Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] L. D. (Claimant) injured her back several times. After the injury in 2001, she stopped working. She explains that her main disabling conditions are a back injury with bulging and degenerative discs, chronic pain and myofascial pain syndrome, muscle spasm, and mechanical low back pain.

[3] The Claimant applied for a disability pension under the Canada Pension Plan (CPP). The Minister denied her application initially and on reconsideration. The Claimant appealed to this Tribunal. The General Division dismissed the Claimant’s appeal on January 8, 2019. The General Division found that the Claimant did not have a severe disability within the meaning of the CPP on or before the end of her minimum qualifying period (MQP), which is December 31, 1997.

[4] The Claimant appealed the General Division decision. I gave the Claimant permission (leave) to appeal. I found that there was an arguable case for an error in the General Division decision. That is a low threshold.

[5] I must decide whether it is more likely than not that the General Division made an error under the Department of Employment and Social Development Act (DESDA).

[6] I find that the General Division did not make an error under the DESDA. The appeal is dismissed.

Issues

[7] There are three issues I must decide in this appeal:

1. Did the General Division make an error of law by failing to focus the analysis of the Claimant’s work efforts on the minimum qualifying period?
2. Did the General Division make an error of fact about the Claimant’s attempts to return to work from 2001 to 2005?
3. Did the General Division make an error by failing to provide the Claimant with the opportunity to be heard?

Analysis

Reviewing General Division decisions

[8] The Appeal Division does not give people a chance to re-argue their case in full at a new hearing at this level. Instead, the Appeal Division reviews the General Division’s decision to decide whether there is an error. That review is based on the wording of the DESDA, which sets out the grounds of (or reasons for) appeal.^{Footnote 1} The DESDA says that the Appeal Division can fix (remedy) errors of law.^{Footnote 2}

[9] The DESDA says that it is an error when the General Division “bases 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.”^{Footnote 3} Mistakes involving the facts have to be important enough that they could affect the outcome of the decision. The error needs to result from ignoring evidence, willfully going against the evidence, or from reasoning that is not guided by steady judgement.^{Footnote 4}

[10] The DESDA says that it is an error when the General Division fails to observe the principles of natural justice.^{Footnote 5}

[11] The principles of natural justice focus on the fairness of the process. What fairness requires in each case will depend on a variety of factors.^{Footnote 6} The duty to act fairly is to allow the right to be heard.^{Footnote 7} The right to be heard is a critical part of natural justice. The Claimant as a right during a hearing before the General Division to present submissions on relevant issues. The right to be heard is about giving a person the opportunity to answer the questions put to them, and to make submissions on every fact or factor likely to affect the decision.^{Footnote 8}

Did the General Division make an error of law?

[12] The General Division did not make an error of law by failing to focus the analysis about the Claimant’s work efforts on the minimum qualifying period (MQP).

[13] The Claimant needed to show that she had a severe disability on or before the end of the MQP.^{Footnote 9} The MQP is calculated based on the claimant’s contributions to the CPP. In this case, the MQP ended on December 31, 1997.^{Footnote 10}

[14] The General Division decided that the Claimant did not prove that she had a serious health condition that meant she did not have capacity to do some work at the time of the MQP.^{Footnote 11}

[15] In reaching that conclusion, the General Division considered the Claimant’s CPP disability questionnaire,^{Footnote 12} the CPP medical report from her family physician,^{Footnote 13} and a series of medical reports (a report from March 1997, several reports from 1998, and one report from 2001).^{Footnote 14} The General Division also considered the Claimant’s personal circumstances, deciding that they would not negatively impact her ability to seek and, if necessary, retrain for part-time or full-time employment.^{Footnote 15}

[16] The General Division decided that on or before the end of the MQP, the Claimant was capable of light work. The General Division noted that the Claimant did, in fact, work as a cleaner in 2000, after the end of the MQP, and injured her back again in 2001.^{Footnote 16} The Claimant stated in her application for disability benefits that she stopped working in 2001 due to her back injury.

[17] Once the General Division finds that the claimant has some capacity^{Footnote 17} to work on or before the end of the MQP, the General Division must decide whether the Claimant’s efforts to get and keep employment were unsuccessful because of her health condition.^{Footnote 18}

[18] In my decision on leave to appeal, I stated that it may have been an error of law for the General Division to focus the analysis on the Claimant’s employment efforts in 2001 and following, given that the MQP ended on December 31, 1997. It is reasonable that re-employment efforts focus on the MQP, since that is the relevant period of time for showing that the disability is severe and prolonged.^{Footnote 19} The section of the decision on employment efforts does seem to focus on the Claimant’s efforts starting in 2001.^{Footnote 20}

[19] The Minister argues that the General Division did specifically consider the Claimant’s medical conditions and capacity to work at the time of the MQP.^{Footnote 21} The General Division focussed on a report from October 2016 about the Claimant’s back injuries, and a physiotherapist’s recommendation about easing back into work. The Minister also notes that the General Division relied on reports dated immediately after the MQP, including:

• A neurologist’s report from January 1998 that stated there was no medical contraindication to full-time employment;
• A Neurosurgeon’s note that the Claimant had a normal musculoskeletal and neurological exam and has no evidence of disc or SI joint dysfunction; and
• Two functional examinations (one in January and one in February) that stated she was capable of a four-hour workday and the other that she showed tolerance for an eight-hour workday at the light degree of strenuousness.^{Footnote 22}

[20] In light of all the information in the file about the Claimant’s condition at the time of the MQP, I cannot conclude on a balance of probabilities that the General Division made an error of law. The General Division found that the Claimant:

• was capable of work on or before the end of the MQP;
• worked full time as a cleaner after the end of her MQP (and before the final back injury that led her to stop working altogether); and that
• had earnings in 2000 and 2001.

