Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is dismissed.

Overview

[2] The Claimant was born in 1969 and holds a Bachelor of Arts degree. She has worked as an insurance agent and as a self-employed mediator. In 2000, she took courses in an unsuccessful attempt to obtain an insurance broker’s license. Three years later, she was injured in a motor vehicle accident (MVA) and since then has experienced increasing neuropathic pain and symptoms from peripheral vascular disease (PVD).

[3] In January 2013, the Claimant applied for a Canada Pension Plan (CPP) disability pension. The Minister refused her application because, in its view, her condition did not amount to a “severe and prolonged” disability during her minimum qualifying period (MQP), which it determined had ended on December 31, 2003.

[4] The Claimant appealed the Minister’s refusal to the Social Security Tribunal’s General Division. It dismissed the appeal in a decision that the Appeal Division later overturned for reasons of procedural fairness. The matter was returned to the General Division for reconsideration.

[5]  The General Division held another hearing and issued its decision on August 22, 2018. Once again, the General Division found that the Claimant was not disabled.

[6] In November 2018, the Claimant notified the Tribunal that she intended to request leave to appeal and asked for an extension in the submission deadline. The Tribunal granted that extension and, on March 15, 2019, the Claimant submitted her reasons for wanting to appeal the General Division’s second decision. In the meantime, she had also applied to rescind or amend that decision on the basis of what she claimed was previously undiscoverable information.^{Footnote 1}

[7] The Appeal Division placed this appeal on hold pending final disposition of the Claimant’s rescind or amend application. That matter came to an end earlier this year, when the Appeal Division upheld the General Division’s finding that there were no new material facts to justify reopening its decision.^{Footnote 2}

The Claimant’s reasons for appealing

[8] The Claimant is alleging that the General Division committed various errors when it decided that she was not entitled to the CPP disability pension, in particular:

1. The General Division held its hearing by videoconference, even though both she and the Minister had asked that it proceed in person;
2. The General Division gave minimal weight to C. D.’s testimony that the Claimant’s vascular disease was genetically-based and that her condition was not properly diagnosed for many years;
3. The General Division gave minimal weight to C. C.’s testimony that the Claimant was experiencing chronic pain as early as 2000;
4. The General Division found that the Claimant had engaged in a “significant amount of volunteer work.” In doing so, the General Division disregarded evidence that her volunteering was minimal and ignored the fact that the applicable legislation does not bar prospective disability applicants from such activity;
5. The General Division placed excessive weight on Dr. Ashfield’s note suggesting that the Claimant began taking Tylenol #3 after the MQP; it also gave inadequate weight to evidence that the Claimant was taking increasing doses of narcotic pain medications before December 31, 2003;
6. The General Division gave inadequate weight to Dr. Ashfield’s note indicating that the Claimant was experiencing insurmountable grief and stress during the MQP; and
7. The General Division presumed, without evidence, the contents of discussions between the Claimant and Dr. Ashfield.

[9] In June, I granted the Claimant leave to appeal because I thought she had an arguable case. Last month, I held a hearing by videoconference to discuss the Claimant’s allegations.

Issue

[10] Under the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division. A claimant must show that the General Division acted unfairly, interpreted the law incorrectly, or based its decision on an important error of fact.^{Footnote 3}

[11] My job is to decide whether any of the Claimant’s allegations have merit.

Analysis

[12] I have reviewed the record and considered the parties’ oral and written submissions. I have concluded that none of the Claimant’s reasons for appealing justify overturning the General Division’s decision.

Issue 1:  Did the General Division act unfairly by holding the Claimant’s hearing by videoconference?

[13] I see no merit in this submission. First, contrary to the Claimant’s submissions, the Minister did not ask for an in-person hearing.^{Footnote 4} In support of this allegation, the Claimant referred to written submissions from one of the Minister’s representatives,^{Footnote 5} but that letter was about another, earlier, proceeding—one in which the Minister conceded that the Claimant had been subject to procedural unfairness.

