Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is allowed. The General Division made an error. The case is returned to the General Division for reconsideration.

Overview

[2] A. P. (Claimant) worked as a miner. He had a snowmobile accident and stopped working due to chronic pain in December 2013.

[3] The Minister received the Claimant’s application for a disability pension under the Canada Pension Plan (CPP) on November 30, 2016. The Minister denied the application initially and on reconsideration. The Claimant appealed to this Tribunal.

[4] On May 14, 2019, the General Division dismissed the Claimant’s appeal. The Claimant asked for and received permission (leave) to appeal the General Division’s decision.

[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] In my view, the General Division made an error of law by failing to analyze the evidence about whether the Claimant was capable regularly of pursuing any substantially gainful occupation.

[7] I do not have an audio recording of the hearing at the General Division. Therefore, unfortunately, I do not have what I need to give the decision that the General Division should have given. I return the matter to the General Division for reconsideration.

Issue

[8] Did the General Division make an error of law by failing to consider how the Claimant’s functional limitations might have made him incapable regularly of pursuing any substantially gainful occupation?

Analysis

[9] The Appeal Division does not give people a chance to re-argue their case in full at a new hearing. 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 three possible reasons for (grounds of) appeal.^{Footnote 1}

[10] The DESDA allows the Appeal Division to review errors of law the General Division makes.^{Footnote 2}

Did the General Division make an error of law?

[11] The General Division made an error of law. While the General Division does mention some of the evidence that is relevant to deciding whether the Claimant was incapable regularly, the decision lacks the required analysis about whether the Claimant’s incapacity for work was regular. There is some key evidence about how predictable or reliable the Claimant could be in a work setting, and the General Division failed to analyze that evidence. 

[12] A disability is severe for the purpose of the CPP when a person is incapable regularly of pursuing any substantially gainful occupation.^{Footnote 3} Each part of that definition has meaning. Each part of the definition requires consideration.^{Footnote 4} The General Division must consider not just whether the Claimant was incapable of work, but whether that incapacity was regular.^{Footnote 5} The Federal Court of Appeal has confirmed that “predictability is the essence of regularity within the CPP definition of disability.”^{Footnote 6}

[13] The Claimant argues that the General Division failed to consider whether the Claimant’s incapacity was regular. The Claimant points out that there was evidence in the record about whether he could work predictability or reliability that the General Division did not analyze. The Claimant explains that he gave testimony about the fact that he could not commit to a regular schedule due to depression and pain.

[14] The Claimant notes that there was also evidence from his psychiatrist, Dr. Joseph.^{Footnote 7} Dr. Joseph’s evidence was that the Claimant was only capable of maintaining a range of stressful tasks and matters for short intervals of exposure with pain escalation and fatigue that resulted in decrements in performance with longer exposure or on certain days.^{Footnote 8}

[15] Dr. Joseph concluded that the Claimant’s employability was poor.^{Footnote 9} The General Division did not discuss Dr. Joseph’s report. The Claimant also notes that his occupational therapist, Claudia Maurice, noted that he had no consistency in terms of his ability to follow through on required tasks.^{Footnote 10}

[16] The Minister argues that the General Division did not make an error of law. The Minister notes that the Claimant did not try to return to regular work since his accident in December 2013. As a result, the General Division did not have any evidence about hours of work, absences or sporadic work to consider in order to decide whether the Claimant was “incapable regularly.”^{Footnote 11}

[17] The Minister points out that the General Division decision does mention some of the other evidence that relates to question of whether the Claimant was incapable regularly.^{Footnote 12} The General Division:

• noted that the Claimant “has difficulty with prolonged sitting and standing” and that the Claimant is “unable to keep any sort of routine”^{Footnote 13}
• noted Dr. MacKay’s finding on January 3, 2017 that the Claimant is “easily fatigued”^{Footnote 14}
• noted Dr. Berbrayer’s May 24, 2017 report that the Claimant has significant problems with social adaptation and anger problems with family relationships that would prevent him from doing any job^{Footnote 15}; and
• Dr. Van Reekum’s finding from July 8, 2017 that “[t]he combined impact of his mental health sequelae will pose significant barriers to his ability to attain and maintain competitive employment of any kind in the future”.^{Footnote 16}

[18] The Minister notes that a Tribunal does not have to refer to every piece of evidence before it, and on appeal, we presume that the decision maker considered all the evidence.^{Footnote 17} Therefore, although the General Division did not refer specifically to Dr. Joseph’s report, it is clear from the decision that the General Division considered whether the Claimant was incapable regularly of any substantially gainful occupation.

[19] In my view, the General Division made an error of law. Each part of the test for a severe disability has meaning. The General Division must consider whether the Claimant’s incapacity was regular. This overarching requirement to consider regularity does not change even when the General Division finds a residual capacity for work.

[20] It appears that there was evidence in the record about whether the Claimant would be capable regularly of any substantially gainful occupation, and the General Division ought to have addressed it in the decision. The failure to analyze that question was an error of law.

[21] The General Division is not required to refer to every piece of evidence in the record and the General Division member did state that she considered all of the evidence, even the reports that she did not summarize.^{Footnote 18} The Minister is correct that the General Division member did mention some of the evidence that would be relevant when deciding whether the Claimant was incapable regularly of pursuing any substantially gainful occupation.

[22] However, the error of law arises here not just from the failure to discuss a piece of evidence, but because the decision lacks analysis about part of the test for a severe disability. The decision lacks an analysis of whether the Claimant was incapable regularly of pursuing any substantially gainful occupation. Although the General Division found that the Claimant had some capacity for work, it did not explain how it reached that finding in light of the evidence that strongly suggested that even if the Claimant could do some type of work in theory, he was “incapable regularly” – especially Dr. Joseph’s report.

Remedy

[23] When the General Division makes an error, I can give the decision that the General Division should have given, or I can return the matter to the General Division for reconsideration.^{Footnote 19}

[24] When the record is complete, often giving the decision that the General Division should have given is the most efficient way forward. In this case, unfortunately, I do not have an audio recording of the hearing before the General Division.

[25] The Minister argues that if I find an error, I need to refer the case back to the General Division because I do not have access to the audio recording of the General Division hearing. The Minister points out that the Claimant, at the Appeal Division, referred specifically to his testimony at the General Division hearing. If I find that the General Division made an error, I cannot reach a conclusion about whether the Claimant is entitled to a disability pension. I do not have all the evidence the General Division had.

[26] The Claimant argues that testifying at the General Division was highly stressful in light of his psychological and psychiatric conditions. The Claimant says that sending the case back to the General Division would make his symptoms worse, especially if the Minister’s representative cross-examines him. The Claimant says that this is an exceptional situation in which the Appeal Division should give the decision that the General Division should have given. I could base my decision on the medical records and documents in the file and on and the findings in the General Division’s written decision. This approach would be consistent with the need to be provide fair and efficient justice to the Claimant.^{Footnote 20}

[27] I will return the matter to the General Division for reconsideration. The record is not complete without the recording of the General Division hearing. The Claimant anticipates that returning the matter to the General Division will result in a new oral hearing and possible cross-examination by the Minister’s representative. However, I will leave it to the parties to make any requests in terms of the process on reconsideration at the General Division level.

Conclusion

[28] The appeal is allowed.  I return the case to the General Division for reconsideration.