether the Appellant is entitled to a CPP disability pension.^{Footnote 10}

[23] 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. As a result, I recognize that correcting the General Division’s error will involve reweighing the evidence. I would note, however, that that re-assessment is limited to the relevant and admissible evidence that was before the General Division. Though the Appellant filed new evidence after the General Division made its decision, I have not considered any of that evidence.^{Footnote 11}

[24] I agree 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 and is part of a regime that is intended to make quick determinations;^{Footnote 12}
2. the power to determine whether a benefit is payable to a person is given to the Tribunal, and not just to one of the Tribunal’s particular divisions;^{Footnote 13} and
3. 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 (SST Regulations).^{Footnote 14}

[25] It is also worth highlighting that the Minister agrees that the evidentiary record before me is complete, and it has filed extensive submissions—at both the General and Appeal Divisions—explaining why the Appellant 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, thus creating a risk of the file returning to the Appeal Division.

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

[26] Yes, the Appellant is entitled to a CPP disability pension.

[27] 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, 2013. I will start by considering whether the Appellant’s disability was severe and then go on to consider the prolonged criteria.

[28] When assessing whether claimants have a severe disability, I must apply a number of guiding principles that were established in previous court decisions.

[29] For example, the severity requirement must be assessed in a real-world context.^{Footnote 15} 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 16} 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 17}

[30] 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 18} 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 19}

[31] In this case, the Appellant’s evidence was very compelling, and her oral evidence was left unchallenged because of the Minister’s decision not to attend the General Division hearing.

[32] At the hearing and in writing, the Appellant declared that, since she stopped working in June 2010, she has continuously had to alternate positions because the pain—particularly in her back, legs, and knees—prevents her from sitting, standing, walking, and lying down for prolonged periods.^{Footnote 20} These limitations form an important part of the real-world context in which the Appellant’s employability must be assessed.^{Footnote 21}

[33] In 2013, for example, the Appellant said that she was unable to walk beyond the limits of her own home and patio.^{Footnote 22} She also said that she had to give up activities that she loved, like gardening, baking, driving antique cars, and caring for her grandchildren; she was unable to do household chores; and she struggled with activities of daily living, like washing and dressing.^{Footnote 23}

[34] The Appellant also described her symptoms as unpredictable, meaning that she was unable to make plans because she never knew what her abilities would be like from one day to the next. The courts have recognized that predictability is an important factor when assessing whether a claimant’s disability is severe.^{Footnote 24}

[35] In my view, the Appellant’s evidence was significantly enhanced by the major impact that her disability has had on her and her husband. For example, the Appellant’s inability to work resulted in mounting debts to the point that she and her husband had to seek protection from their creditors in January 2014 and had to leave their family home of 20 years later that same year.^{Footnote 25} In other words, the Appellant had many reasons to return to work, if she had been able to.

[36] Regardless of how compelling the Appellant’s evidence was, however, her claim could be successful only if it was supported by medical evidence.^{Footnote 26} In this respect, the Appellant highlights that she received Employment Insurance sickness benefits after she stopped working in 2010.^{Footnote 27} According to the Appellant’s oral testimony, Dr. Dahan agreed that she was unable to do any work because of her need to continuously change positions and because of the unpredictability of her symptoms, but she was unable to find the medical note that he must have written to this effect.^{Footnote 28} Instead, Dr. Dahan wrote the note discussed above in or around August 2015: that is, the one in which he wrote that the Appellant had been unable to do any job for medical reasons since June 2010.^{Footnote 29}

[37] In the September 2014 medical report that accompanied the Appellant’s application for disability benefits, Dr. Dahan confirmed the Appellant’s diagnoses of diabetes, hypertension, and obesity.^{Footnote 30} He also wrote that she had a number of conditions under investigation, such as depression and restless leg syndrome, and noted that relevant physical findings and functional limitations included dysmobility, fatigue, insomnia, headaches, arthritis, nausea, vomiting, loss of focus, mood swings, and dizziness.

[38] In late 2013, the Appellant had X-rays on her knees and consulted an orthopaedic surgeon, Dr. David.^{Footnote 31} The X-rays confirmed that there were osteoarthritic changes in the Appellant’s knees, and while Dr. David foresaw the need for bilateral knee replacements, he refused to consider that option until the Appellant lost 100 lb. While Dr. David did not comment directly on the Appellant’s ability to work, the need for bilateral knee replacements does support the seriousness of her condition.

[39] There is also evidence in the file regarding other conditions, such as endometrial cancer, an incisional hernia, chest pains, and varicose veins, though they appear to have been treated successfully.

[40] The Minister rightfully points out that the medical evidence in support of the Appellant’s claim for disability benefits is thin, though I have concluded that it is sufficient, especially when combined with the strength of her own evidence, as summarized above.

[41] I recognize that Dr. Dahan’s undated note is lacking in context, but it can be read with his medical report, which sets out the Appellant’s various conditions and functional limitations. Plus, as the Appellant’s frequently-consulted family physician, he is well placed to assess her condition in its entirety, which is a requirement under the CPP. In my view, therefore, the opinion expressed in Dr. Dahan’s note is entitled to some weight.