[21] The General Division’s analysis of the Claimant’s work efforts, when read in the context of the rest of the decision, is not really improperly focussed on the wrong period of time. The decision seems instead to be focussed on the medical evidence and the Claimant’s personal circumstances that showed that she was capable regularly of pursuing some kind of substantially gainful occupation before the end of the MQP. The fact remains that whatever the Claimant’s efforts to get and keep employment were before the end of the MQP, she returned to substantially gainful work after the end of the MQP. She explained in her disability questionnaire that she was unable to work in 2001. In light of those facts, the General Division did not make an error of law in considering the Claimant’s efforts to get and keep employment.

Did the General Division make an error of fact?

[22] The General Division did not make an error of fact about the Claimant’s attempts to return to work from 2001 to 2005. The evidence from that period of time did not help the Claimant to show that she had a severe disability from the end of the MQP (December 31, 1997) and continuously thereafter. She was working full-time as a cleaner in 2000 until she was injured in 2001. It was after she injured her back while doing that work that she completed the work hardening from 2001 to 2005.

[23] The Claimant argues that the General Division made an important error regarding the facts in her case. The Claimant states that the General Division dismissed her appeal because she had not attempted to return to work after 2001. However, the Claimant states that her file contains countless “clinic-based” attempts to return to work from 2001 to 2005 that were ultimately unsuccessful. She says that these failed attempts resulted in her receiving extended loss of earnings benefits from workers’ compensation.

[24] The Claimant relies on a series of documents in her file about her participation in work hardening in clinical settings rather than on the job.^{Footnote 23} The Claimant argues that these were efforts to return to work. She says the work hardening was required, and that medically she was not supposed to try that process of work hardening in her workplace. The Claimant notes that these employment efforts were ultimately unsuccessful because of her health condition: she received extended earnings loss benefits under workers’ compensation in October 2005. The Claimant argues that the General Division ignored these facts.

[25] In my view, the General Division did not make an error of fact by ignoring the Claimant’s efforts at work hardening from 2001 to 2005. The General Division did state that “there is no indication that the Claimant attempted to return to work or look for alternative employment after March 2001.”^{Footnote 24} The Claimant argues that this was the reason the General Division dismissed her appeal. However, this is not the case. The General Division found that the Claimant could have looked for (and if necessary retrained for) part-time or full-time employment on or before the end of the MQP.^{Footnote 25}

[26] In addition, the General Division did not find that the disability was severe and the time of the MQP and continuously thereafter, because she worked in 2000 and would have continued to do so if she had not experienced a new injury. The General Division mentioned that she did not attempt to return to work or look for alternative employment after March 2001, but that is not why the General Division dismissed the appeal. The General Division dismissed the appeal because the Claimant could not show that her disability was severe at the time of the MQP and continuously thereafter.

[27] To the extent that the General Division did not discuss the evidence from 2001 to 2005, it is not an error of fact because that evidence would not have impacted the outcome of the case. These facts may have had more importance in the workers’ compensation context, but they cannot change the result here in light of the rest of the General Division’s analysis. The work hardening attempts from 2001 to 2005 are not material given the conclusions the General Division already reached about the Claimant’s ability to work during the MQP and the fact that she did work in 2000.

Did the General Division make an error by failing to provide a fair process?

[28] The General Division provided the Claimant with an opportunity to be heard. The General Division did not fail to provide the Claimant with a fair process.

[29] The Claimant argues that the General Division failed to provide a fair process.^{Footnote 26} She notes that the Minister wrote to her in January 2017. The Minister requested additional information from her employer and from workers’ compensation.^{Footnote 27} The Claimant says that in the reconsideration file from the Minister, there is no reference to any reports from June 2002 to January 2004. The Claimant explains that her workers’ compensation file was over 1800 pages long, and that she has documents that it seems the Minister did not.

[30] The Minister argues that they provided their documents to the General Division in the usual way. The Tribunal sent the documents to the Claimant and explained that the attached documents were the only ones currently on file with the Tribunal. The letter explained that in most cases, the parties have a year to send the Tribunal any documents they want the Tribunal to consider. The letter provided next steps for the parties, and the Claimant chose to file some more documents along with a notice of readiness form. The Minister argues that it was the Claimant’s responsibility to submit all the documents she wanted to rely on, so the General Division did not fail to provide her with a fair process.

[31] In my view, the General Division did not make an error here. It seems that the Claimant’s arguments amount to a concern about which reports or documents were before the Minister back when the Minister denied her reconsideration request.

[32] The Claimant is not alleging that the General Division member failed to accept any evidence that the Claimant the member to consider. The argument the Claimant provided would not result in a finding that the General Division failed to give the Claimant the opportunity to make submissions on every fact or factor likely to affect the decision. There is no suggestion here that the General Division took any action that blocked the Claimant’s ability to provide to the Tribunal any documents she believed were missing from the Minister’s file.

Conclusion

[33] The appeal is dismissed.