[14] Second, the Claimant never insisted on an in-person hearing at the General Division, and she indicated in writing that she preferred to proceed either by videoconference or by personal appearance.^{Footnote 6} By holding a videoconference, the General Division did nothing more than agree to the Claimant’s expressed wishes.

[15] At last month’s hearing, the Claimant said that, because she had arranged for three witnesses to testify, she felt “pressured” to proceed. She said that, on the day of the hearing, she was ill from narcotic withdrawal symptoms but wasn’t aware that she had the right to request an adjournment. She wasn’t aware of that right, she alleges, because the Tribunal’s notice of hearing and other correspondence said nothing about it. She argues that, if the General Division hearing had been in person, the presiding member might have realized that there was something wrong with her and offered her an opportunity to request an adjournment.

[16] I listened carefully to the Claimant’s account, but I ultimately came away unconvinced that she was treated unfairly at the General Division. What decided it for me was the fact that, at the time of the hearing, the Claimant was represented by a lawyer. Lawyers are presumed to be competent and, during their retainer, they are presumed to be acting in accordance with their client’s instructions and best interests.

[17] It is certainly possible that the Tribunal’s notices were deficient in failing to inform the Claimant of her right to ask for a postponement or adjournment before or during the hearing. On the other hand, it is not reasonable to expect standardized letters to address every potential problem that might arise in the course of proceedings. Moreover, whatever the notice did or did not say, any experienced lawyer knows that it is always open to a party in a judicial or quasi-judicial proceeding to request a delay, even if there is no guarantee that the request will be granted. I can understand why the Claimant was under the impression that, even though she was feeling unwell, she had no option but to proceed with the hearing. But I find it hard to understand why she would not have shared her distress with her lawyer, who then might have asked for a delay.

[18] As it was, the General Division member, having scheduled the hearing in accordance with what she believed was the Claimant’s preference, had no way of knowing that the Claimant was feeling ill-equipped to proceed.^{Footnote 7} Since her lawyer never raised the matter, I cannot find that the Claimant’s interests were prejudiced by the hearing proceeding.

Issue 2:  Did the General Division commit an error by giving minimal weight to Carol Daviau’s testimony?

[19] One of the Claimant’s witnesses was C. D., her biological aunt. C. D. told the General Division that, like her niece, she suffers from PVD, and that, like her niece, it took a long time (in her case, 24 years) before she was properly diagnosed. She also said that PVD is a genetic disease whose symptoms get progressively worse over time.

[20] The Claimant argues that the General Division missed the point of C. D.’s testimony and focused instead on the irrelevant fact that she and her aunt did not meet until after the MQP. She maintains that this evidence should have logically led the General Division to conclude that, like her aunt, she had suffered from PVD for many years before her diagnosis and was debilitated by it during the MQP.

[21] After reviewing the record, I find myself unable to agree with the Claimant. No one disputes that the Claimant has been diagnosed with PVD or that it has left her increasingly impaired. The issue has always been when, if ever, she became impaired to the point where she could no longer regularly perform substantially gainful employment. In its decision, the General Division described C. D.’s testimony this way:

I also heard evidence from C. D. (the Appellant’s aunt). However, she did not provide any testimony as to the Appellant’s condition or symptomatology in December 2003. In fact, she testified that she first met the Appellant 10-15 years ago (she could not remember the date) and so it is possible that she did not even know the Appellant at the time of the Appellant’s MQP. The reason the Appellant called C. D. as a witness is because the Appellant believes she had peripheral vascular disease for many years before it was diagnosed. Specifically, she believes her symptoms of the disease began in 1998. C. D. spoke of her own history of vascular disease and the fact that it was not diagnosed until November 2014 despite the fact that she had the symptoms of the disease for many years before then. For the purposes of this appeal, I need not determine whether the Appellant in fact had the disease as early as 1998 because the focus of my assessment is on the effect the medical conditions had on the Appellant’s functionality by December 31, 2003 and, in this case, the medical evidence does not indicate that the Appellant was significantly limited before December 31, 2003.