[42] The Appellant also provided a reasonable explanation for the small amount of medical evidence in her case. In a nutshell, she was caught in a vicious circle from which she has had trouble escaping. Dr. David refused to operate on her knees until she lost 100 lb., but she was unable to lose weight because of her mobility issues and inability to pay for the services that were recommended to her. Indeed, the Appellant explained that Drs. David and Dahan recommended only treatment options that she could not afford. The vicious circle in which the Appellant has been trapped also included an element of depression, a condition that was aggravated by her loss of mobility and independence.

[43] The Minister also argued that the objective medical evidence—such as the October 2013 X-rays of the Appellant’s knees—do not show that a serious pathology was present on or before December 31, 2013. In response, however, I would note that the pain of which the Appellant complained was not just in her knees, that pain cannot always be seen on X-rays, and that it is the cumulative effect of the Appellant’s conditions that make her incapable regularly of pursuing a substantially gainful occupation.

[44] I recognize also that there is evidence on the file suggesting that the Appellant failed to pursue recommended treatments and that she maintained some work capacity, such as by renovating her home and operating a catering business.

[45] Again, however, the Appellant offered reasonable explanations at the hearing whenever these possible contradictions were put to her. For example, the Appellant could not afford the $250/hour psychologist that Dr. Dahan had recommended to her. The Appellant also admitted that losing weight was a struggle for her, particularly in light of her mobility issues. Nevertheless, Dr. Dahan’s recommended weight loss programs were too expensive, he refused to refer the Appellant to state-funded options, and discouraged her from pursuing the more economical options that she had identified.^{Footnote 32}

[46] It is also worth underscoring that the Appellant has taken steps to manage her condition by pursuing bariatric surgery, but the waitlist for that procedure is very long. At her own initiative, she has also pursued community resources, though that process had admittedly been long.

[47] With respect to the Appellant’s home renovation project, the Appellant explained that she supervised the work from a computer chair, without doing any of the work herself.^{Footnote 33} The reference to the Appellant’s catering business appears in one letter from a dermatologist,^{Footnote 34} is entirely inconsistent with the balance of the evidence, and is not a subject on which the Appellant was questioned at the General Division hearing. As a result, I refuse to conclude that this evidence is indicative of a capacity to work.

[48] Overall, therefore, I find that it is more likely than not that the Appellant has had a severe disability since she stopped working in June 2010: after that date, she was incapable regularly of pursuing any substantially gainful occupation. When reaching this conclusion, I relied particularly on the cumulative effect of the Appellant’s various conditions, her fatigue, her need to continuously change positions, and the unpredictability of her symptoms. In addition, this conclusion is supported by the Appellant’s family physician and by her own very persuasive assertions, both orally and in writing.

[49] In terms of the real-world context, I recognize that the Appellant’s education, language skills, and past work experience weigh positively in favour of her employability. However, these factors must be weighed against the very serious limitations that the Appellant’s various conditions impose on her ability to work, her age (56 at the end of her MQP), and the fact that she has worked only as a chef since about 1987.

[50] As discussed above, I am also unconvinced that vague references in the file to the Appellant’s home renovation project or catering business amount to evidence that she maintained a capacity to work beyond June 2010. As a result, she was not obliged to seek out alternative work, as the General Division suggested.^{Footnote 35}

[51] Turning to the question of whether the Appellant’s disability was also prolonged, I would refer again to the vicious circle of pain, impaired mobility, obesity, depression, and poverty in which the Appellant found herself. Dr. Dahan also described her prognosis as poor in light of the chronic and deteriorating nature of her various conditions.^{Footnote 36}

[52] To this point, I have been reluctant to refer to the material that the Appellant submitted from the Horizon Health Network and from Ability New Brunswick.^{Footnote 37} Though these documents refer to significant functional limitations, including ones that the Appellant says were present before the end of her MQP, she did not retain these services until 2016. As a result, the authors of these reports could not confirm the Appellant’s condition before the end of 2013. Nevertheless, these documents speak strongly to the persistent nature of the Appellant’s struggles.

[53] While the Appellant testified at the General Division hearing to regaining some of her mobility, that progress has been very slow. For example, at the time of the hearing, she said that she could—on a good day, with the help of a rollator, and by taking multiple breaks—walk up to one block. Significantly, however, there was no indication at the General Division hearing of a timeline within which the Appellant might be able to lose 100 lb., of how much longer she might have to wait for bariatric surgery, or of how long she might have to wait for bilateral knee replacement surgeries (even after she lost the necessary weight).

[54] I am convinced therefore, on a balance of probabilities, that the Appellant’s disability is likely to be long continued and of indefinite duration.

[55] Overall, therefore, I have concluded that the Appellant has had a severe and prolonged disability since she stopped working in June 2010 and is entitled to a CPP disability pension.

[56] By law, a person cannot be deemed disabled more than 15 months before the Minister received the application for a disability pension.^{Footnote 38} Because the Minister received the Appellant’s application in September 2014, she is deemed to have been disabled in June 2013.

[57] 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 October 2013.

Conclusion

[58] 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 misinterpreted and failed to grasp important evidence that the Appellant’s family physician had provided. I also concluded that this was an appropriate case in which to give the decision that the General Division should have given.

[59] Because the evidence that was misinterpreted touched on the Appellant’s capacity to work since 2010, I re-weighed the evidence on this issue and ultimately concluded that the Appellant had proven her entitlement to a CPP disability pension, starting in October 2013.

[60] The appeal is allowed.