Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The General Division made an important factual error so the Appeal Division must intervene.

[2] The decision that the General Division should have given is made: the appeal is dismissed.

Overview

[3] P. D. was born in Granada and came to Canada as a child. She completed high school and obtained a diploma in Early Childhood Education. She has worked in a number of jobs, including running a licensed home daycare and in administrative positions. The Claimant last worked as an employee at a daycare. She applied for a Canada Pension Plan disability pension in September 2017 and claimed that she was disabled by tinnitus in one ear.

[4] The Minister of Employment and Social Development refused the application. The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division dismissed the appeal because it decided that the Claimant did not have a severe disability.

[5] The General Division erred because it based its decision on an important factual error regarding treatment for her eye hemorrhage. When this error is corrected, however, the same decision is reached. The appeal is dismissed because the Claimant’s disability was not severe. 

Issues

[6] Was the General Division biased?

[7] Did the General Division base its decision on an important factual error regarding drainage of the Claimant’s eye?   

[8] If so, what remedy should the Appeal Division give?   

Analysis

[9] The Department of Employment and Social Development Act (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; made an error in law; or
3. Based its decision on an important factual error.^{Footnote 1}
4. The Claimant’s grounds of appeal are considered in this context below.

Bias

[10] One ground of appeal the Appeal Division can consider is whether the General Division failed to provide a fair process to a party because it was biased. The Supreme Court of Canada teaches that the legal test for bias is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly".^{Footnote 2}

[11] The Claimant made two arguments regarding the General Division being biased. First, the Claimant argued that the General Division was biased, had prejudged the appeal and interpreted the evidence so that it supported its conclusion. She argued that if the evidence is considered objectively the Tribunal would conclude that the Claimant was disabled.

[12] I have read the General Division decision, all of the documents that have been filed with the Tribunal and listened to the General Division hearing recording. The Claimant did not refer to any specific comments made by the General Division that showed bias. At the hearing, the General Division member was courteous. His questioning was thorough. Although he interrupted the Claimant on a few occasions, he did so only to finish asking a question, or to seek clarification of the Claimant’s evidence.^{Footnote 3} The General Division Member’s questions did not show any bias. A reasonable person viewing the matter realistically would not conclude that the Member was biased.

[13] The General Division also considered all of the evidence, weighed it and made a decision based on the facts and the law. The decision summarizes the Claimant’s testimony,^{Footnote 4} which supported her claim. It also summarized the written evidence.^{Footnote 5} The decision explains why less weight was given to the Claimant’s testimony (there were no medical opinions that the Claimant’s conditions were severe and there were inconsistencies in her testimony). This shows that the General Division impartially considered the evidence that was presented to it.

[14] Second, the Claimant argued that she was not able to fully express herself at the hearing and so the General Division failed to provide her with a fair process. The appeal fails on this basis also. The Claimant was represented by counsel at the General Division hearing. The Claimant answered all of the questions posed by her counsel. She gave detailed answers. She was able to fully answer all questions put to her by counsel. After the Claimant’s counsel had asked all her questions, the Tribunal Member asked questions. Again, the Claimant answered his questions fully, and was given ample opportunity to do so.

[15] Therefore, the appeal fails on the basis that the General Division was biased or otherwise failed to provide a fair process.

Important factual error

[16] Another ground of appeal that the Appeal Division can consider is whether the General Division based its decision on an important factual error. To succeed on appeal on this basis, the Claimant 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 6}

[18] At the Appeal Division hearing the parties agreed that this is an error on which the Appeal Division should intervene.

[19] For these reasons I am persuaded that the General Division erred under the DESD Act. The Appeal Division must intervene on this basis.

Remedy

[20] The DESD Act sets out what remedies the Appeal Division can give when an appeal is allowed. The Claimant argued that the Appeal Division should give the decision that the General Division should have given if it found that the Claimant was disabled, and otherwise that the matter should be returned to the General Division for a completely new hearing.

[21] The Minister did not take a strong position on what remedy the Appeal Division should give.

[22] It is appropriate for the Appeal Division to give the decision that the General Division should have given. This is not because of what the decision will be. Rather, it is because the written record is complete, the facts are not disputed, the legal issue to be decided is straightforward and all parties have addressed it orally and in writing.

[23] In addition, The DESD Act says that the Tribunal can decide any question of law or fact that is necessary to dispose of an appeal.^{Footnote 9} The Social Security Tribunal Regulations also state that the Tribunal must conduct proceedings as informally and quickly as the circumstances and considerations of fairness and natural justice permit.^{Footnote 10}

[24] Finally, the Claimant applied for the disability pension in 2017 so there has been some delay in concluding this matter. Further delay would be incurred if the matter were referred back to the General Division for reconsideration.