This passage tells me that the General Division was well aware why the Claimant brought her aunt forward as a witness. However, for reasons that it clearly explained, the General Division did not place as much weight on C. D.’s testimony as the Claimant expected or wanted. The General Division did not say that the testimony was completely without value, but it did suggest that what C. D. had to say would have been more meaningful if she had been in a position to describe the Claimant’s condition in 2003–04.

[22] On this point, I don’t see an error in the General Division’s reasoning. The General Division found evidence suggesting that the Claimant’s symptoms did not rise to the level of “severe” as of December 31, 2003. The Claimant may have had PVD as early as the 1990s, but that does not mean she was disabled at that time or, for that matter, at any time afterward. A diagnosis cannot be equated with disability.^{Footnote 8} By all accounts, PVD is a progressive disease. The fact that the Claimant is disabled now says little about whether she was disabled 17 years ago.

[23] While the Claimant may not agree with the General Division conclusions, it is not my role to step in and second-guess its assessment of the evidence unless it has committed an error that falls under one or more of the three grounds of appeal permitted by the law. I see nothing like that here.

Issue 3:  Did the General Division commit an error by giving minimal weight to Charles Crawford’s testimony?

[24] Another witness was C. C., who employed the Claimant as a trainee in his insurance brokerage for approximately a year. C. C. attested to the Claimant’s honesty. He told the General Division that he did his best to accommodate her impairments. He said that she often missed work and ultimately wasn’t able to get through the courses required to become a licensed broker.^{Footnote 9}

[25] The Claimant argues that the General Division should have given more credence to C. C., who witnessed her struggles in the period before she began seeing her current family physician, Dr. Ashfield.

[26] Again, I don’t see merit in this argument. The Claimant is once more criticizing the General Division for how it chose to weigh the evidence, rather than for any error that it may have made under the DESDA. As it happens, the General Division’s decision discussed Mr. Crawford’s testimony at length:

The testimony from C. C. supports a finding that the Appellant was experiencing pain in 2000, but his testimony did not go so far as to suggest that the Appellant was disabled. He said he knew the Appellant was in a fair amount of pain. He also said that he knew she was having problems of some sort (whether physical or mental) but that he did not know the specifics. It is significant that the Appellant did not stop working for him because of her inability to do the tasks she had been doing at that job (filing, referrals and receptionist work). Instead, the job ended because C. C. and the Appellant mutually agreed that the Appellant was not able to complete the courses that C. C. needed her to obtain. My understanding is that the Appellant was expected to do the course work in addition to working full time because the Appellant testified that she could not work full time and study on top of that. […] C. C. testified that the Appellant began working for him in mid-2000 and that she stayed with him for about one year. This means the Appellant’s coaching activities may well have overlapped with her employment for C. C..^{Footnote 10}

I have listened to the recording of the hearing and find that the General Division accurately relayed what C. C. had to say. As long as it avoided committing any factual errors, the General Division was entitled to place what it felt was appropriate weight on C. C.’s testimony. In the above passage, the General Division determined that the Claimant’s job ended largely because she couldn’t pass or complete her courses and not because she was unable to handle her clerical duties. The General Division didn’t deny that the Claimant was experiencing pain at the time, but it also heard indications in C. C.’s testimony that she was still able to regularly perform a substantially gainful occupation. Implicit in this finding was a recognition that there were likely reasons other than impairment to explain why the Claimant did not become a broker and did not continue working in insurance.

Issue 4:  Did the General Division err when it found that the Claimant had engaged in a “significant amount of volunteer work”?

[27] The Claimant strongly disputes the General Division’s finding that she “appears to have been doing a significant amount of volunteer work” over the years. She acknowledges having carried on some of her community service activities in the period leading up to the end of the MQP but feels that those activities should not have been held against her, since volunteering was an integral part of her life for many years. She argues that the General Division focused on her unpaid work while ignoring the bigger picture—which showed that she had given nearly all of it up before December 31, 2003.

