Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] M. S. (Claimant) completed Grade 12 and has certificates in office and medical administration. She worked in administrative jobs until 2015 when she reacted to airborne chemicals. The Claimant applied for a Canada Pension Plan disability pension and claimed that she was disabled by scent sensitivities, and paradoxical vocal fold motion disorder. She also has complex regional pain syndrome in her right arm.

[3] The Minister of Employment and Social Development refused the application. The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division allowed the appeal and decided that the Claimant became disabled in November 2016.

[4] The Minister asks for leave (permission) to appeal the General Division decision to the Tribunal’s Appeal Division. Leave to appeal is refused because there is no reasonable chance of success on appeal based on the grounds of appeal under the Department of Employment and Social Development Act (DESD Act).

Grounds of appeal

[5] The DESD Act governs the Tribunal’s operation. It provides rules for appeals to the Appeal Division. An appeal is not a re-hearing of the original claim. Instead, I must decide whether the General Division:

1. failed to provide a fair process;
2. failed to decide an issue that it should have, or decided an issue that it should not have;
3. made an error in law; or
4. based its decision on an important factual error.^{Footnote 1}

These are called grounds of appeal.

[6] Before I can decide an appeal, I must decide whether to grant leave (permission) to appeal. The DESD Act says that leave to appeal must be refused if the appeal does not have a reasonable chance of success.^{Footnote 2} Therefore, to be granted leave to appeal the Claimant must present at least one ground of appeal (reason for appealing) that falls under the DESD Act and on which the appeal has a reasonable chance of success.

Issues

[7] Does the appeal have a reasonable chance of success because the General Division made at least one of the following errors in law:

1. It failed to consider the impact of the Claimant’s failure to follow treatment recommendations on her disability status; or
2. It decided that the Claimant had no work capacity when there was no objective evidence of this.

[8] Does the appeal have a reasonable chance of success because the General Division based its decision on at least one of the following important factual errors:

1. That the Claimant had no residual work capacity;
2. That the Claimant’s right arm injury impacted her capacity to work; or
3. That the Claimant made efforts to reduce/improve her symptoms;

Analysis

Error in law

[9] One ground of appeal under the DESD Act is that the General Division made an error in law. The Federal Court of Appeal teaches that the General Division must consider whether a person’s refusal to undergo treatment was reasonable and the impact on any unreasonable refusal on their disability status.^{Footnote 3} The Minister argues that the Claimant has not had recommended counselling, further speech therapy or consulted with a work transition specialist, and that the General Division’s failure to consider the impact of this on her disability status was an error in law.

[10] The General Division states that the Claimant complied with some treatment recommendations, and was willing to follow others when referrals were made. The General Division decision carefully considered all of the treatments that the Claimant tried,^{Footnote 4} including

• a number of medications for each of her conditions.^{Footnote 5}
• the Claimant refusal to pursue swimming/aqua-jogging because of the effect of cold water and chlorine on her conditions.^{Footnote 6}
• eliminating all scents from her home and installing air purifiers.^{Footnote 7}
• consulting specialists for respirology and internal medicine, asthma, otolaryngology, and an environmental health clinic.^{Footnote 8}
• two courses of speech pathology.^{Footnote 9}
• wearing special masks when outside her home and a wearable air purifier.^{Footnote 10}

In addition, the Claimant had not had counselling for anxiety because she was waiting for WSIB to set it up, She was willing to participate once this was available.^{Footnote 11} She was also waiting for a referral to Dr. Anderson.^{Footnote 12}

[11] Based on this evidence, the General Division concluded that the Claimant has not refused any treatment.  There is a basis for the General Division to reach this conclusion. Therefore, it was not necessary for the General Division to decide whether any such refusal was unreasonable, or what impact the refusal had on her disability status. The appeal does not have a reasonable chance of success on this basis.

[12] The Minister also argues that the General Division made an error in law because it decided that the Claimant had no capacity regularly to pursue any substantially gainful occupation when no objective evidence that said this. However, it is for the Tribunal to decide whether a person has capacity regularly to pursue any substantially gainful occupation, not for their treatment providers. The General Division received the evidence and carefully weighed it. The decision states that the assessment of the evidence was difficult.^{Footnote 13} It then explains the difficulty – that the Claimant overstated her limitations and no health care provider expressly stated that the Claimant could not work.^{Footnote 14}

[13] The General Division decision also states that although no health care provider said that the Claimant could not work, this was not detrimental to the appeal, especially since the most recent medical reports do not say that the Claimant could work. Based on its review of the evidence, the General Division concluded that the medical practitioners said either that it was unrealistic to expect the Claimant to work with her restrictions, or that it was not known whether she could work.^{Footnote 15} It refers to reports from Dr. Bray and Dr. Tarlo to support this conclusion.

[14] The General Division also weighed the Claimant’s evidence, and then decided that the Claimant had no capacity regularly to pursue any substantially gainful occupation.

[15] The appeal does not have a reasonable chance of success on the basis of this ground of appeal. The General Division applied the correct legal test to the facts before it.

Factual error

[16] Another ground of appeal that I can consider is whether the General Division based its decision on an important factual error. To succeed on appeal on this basis, the Minister must prove three things:

1. that a finding of fact was erroneous (in error);
2. that the finding was made perversely, capriciously, or without regard for the material that was before the General Division; and
3. that the decision was based on this finding of fact.^{Footnote 16}

[17] The first finding of fact that the Minister says was made in error is that the Claimant had no residual work capacity. However, as set out above, there is an evidentiary basis for the finding of fact that the Claimant did not have such capacity. Therefore, it was not made in error. The appeal does not have a reasonable chance of success on this basis.

[18] The second finding of fact that the Minister argues was made in error is that the Claimant’s right arm impacted the Claimant’s ability to work. The Minister argues that because the Claimant was able to work with this condition for a number of years, it should not have impacted her overall capacity to work.

[19] However, the General Division had to consider this condition and its impact on her capacity regularly to pursue any substantially gainful occupation. The Federal Court of Appeal teaches that all of a claimant’s conditions, not just the main one, must be considered.^{Footnote 17} In addition, the Claimant refers to her arm injury in the disability pension questionnaire,^{Footnote 18} so its impact on the Claimant’s capacity to work was squarely before the Tribunal. The appeal has no reasonable chance of success on the basis of this argument.

[20] Finally, the Minister argues that the General Division made an erroneous finding of fact regarding the Claimant’s efforts to reduce or improve her symptoms. However, there was a solid evidentiary basis for its conclusion that the Claimant had made such efforts (see above). A person is not expected to exhaust absolutely every possible treatment option before they can be found disabled.^{Footnote 19} Therefore, this finding of fact was not erroneous. The appeal does not have a reasonable chance of success on this basis.

[21] I have reviewed the General Division decision and the written record. The General Division did not overlook or misconstrue any important information.

Conclusion

[22] Leave to appeal is refused for these reasons.