Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The application is refused.

Overview

[2] The Appellant, H. S., has asthma and claims that she can no longer work because of breathlessness and low endurance. She is now 59 years old. For many years, she worked on an auto parts assembly line, a job that she left in June 2013, after fumes from injection molding machines triggered an asthma attack.

[3] The Applicant has applied for Canada Pension Plan disability pension twice, most recently in February 2017. On each occasion, the Respondent, the Minister of Employment and Social Development (Minister), refused the application after determining that her disability was not “severe and prolonged” as of the minimum qualifying period (MQP), which ended on December 31, 2016.

[4] The Applicant appealed the Minister’s second refusal to the General Division of the Social Security Tribunal. The General Division held a hearing by teleconference and, in a decision dated October 16, 2018, dismissed the appeal, finding that the Applicant had failed to demonstrate that she was “incapable regularly of pursuing any substantially gainful occupation” as of the MQP. In particular, the General Division found that the Applicant had not made reasonable attempts to seek alternative employment.

[5] On December 3, 2018, the Applicant’s legal counsel requested leave to appeal from the Tribunal’s Appeal Division, alleging various factual and legal errors on the part of the General Division. In particular, the Applicant alleged that the General Division:

• selectively favoured those reports, in which Dr. Finnigan found the Applicant had some work capacity, over the family physician’s most recent report,^{Footnote 1} in which he ruled out work completely;
• disregarded Dr. Finnigan’s view that a physical job was “out of the question”^{Footnote 2} for the Applicant, who has limited skills for even a sedentary occupation;
• failed to consider the Applicant’s capacity to work in a real world context, as required by Villani v Canada;^{Footnote 3}
• failed to appreciate that asthmatic symptoms vary widely and that every individual experiences them differently.

[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 section 58(1) of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division: the General Division failed to observe a principle of natural justice, erred in law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material. An appeal may be brought only if the Appeal Division first grants leave to appeal.^{Footnote 4} To grant leave to appeal, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 5} The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.^{Footnote 6}

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

Analysis

Issue 1: Did the General Division selectively weigh Dr. Finnigan’s medical evidence?

Issue 2: Did the General Division disregard Dr. Finnigan’s view that physical work is not an option for the Applicant?

[9] The Applicant takes issue with how the General Division weighed Dr. Finnigan’s medical evidence, in particular the family physician’s most recent letter, in which he categorically ruled out any form of work for the Applicant.

[10] In my view, there is no arguable case for these submissions. In its decision, the General Division wrote:

[…] The [Applicant’s] family physician, Dr. Finnigan, reported in March 2014 that he is unable to conclude the [Applicant] is completely disabled and unable to engage in any form of employment, noting a non-physical job in a clean environment would likely suit the [Applicant] quite well. He reported in June 2015 he thinks the [Applicant] can work, but a physical manual labour job is likely out of the question based on her reports. Dr. Miller concluded in June 2016 the [Applicant’s] asthma is not sufficiently severe to prevent her from any type of work. Dr. Finnigan’s report in January 2017 concluded it was unlikely the [Applicant] will return to her place of previous employment, but did not rule out sedentary jobs subject to limitations. I find the noted reports to be evidence of work capacity before December 31, 2016. I find Dr. Finnigan’s brief two sentence note dated September 14, 2018, wherein he reported the [Applicant] was incapable of working, inconsistent with his and Dr. Miller’s detailed reports, and their opinion that the [Applicant] had work capacity before December 31, 2016.

In this passage, the General Division considers the various reports that Dr. Finnigan has written on the Applicant’s behalf over the years, noting what appears to be an evolution in the family doctor’s views about his patient’s vocational capacity. Whereas Dr. Finnigan declared the Applicant potentially capable of non-physical work as late as January 2017,^{Footnote 7} he seemed to rule out any form of work 21 months later.

[11] It is important to keep in mind that the General Division is within its authority to weigh the available evidence as it sees fit, so long as it remains within the parameters of section 58(1) of the DESDA. In Simpson v Canada,^{Footnote 8} the Federal Court of Appeal stated the following:

[A]ssigning weight to evidence, whether oral or written, is the province of the trier of fact. Accordingly, a court hearing an appeal or an application for judicial review may not normally substitute its view of the probative value of evidence for that of the tribunal that made the impugned finding of fact.

While the Applicant may not agree with the General Division’s conclusions, it is open to an administrative tribunal to sift through the relevant facts; to assess the quality of the evidence; to determine what evidence to accept or disregard; and to decide on the weight to give that evidence.

[12] The Applicant is not alleging that the General Division mischaracterized, misunderstood, or even ignored, any of Dr. Finnigan’s reports; rather, she is suggesting that the General Division should have interpreted them in a way that better favoured her case. However, faced with competing evidence, the General Division was permitted to give preference to some of Dr. Finnigan’s reports over others, so long as there was a rational basis for doing so. In this case, the General Division reasonably chose to discount Dr. Finnigan’s September 2018 letter because it had, compared to his reports dating from the MQP, limited relevance to the Applicant’s pre-2017 condition.