[28] Having given the matter considerable thought, I have concluded that the General Division did not mischaracterize the evidence surrounding the Claimant’s volunteer activities.

[29] The Claimant pointed to the Minister’s own Adjudication Framework^{Footnote 11} to argue that volunteer activity, by itself, is a not an indicator of capacity. That statement is true, but it does not support the Claimant’s argument to the extent that she seems to think it does.

[30] The Adjudication Framework is not actually legislation but merely a guideline, used by the Minister’s officials to determining whether applicants qualify for CPP disability benefits. While it attempts to follow the Canada Pension Plan, its regulations, and associated jurisprudence, it does not by itself have the force of law.

[31] Still, on this issue, Adjudication Framework is correct. The leading cases say that, volunteer activity is relevant, but it cannot be the sole basis to deny benefits. As the Claimant notes, volunteering by itself, does not indicate capacity, but it can be used to infer functionality, or lack thereof, if viewed together with other factors.^{Footnote 12}

[32] I see no indication that the General Division based its decision solely on the Claimant’s volunteer activity. The General Division denied the Claimant benefits for a number of reasons, including (i) evidence that many of the Claimant’s medical conditions arose after the MQP; (ii) the absence of compelling signs of disability in Dr. Ashfield’s notes from 2003–04; and (iii) inconsistencies that raised questions about the reliability of the Claimant’s testimony.

[33] That said, the Claimant’s volunteer activity did play a role in the General Division’s reasoning. In its decision, the General Division wrote:

It is also significant that during that time the Appellant appears to have been doing a significant amount of volunteer work. For example, in March 2017 the Appellant wrote that she was a member of the school board (which was a government appointment) and she was a member of the volunteer police association (for which she was appointed by the Chief of Police) and that she had to give these positions up by early 2003. In addition, the Appellant testified that she was a long-time volunteer for a politician and that volunteer work stopped in March 2004. The Appellant also mentioned that she coached her son’s hockey team for a year and a half from 2001 to 2002.^{Footnote 13}

This passage, as far as I can tell, is factually accurate. It matches the Claimant’s testimony that she engaged in at least four unpaid community activities in the last years of her MQP. The Claimant takes issue with the General Division’s description of these activities as “significant,” but I don’t think its use of the word qualifies as an error. The evidence showed that she participated in up to two hockey coaching sessions per week, three school board meetings per month, and a volunteer police association meeting once or twice every month. She also sat on the executive of a major political party’s local riding association. While none of these activities necessarily involved physical exertion on the Claimant’s part, they nevertheless collectively represented a significant investment in time and organizational effort. In its role as finder of fact, the General Division was entitled to assess the available evidence and draw appropriate conclusions from that evidence. It was not an error for the General Division place at least some weight on the Claimant’s fairly robust volunteer schedule.

[34] However, the Claimant also says that the General Division should have placed more weight on the fact that she had given up all of her volunteer activities, with one small exception, by the end of the MQP. That one exception, she says, saw her volunteering past the MQP only because she had to live up to a previous commitment to organize a farewell party for her member of Parliament, who stepped down in early 2004. 

[35] Again, I am not convinced that the General Division committed an error by failing to completely discount the Claimant’s volunteer activities simply because they had largely come to an end by December 31, 2003. It is important to keep in mind the context in which the General Division discussed those activities—in a passage that assessed the testimony of C. C., the Claimant’s employer in 2000–01. C. C. testified that the job ended because the Claimant was unable to complete her insurance broker coursework in addition to working full-time in his office. The Claimant blamed her inability to manage both on her medical condition, but the General Division noted that she had maintained a significant volunteer workload during and after her association with C. C.. I don’t think that it was an error for the General Division to draw a contrast between C. C.’s testimony and evidence indicating that the Claimant an active and busy schedule at a time when she claims to have been increasingly debilitated.

Issue 5:  Did the General Division mischaracterize Dr. Ashfield’s notes about the Claimant’s painkiller consumption?

