Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] B. W. (Claimant) worked for many years as an assistant manager at a department store. She stopped working because of pain in her knees, feet and back. She applied for a Canada Pension Plan disability pension and said that she was disabled by these conditions.

[3] 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. It decided that the Claimant did not have a severe disability before the end of the minimum qualifying period (the date by which a claimant must be found to be disabled in order to receive the disability pension) because she retained some capacity to work in less physically demanding jobs.

[4] Leave to appeal this decision to the Tribunal’s Appeal Division is refused. The appeal does not have a reasonable chance of success on the basis that the General Division based its decision on an important factual error. Also, new evidence is not a reason to appeal.

Issues

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

1. That the Claimant quit her job; or
2. That her doctor said that she could not sit for an extended period of time

[6] Does the appeal have a reasonable chance of success because the Claimant has new evidence to present to the Tribunal?

Analysis

[7] An appeal to the Tribunal’s Appeal Division is not a re-hearing of the original claim. Instead, the Appeal Division can only consider 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}

[8] Before the Appeal Division can decide an appeal, the claimant must first obtain leave (permission) to appeal. 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 the Appeal Division can consider and on which the appeal has a reasonable chance of success.

Important factual error

[9] The Claimant says that the General Division based its decision on two important factual errors. To succeed on appeal on this basis, she will have to 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 3}

[10] First, the Claimant says that the General Division’s finding of fact that she quit her job was an important factual error because she did not quit; she is on long-term disability. This may be so. However, the decision was not based on why the Claimant left work, or whether she receives long-term disability payments. Therefore, the appeal does not have a reasonable chance of success on the basis of this error.

[11] Second, the Claimant says that the General Division based its decision on an important factual error because her doctor never said that she could not sit for an extended period of time. The General Division decision states that the family doctor noted that the Claimant could sit for up to 30 minutes.^{Footnote 4} The General Division considered all of the evidence, and concluded that although the Claimant would not be able to return to her last job, nothing in the medical evidence showed that the Claimant had significant problems with sitting.^{Footnote 5}

[12] The decision sets out the evidentiary basis for this finding of fact. Its findings of fact regarding this were not made in error. Therefore, the appeal does not have a reasonable chance of success on this basis.

New evidence

[13] The Claimant also presents new evidence to support her leave to appeal application. New evidence generally is not permitted on an appeal under the DESD Act.^{Footnote 6} Leave to appeal cannot be granted on the basis of presentation of new evidence. ^{Footnote 7}

[14] I have read the General Division decision and the written record. The General Division did not overlook or misconstrue any important information. There is no suggestion that it made an error in law or failed to provide a fair process.

Conclusion

[15] Leave to appeal is refused.