Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] The Applicant, A. B., injured her right knee in the 1990s. At that time, she underwent reparative surgeries and later trained to be a nursing assistant. She worked in that capacity for several years until 2012, when, she claims, increasing knee pain and mobility restrictions made it impossible for her to continue. She has not worked since and is now 47 years old.

[3] In March 2017, the Applicant applied for a Canada Pension Plan (CPP) disability pension, claiming that she could no longer work because of knee pain, as well as a head inflammation that impaired her judgment. The Respondent, the Minister of Employment and Social Development (Minister), refused the application because, in its view, the Applicant did not have a severe and prolonged disability, as defined by the Canada Pension Plan, during the minimum qualifying period (MQP), which it determined had ended on December 31, 2014.

[4] The Applicant appealed the Minister’s refusal to the General Division of the Social Security Tribunal. The General Division held a hearing by teleconference and, in a decision dated August 30, 2019, dismissed the appeal, finding that the Applicant had failed to demonstrate that she was incapable regularly of pursuing any substantially gainful occupation during the MQP. The General Division found no evidence that the Applicant had sought medical treatment for knee pain between January 2014 and September 2016 and determined that symptoms from her scalp bursitis had largely resolved by the end of the MQP. The General Division also found that, “[i]n the absence of medical evidence of any seriously disabling health condition by December 2014, the [Applicant] failed to show that efforts to obtain and maintain employment were unsuccessful because of her health condition.”^{Footnote 1}

[5] On October 4, 2019, the Applicant applied for leave to appeal from the Tribunal’s Appeal Division alleging various errors on the part of the General Division. I have summarized these allegations as follows:

• In paragraph 7 of its decision, the General Division stated that that Applicant’s mother and sister were helping her with her chores. In fact, it was her children.
• In paragraph 8, the General Division suggested that the Applicant’s head pain was not severe because her treatment for it was “temporary.” In fact, her treatment was extensive—as supported by medical evidence that the General Division ignored.
• In paragraph 11, the General Division incorrectly found that there was no medical information on file to corroborate her complaints of right knee pain from January 2014 to September 2016. In doing so, the General Division overlooked important medical documents showing that she did report knee pain to her treatment providers during that period.
• In paragraph 12, the General Division erroneously found that the Applicant did not report head pain to her family doctor between June 2014 and September 2017. In doing so, the General Division disregarded medical evidence that she spoke to Dr. Malik about her scalp bursitis in July 2017 and September 2017.
• In paragraph 19, the General Division found that the Applicant’s learning difficulties did not make her unemployable. However, this ignored the fact that her educational report found that her spelling was at a Grade 4 level, her arithmetic at Grade 6, and her reading at Grade 8.
• In paragraph 22, the General Division found that, since the Applicant’s disability was not severe, it did not have to make a finding on the prolonged criterion. In fact, it was required to make a decision on both.

[6] I have reviewed the General Division’s decision against the 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 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.

[8] An appeal may be brought only if the Appeal Division first grants leave to appeal.^{Footnote 2} To grant leave to appeal, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 3} The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.^{Footnote 4}

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

1. Issue 1: Did the General Division base its decision on an erroneous finding that the Applicant’s mother and sister helped her with household chores?
2. Issue 2: Did the General Division base its decision on an erroneous finding that the Applicant’s head pain was not severe because her treatment for it was “temporary”?
3. Issue 4: Did the General Division base its decision on an erroneous finding that the Applicant did not report head pain to her family doctor between June 2014 and September 2017?
4. Issue 3: Did the General Division base its decision on an erroneous finding that there was no medical information to corroborate the Applicant’s right knee pain from January 2014 to September 2016?
5. Issue 5: Did the General Division base its decision on an erroneous finding that the Applicant’s learning difficulties did not make her unemployable?
6. Issue 6: Did the General Division err in law by failing to consider whether the Applicant’s disability was prolonged?

Analysis

Issue 1:  Did the General Division base its decision on an erroneous finding that the Applicant’s mother and sister helped her with household chores?

[10] I do not see an arguable case for this submission. In paragraph 7 of its decision, the General Division wrote:

1. The [Applicant] testified that because of her knee condition, family members have done most of the household chores since at least 2014. When she gave birth to her son in May 2015, her mother and her sister visited her home daily for about a year, until she “got on her feet again.”

The Applicant denies telling the General Division that her mother and sister helped her around the house; she insists that it was her children who assisted her.