[36] The Claimant says that she was taking painkillers long before the end of the MQP but was unable to obtain medical to records to prove it. After going without a family physician for some time, Dr. Jane Ashfield eventually took her on. The Claimant argues that the General Division drew the wrong conclusions from Dr. Ashfield’s early office notes. She says that, contrary to the General Division’s findings, the notes do not show that she began taking Tylenol #3 after the MQP. She says that the General Division ignored evidence that Dr. Ashfield first prescribed her with Tylenol #3 in October 2003 and that she began taking increasing doses of narcotic painkillers after that date.

[37] I have reviewed Dr. Ashfield’s notes about the Claimant’s medications and compared them with how the General Division described them. I have concluded that the General Division did not base its decision on any erroneous findings.

[38] Dr. Ashfield first saw the Claimant on October 9, 2003. In her note documenting that visit, she wrote:

last pap 6-7 months ago

cycles Ø3 months

MVA, Jan 28^th, TMJ Dysfn à trying bite plates à Ø surgery, 2º bridge work recently lost cousin – moose accident

– guardian to her kids – may take her 16 year old son

– ++ stress trauma

– worried about Skyler (son)^{Footnote 14}

[39] The Claimant’s next visit occurred on November 20, 2003. Dr. Ashfield noted the Claimant’s complaints of pain in her left thumb and left shoulder. Dr. Ashfield attributed the pain to the Claimant’s MVA, which by then was ten months in the past.

[40] It is clear that, before December 31, 2003, the Claimant was telling her doctor about localized pain resulting from her MVA earlier in the year. However, Dr. Ashfield said nothing at that time about a prescription for Tylenol #3 or any other medication. The first mention of Tylenol #3 in Dr. Ashfield’s notes came after the third visit, January 27, 2004:

Thumbs no better – using T3s Ø2 days

Reviewed Dr. Richardson’s letter à to plastics^{Footnote 15}

[41] From that point on, Dr. Ashfield mentioned Tylenol #3 on numerous occasions. The General Division summarized these notes as follows:

The Appellant’s representative submits that it is significant that the Appellant began using Tylenol N^o. 3s within a very short time of seeing Dr. Ashfield. I disagree. Dr. Ashfield first mentions Tylenol N^o. 3s in her note of January 27, 2004, but there is no indication that the medication was being used for generalized chronic pain. In fact, Dr. Ashfield suggests that the Tylenol N^o. 3s were being used for thumb pain because she says “Thumb no better – using T3’s” and Dr. Ashfield then referred the Appellant to Dr. Lalonde. (Dr. Ashfield’s note of November 20, 2003 indicates that the Appellant had hurt her left thumb in a motor vehicle accident (MVA) of January 2003. The Appellant has not argued that her left thumb injury contributed, in any significant way, to her disability). Dr. Ashfield mentioned Tylenol N^o. 3s again in her note of May 7, 2004 but she seems to attribute their use to sinus symptoms and headaches because she wrote “Sunday – glands swollen, headaches – using T#3.” The first mention of sinus problems and headaches is on April  30, 2004, and that note suggests that the related symptoms had started three weeks earlier (after the MQP) because Dr. Ashfield wrote: “Sick x 3 weeks. Headache new”.^{Footnote 16}

[42] This passage strikes me as a thorough and accurate assessment of Dr. Ashfield’s office notes. To be sure, the General Division drew conclusions that went against the Claimant, but I don’t think those conclusions went too far. The General Division explained, in logical terms, why it thought the absence of any mention of Tylenol #3 in either of the notes before December 31, 2003 likely meant that the Claimant was not, in fact, taking a narcotic painkiller at that time. The General Division also explained why it was significant, when Dr. Ashfield did prescribe Tylenol #3, that she did so, not for generalized pain, but for localized pain only.