[13] Similarly, the Applicant submits that the General Division failed to draw the right conclusions from Dr. Finnigan’s letter dated June 16, 2015. In it, Dr. Finnigan wrote: “I think she can work, but a physical or manual labour job is likely out of the question based on her self-reports.” The Applicant argues that the General Division should have placed this remark in context by taking into account the Applicant’s lack of transferrable skills; however, the General Division did just that in paragraph 24 of its decision, where it discussed the impact of her background and personal profile on her potential employability. The question now is whether the General Division did so in compliance with Villani.

Issue 3: Did the General Division fail to apply the real world test?

[14] Villani requires disability to be considered in a real world context, taking into account a claimant’s employability, given their age, work experience, level of education, and language proficiency. The Applicant specifically alleges that the General Division erred when it determined that her disability was less than severe, despite evidence that she is realistically unemployable in a contemporary competitive setting, given her asthma and related symptoms.

[15] Ultimately, I do not see an arguable case for this submission, which, in essence, is a request to reassess the evidence regarding the Applicant’s impairments. I note the words of the Federal Court of Appeal in Villani:

[A]s long as the decision-maker applies the correct legal test for severity—that is, applies the ordinary meaning of every word in the statutory definition of severity in subparagraph 42(2)(a)(i) [of the CPP] he or she will be in a position to judge on the facts whether, in practical terms, an applicant is incapable regularly of pursuing any substantially gainful occupation. The assessment of the applicant’s circumstances is a question of judgment with which this Court will be reluctant to interfere.

This passage suggests that the General Division, as trier of fact, should be afforded a degree of deference in how it assesses a claimant’s background. It also implies that whether the test for disability was applied matters more than how it was applied. This approach happens to align with recent Federal Court of Appeal decisions^{Footnote 9} that have clearly defined the three grounds of appeal available under section 58(1) of the DESDA. In short, the court now considers that the Appeal Division does not have jurisdiction to intervene on questions of mixed fact and law. It is, therefore, necessary to ask whether a reason for appealing can be clearly classified as an error of law or as an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.

[16] In the submissions with her leave to appeal, the Applicant wrote:

In this case we have a 59-year-old applicant with a grade 12 education who has only done the same factory type education for the last 24 years. Based on the criteria of age, education level and past work and life experience and support by her doctor, the [Applicant] would meet the definition of having a severe and prolonged disability and fall under the definition as described by Villani.^{Footnote 10}

The Applicant does not deny that the General Division considered the Applicant’s age, work experience, level of education, and language proficiency; instead, she takes issue with how the General Division applied Villani to her personal characteristics. However, my review of the General Division’s decision indicates that it correctly cited Villani and analyzed the likely impact of the Applicant’s impairments on her employment prospects in the context of her background:

I must assess the severe part of the test in a real world context18. This means that when deciding whether a person’s disability is severe, I must keep in mind factors such as age, level of education, language proficiency, and past work and life experience. The Claimant was fifty-seven years old at her MQP, being significantly younger than the normal retirement age in Canada. She is reasonably well educated, fluent in English, and has transferrable skills based on her education, past work, and life experiences, including working in a retail facility in customer service for several years. I find the Claimant’s personal factors did not affect her capacity to pursue substantially gainful light duty or sedentary type work or attend retraining or educational upgrading programs to acquire skills required for such work, before December 31, 2016.^{Footnote 11}

[17] It cannot be said that the General Division was unmindful of Villani or that it did not attempt to apply its chief principle. From that standpoint, the General Division fulfilled its duty under the law. In doing so, the General Division examined the Applicant’s profile, finding that, even under her challenging circumstances, there were mentally and physically undemanding jobs that she had not yet tried. It is clear that the Applicant finds the General Division’s analysis unreasonable, but unreasonableness is not one of the grounds of appeal permitted under section 58(1).

Issue 4: Did the General Division fail to appreciate that asthma is experienced subjectively?

[18] Again, I do not see an arguable case on this proposed ground of appeal.

[19] From what I can gather, the General Division did not dismiss the Applicant’s appeal because she has asthma, but because, in its view, the symptoms associated with her asthma did not render her disabled from substantially gainful employment. As the General Division noted, “[t]he measure of whether a disability is “severe” is not whether the person suffers from severe impairments, but whether the disability prevents the person from earning a living.”^{Footnote 12}

[20] Ultimately, this submission amounts to a bid to reargue the substance of the Applicant’s disability claim. As a member of the Appeal Division, I cannot consider such an argument, given the restrictions of section 58(1) of the DESDA. My review of the decision indicates that the General Division conducted what appears to be a thorough survey of the evidentiary record. It analyzed the Applicant’s health issues and how they affected her capacity to regularly pursue substantially gainful employment. In doing so, the General Division found that the Applicant’s asthma and associated symptoms of breathlessness were triggered or exacerbated by environmental factors such as smoke, fumes, or pollen. I see no indication that the General Division misrepresented, ignored, or inadequately considered any significant component of the evidence that was before it.

Conclusion

[21] Since 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.