The facts

[25] The relevant facts are summarized as follows:

1. The Claimant finished Grade 12 and obtained an Early Childhood Education diploma;
2. The Claimant has worked in office jobs, and ran her own licensed daycare business;
3. The Claimant last worked in a daycare and was laid off in January 2017;
4. The Claimant then collected regular Employment Insurance benefits and stated that she was ready, willing and able to work while doing so;
5. In 2018, the Claimant volunteered at a nursing home two days each week, for one or two hours each day, to find out if she could work in this field. She stopped this when her right eye hemorrhaged;
6. The Claimant has had dizziness and other symptoms from anemia since she was in her 20s;
7. The Claimant has had hearing loss for many years, and was able to work with this;
8. In December 2016, or January 2017 the Claimant’s tinnitus in her right ear worsened and she says interfered with her ability to communicate;
9. The Claimant also has difficulties with concentration, focus and sleep as a result of the tinnitus;
10. In June or July 2018, the Claimant’s right eye hemorrhaged. She has seen her doctor about this and is waiting for further testing because it is not healing properly. As a result, vision in this eye is blurry;
11. The Claimant is restricted in what she can do because of her conditions. She cannot us a lawnmower, jog or swim. She can do some housework, assist with groceries and walk her dog. She drives only short distances because of loss of vision in her right eye and concentration difficulties;
12. The Claimant’s doctor prescribed pills to help the Claimant sleep. She tried them, but felt disoriented when she took them. She no longer takes them, and did not discuss alternative medication with her doctor;
13. The Claimant was referred to a psychiatrist. She began to see him monthly, and now continues to see him every other month. He helps her with anxiety. She takes no medication and has not been referred to any other treatment for this condition.
14. The Claimant’s doctor has told her that there is no treatment for her tinnitus;
15. The Claimant had a breast health issue that was treated conservatively, and has also recovered from cervical surgery;
16. The Claimant’s MQP is December 31, 2019.

Analysis

[26] To be disabled under the Canada Pension Plan a person must have a disability that is both severe and prolonged. A disability is severe if it renders the person incapable regularly of pursuing any substantially gainful occupation. It is prolonged if it is long continued and of indefinite duration.^{Footnote 11}

[27] It is clear that the Claimant has had limitations for a number of years. She has been anemic since she was in her 20s. This results in dizziness, nausea and other symptoms.^{Footnote 12} There was no evidence that this condition has changed.

[28] The Claimant was able to work for many years in spite of this condition – she testified that she worked her way through college and has worked since age 20. The Claimant has worked in an office environment, running her own licensed daycare business (after obtaining provincial and municipal licensing), and as a daycare employee despite this condition. The Claimant’s anemia is not a severe disability.

[29] The Claimant testified that she has had tinnitus for many years as well, but that this became much work in December 2016/January 2017, which resulted in her inability to continue to work. However, the Claimant does not take any medication for her conditions and does not have any assistive devices such as a hearing aid/sound masking device. Rather, the Claimant’s doctors have told her that there is no treatment for this condition. In addition, although the Claimant says that the tinnitus interferes with her ability to communicate with others, there is no suggestion of this in any of the medical reports.

[30] In fact, in June 2017, the ear, nose and throat specialist wrote that there was no treatment for tinnitus and a hearing aid is not yet necessary.^{Footnote 13} This opinion did not change in 2018.^{Footnote 14} There was no evidence of any accommodations given to the Claimant for this at work or in her volunteer position. No accommodations were requested or required at the General Division hearing. In fact, at the General Division hearing the videoconferencing technology failed, and the parties agreed to continue the hearing by telephone with no impact on the quality of the evidence given.^{Footnote 15} At no time during the hearing did the Claimant ask her counsel of the General Division Member to repeat a question because she could not hear it. All of her answers to questions were responsive, indicating that she heard and understood the questions.

[31] The Claimant was also examined by the Centre for Addiction and Mental Health. The report states that the Claimant presented with symptoms that may suggest tinnitus and do not allow her to function. She did not meet the criteria for any other medical condition.^{Footnote 16} However, this centre did not test the Claimant for tinnitus and relied on her report regarding the symptoms for this, so it is given less weight.

[32] Based on all of the evidence, including the Claimant’s testimony and her doctors’ reports I find that although the Claimant may have some limitations from tinnitus, this condition does not result in an incapacity regularly to pursue any substantially gainful occupation.

[33] The Claimant also testified about a lack of focus and ability to concentrate. However, I accept and adopt the General Division’s reasons and finding that there were inconsistencies in her testimony. As a result, I give less weight to this evidence. The Claimant’s medical reports do not refer to these limitations. These things did not result in any incapacity regularly to pursue any substantially gainful occupation.

[34] I accept that the Claimant has some difficulties with sleep. She tried one medication that made her feel disoriented so she stopped taking it. However, she did not speak with her doctor about other sleep remedies, nor has she tried any apart from the prescription. She has not been referred to a sleep clinic. This condition is not a severe disability.

[35] Finally, the Claimant had a right eye hemorrhage that has not yet healed. As a result, her vision is blurred in one eye. However, she does not claim that this is a disabling condition. In addition, she is waiting for further testing and perhaps treatment for this. It is not a severe condition.

[36] The Federal Court of Appeal teaches that when deciding if a person is disabled, the Tribunal must use a “real world approach.”^{Footnote 17} This means that all of her conditions must be examined,^{Footnote 18} as well as her personal circumstances including age, education, language skills and work and life experience.^{Footnote 19}

[37] This Claimant was 54 years of age, has a post-secondary education, and skills from working in a daycare, in office settings and running her own business. She thus has transferrable skills. She has no language barriers. While her age might make it a bit more difficult to obtain work, this is minimized when considered along with her educational and experiential aptitudes. These factors do not assist the Claimant.

[38] I have considered the cumulative impact of all of the Claimant’s conditions and her personal circumstances. She does not have a severe disability under the Canada Pension Plan.

[39] Because I have found that the Claimant’s disability was not severe, I need not consider whether it was prolonged.

Conclusion

[40] The appeal is dismissed.