[11] I have reviewed the audio recording of the hearing and heard nothing to indicate that the General Division significantly misrepresented the Applicant’s testimony. At one point, the General Division asked the Applicant about her home life in 2014. The Applicant replied that her adult daughter helped her with domestic tasks such as grocery shopping, cooking, cleaning, and laundry.^{Footnote 5} However, late in the hearing, the General Division returned to subject:^{Footnote 6}

1. Member: When you had your son in 2015, did you have help with him?
2. Applicant: Yes.
3. Member: Who from?
4. Applicant: My family members.
5. Member: Your daughter?
6. Applicant: My family members. Well, my daughter helped limitedly. I say that because there was a baby. There’s stuff she didn’t know. So my sister and my aunt came, like, everyday, everyday, everyday until I got on my feet.
7. Member: Where do they live?
8. Applicant: Pardon me?
9. Member: Where do your sister and your mother live?
10. Applicant: Right around the corner. I mean, my mother.
11. Member: So how long did they help you?
12. Applicant: I’d say, until I got on my feet. It was about just over a year because I developed high blood pressure and I was kept in the hospital as well.

[12] This exchange indicates that, when asked who had helped her after she had her baby, the Applicant named her sister and aunt. It appears that the General Division heard “mother” instead of “aunt,” but I do not think this error is significant: the larger point is that the Applicant received help, whether it was her aunt or her mother or both who provided it. In any case, I note that the Applicant did not correct the General Division member when she said “mother.”

Issue 2:  Did the General Division base its decision on an erroneous finding that the Applicant’s head pain was not severe because her treatment for it was “temporary”?

[13] I do not see an arguable case for this submission. In paragraph 8, the General Division wrote:

1. The [Applicant] also stated that she had suffered from pain in her head since 2011. In 2014, it caused her pain all the time. It felt like her brain was swelling, and she would lose focus. She had injections in her head in 2011 and 2012, as well as in 2018. These were of temporary assistance, but the pain returns when she combs or washes her hair.

[14] This passage shows that the General Division described the effect of the Applicant’s treatment as “temporary”—not the condition itself. Furthermore, I see nothing in the decision as a whole to indicate that the General Division drew any negative inferences from the effectiveness—or lack thereof—of any treatment for the Applicant’s scalp bursitis.

[15] The General Division found that the bursitis did not contribute to any disability that the Applicant may have had. However, it based that finding, not on her treatment for that condition, but on a more than three-year gap, from June 2014 to September 2017, in which the Applicant did not mention head pain to any of her doctors. I see no reason to interfere with this finding where the General Division made a good-faith effort to assess the available evidence.

Issue 3: Did the General Division base it decision on an erroneous finding that the Applicant did not report head pain to her family doctor between June 2014 and September 2017?

[16] There is no question that the General Division based its decision on what it identified as unexplained gaps in the medical record concerning the Applicant’s scalp bursitis and knee pain. The General Division clearly inferred capacity from the absence of any documented instances, in and around the Applicant’s eligibility period, where she complained about those conditions.

[17] The Applicant submits that the General Division erred when it found that she did not report head pain to her family doctor between June 2014 and September 2017. She points to evidence that she spoke to Dr. Malik about her scalp bursitis in July 2017 and September 2017.

[18] I do not see an arguable case for this allegation. In paragraph 12, the General Division wrote:

1. Dr. Malik did not mention head pain in her CPP medical report of March 2017. In July 2017, the [Applicant] told Dr. Malik that that her bursitis had been continuous since 2011. However, as the Minister submitted, the [Applicant] did not report head pain to her family doctor between June 2014 and September 2017. It was not until 2018 that the [Applicant] received another injection for head pain.

Dr. Malik’s handwritten office notes are admittedly difficult to decipher, but I did not see any reference to the Applicant’s head or scalp in 2015 or 2016. On July 18, 2017, Dr. Malik wrote:

1. Pt. in today c/o [complaining of] “not having entered ‘pain in her scalp in 2012, 13 & 14, 15’ in her disability form,” says she would [illegible] it in her form. Will put in writing as a separate [illegible]. D [change] Bursitis scalp.^{Footnote 7}

That same day, Dr. Malik wrote a short letter “To Whom It May Concern”:

1. This is to inform you that the [Applicant] had bursitis of the scalp in 2011. She was treated with subbursal cortisone injections on 23/08/2011 and again on 29/02/2012. As per her statement, the bursitis continues today.^{Footnote 8}

[19] It appears that, after the Minister refused her application for disability benefits, the Applicant, realizing that Dr. Malik’s CPP medical report had said nothing about her scalp condition, asked her family physician to, in effect, amend the report. Dr. Malik complied with the Applicant’s request, but was careful to note that she was merely relaying information from her patient. As seen in the passage quoted above, the General Division cited this letter in its decision, so I do not see an arguable case that the member ignored it.