[43] I note that the Claimant seemed to confirm the General Division’s interpretation of events during the hearing. After the Claimant testified that she had ongoing thumb and shoulder pain from her MVA, there was this exchange between the Claimant and her lawyer:^{Footnote 17}

Lawyer: And then shortly thereafter on January 27, 2004 you saw your doctor again because you were still in pain and you began taking prescribed pain medication. Is that correct?

Claimant: Tylenol #3.

Lawyer: Okay. So basically within a month or so of seeing a doctor, you started taking pain meds?

Claimant: Yes.

Although the General Division didn’t rely on this testimony, it suggests that the Claimant didn’t start taking narcotic pain medication until the beginning of 2004. It also corresponds with the General Division’s finding that, when she began taking Tylenol #3, she did so for localized pain only.

[44] As before, the General Division was within its authority as finder of fact to draw defensible conclusions from the available evidence. In this instance, I see no indication that the General Division mischaracterized Dr. Ashfield’s notes or, as the Claimant suggests, selectively considered the material before it.

Issue 6:  Did the General Division give inadequate weight to the Claimant’s grief?

[45] The Claimant alleges that the General Division gave inadequate consideration to evidence that, during the MQP, she was “taking increasing amount of narcotics and facing insurmountable grief in addition to dealing with debilitating pain.”^{Footnote 18}

[46] I don’t see a case here. A decision-maker is presumed to have considered all the material before it, and does not need to refer in its reasons to each and every item of evidence.^{Footnote 19} That said, the General Division was aware of the Claimant’s bereavement in the period leading up to December 31, 2003, mentioning her “grief from the loss of her cousin with whom she was very close.”^{Footnote 20} As well, the General Division devoted attention to Dr. Ashfield’s October 2003 office note, which discussed, along with various physical complaints, the Claimant’s stress and psychological trauma associated with the death of her cousin and the prospect of assuming care over her cousin’s son.

[47] The Appeal Division cannot overturn a decision simply because it disagrees with the General Division’s assessment of the material before it. The General Division has the right to consider evidence as it sees fit, so long as it does not base its decision on a factual error. In the absence of such an error in this instance, I am unwilling to revisit how the General Division chose to weigh the Claimant’s grief-related stress.

Issue 7:  Did the General Division presume the contents of discussions between the Claimant and her family doctor?

[48] The Claimant objects to inferences that the General Division drew from her family doctor’s office notes. In particular, she alleges that the General Division had no basis to assume that her January 2004 consultation with Dr. Ashfield concerned only her thumb injury. “Since [the member] was not present during those visits, [she] cannot presume or assume what Dr. Ashfield or myself may or may not have discussed.”^{Footnote 21}

[49] I don’t find this argument persuasive. Dr. Ashfield is a trained professional whose job, in large part, involves accurately documenting her patients’ medical problems. Like everyone else, physicians occasionally makes mistakes, but I think it is reasonable to assume that their notes are generally reliable.

[50] For that reason, I do not think the General Division erred in relying on Dr. Ashfield’s office notes. They were the only available medical information that originated during the MQP. They were written by a physician who was well positioned to comment on the Claimant’s overall health. As we have seen, the General Division accurately summed up the contents of Dr. Ashfield’s notes, which documented in some detail what the Claimant was saying over several consultations in late 2003 and the first half of 2004. The notes indicate that the Claimant complained of a variety of ailments, including headaches, shoulder and thumb pain, and temporomandibular joint dysfunction, but they do not disclose the kind of generalized pain and exhaustion that later formed the basis of her application for disability benefits. In this context, it was not unreasonable for the General Division to infer that the Claimant started using Tylenol #3 to address localized pain. It was also not unreasonable for the General Division to find that Dr. Ashfield did not prescribe the Claimant with Tylenol #3 until January 2004, when the painkiller was first mentioned in her notes. The Claimant denies these findings, but the General Division was only following the evidence where it led. I see no indication that it made illogical or unsupportable presumptions along the way.

Conclusion

[51] For the reasons discussed above, the Claimant has not demonstrated to me that the General Division committed any errors that fall within the permitted grounds of appeal.

[52] The appeal is therefore dismissed.