[20] As for whether the General Division correctly identified a 39-month gap in the record, the member noted that the Applicant “did not report head pain to her family doctor between June 2014 and September 2017.” However, the Applicant retrospectively reported head pain to her family doctor in July 2017, but it did so primarily to augment her disability claim. That said, even if the General Division overstated the gap period, it did so by only two months. A decision can only overturned because of an erroneous finding of fact if that error is material. I do not think that it can be reasonably said that finding a gap of 37 months, rather than 39 months, would have made any difference to the General Division’s reasoning.

Issue 4:  Did the General Division base its decision on an erroneous finding that there was no medical information to corroborate the Applicant’s right knee pain from January 2014 to September 2016?

[21] Again, I do not see an arguable case for this submission. In paragraph 11, the General Division wrote:

1. As the Minister submitted, the [Applicant] did not seek medical attention for knee pain between January 2014 and September 2016. The [Applicant] was unable to direct me to any medical information that contradicted this, and I was unable to find any in the file.

The Applicant argues that this statement is incorrect and points to selected documents that she says contradict the General Division.

[22] However, these documents do not do what the Applicant says they do. A letter from Dr. Lori Beatty said that the Applicant arrived at the emergency department complaining of knee pain on June 22, 2018.^{Footnote 9} A letter from Dr. T. Duncan Smith and Dr. Jennifer Leighton, which referred to right knee osteoarthritis, was undated.^{Footnote 10} A letter from Dr. S. Malik referred, not to knee pain, but bursitis, and was dated July 18, 2017.^{Footnote 11} A letter from Dr. Richard Leckey was dated April 1, 2014, but it was exclusively concerned with headaches and said nothing about knee pain.^{Footnote 12} Similarly, clinical notes by Dr. Malik dated July 18, 2017, September 5, 2017, and December 11, 2017 addressed only the Applicant’s scalp bursitis.^{Footnote 13}

[23] All of the documents cited by the Applicant were either about her scalp condition, dated after September 2016, or both. None of them contradicted the General Division’s finding that there was a more than two-year period in which none of the Applicant’s treatment providers documented any symptoms of right knee pain.

Issue 5: Did the General Division base its decision on an erroneous finding that the Applicant’s learning difficulties did not make her unemployable?

[24] I do not see an arguable case for this submission. In paragraph 19, the General Division wrote:

1. While the [Applicant’s] learning difficulties may have put her at a disadvantage in terms of seeking employment, they did not render her unemployable. She testified that she had on-the-job training as a continuing care assistant, a job at which she evidently worked for some four years (2008–2012). In addition, the [Applicant] testified that she was able to complete Grade 12 as an adult in about 2015. This suggests that she had some work capacity as of 2015.

The Applicant argues that the General Division ignored the fact that her educational report found that her spelling was at a Grade 4 level, her arithmetic at Grade 6, and her reading at Grade 8.

[25] This educational report is from 1990,^{Footnote 14} and it was reproduced, with some pages apparently missing, in the record that was before the General Division. It indicates that the Applicant was “functioning in the borderline to low average range of intelligence,” but I do not see an arguable case that the General Division disregarded or misunderstood it. In fact, the General Division explicitly referred to the educational report in paragraph 18 of its decision.

[26] One of the General Division’s mandates is to review the available evidence and make findings of fact. The Appeal Division ordinarily allows the General Division some leeway in how it fulfills this mandate: the General Division can weigh the evidence as it sees fit, provided that it does not stray into error. Here, the General Division noted the Applicant’s learning difficulties as a teenager, but chose to place more weight on the fact that she had managed to complete high school as an adult. I do not see how this finding constitutes an erroneous finding of fact, much less one that is “perverse or capricious” or “made without regard for the material before it.”

Issue 6:  Did the General Division err in law by failing to consider whether the Applicant’s disability was prolonged?

[27] The Applicant argues that the General Division was required to make a decision on both the severe and prolonged criteria for disability. I do not see an arguable case on this proposed ground of appeal.

[28] Having found that the Applicant’s disability was not “severe” according to the statutory definition, the General Division concluded in paragraph 22 of its decision that it was unnecessary to consider the “prolonged” criterion.

[29] Section 42(2)(a) of the CPP defines disability as a physical or mental disability that is “severe and prolonged” [my emphasis]. To qualify for CPP disability benefits, it is not enough to have an impairment that is either severe or prolonged; it must be both. Logic demands that if the General Division found that the Applicant’s disability fell short of severity, then her claim must fail, regardless of how long‑lived or indefinite her condition might be.

Conclusion

[30] 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.