Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] The Claimant is a former oil refinery worker who was laid off in 2010. She says that she was unable to return to work because of knee problems. Except for a brief and unsuccessful attempt to earn money as a babysitter, she has not worked since. She is now 65 years old.

[3] In October 2016, the Claimant applied for Canada Pension Plan (CPP) disability benefits. In her application, she claimed that she could no longer work because of severe arthritic knee pain, sleep apnea, and Hashimoto’s disease.^{Footnote 1} She said that, although she had undergone left knee replacement surgery 18 months earlier, she continued to experience pain and mobility issues.

[4] The Minister refused the application because, in its view, the Claimant had not shown that she had a severe and prolonged disability during her minimum qualifying period (MQP), which ended on December 31, 2013.

[5] The Claimant appealed the Minister’s refusal to the Social Security Tribunal’s General Division. The General Division held a hearing by teleconference and, in a decision dated March 26, 2018, dismissed the appeal, finding insufficient medical evidence that the Claimant was disabled as of the MQP.

[6] The Claimant then applied for leave to appeal from the Appeal Division. She submitted with her application a large volume of previous undisclosed medical information. She asked the Appeal Division to find her disabled in light of this new information.

[7] One of my colleagues on the Appeal Division granted the Claimant leave to appeal because she saw an arguable case that the General Division had erred in law by requiring medical evidence that directly related to the MQP. The Minister disagreed with this decision and asked the Federal Court to review it.

[8] In a judgment dated November 26, 2020, the Honourable Mr. Justice A.D. Little of the Federal Court found the Appeal Division’s decision granting leave to appeal unreasonable. Justice Little also found that the Appeal Division’s reasons did not contain a transparent explanation of how it reached its conclusions. He set aside the leave to appeal decision and returned the matter to the Appeal Division for redetermination by another member.

[9] I have now reviewed the General Division’s decision and the underlying record. I have concluded that the Claimant has not advanced any grounds that would have a reasonable chance of success on appeal.

Issue

[10] 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 2}

[11] An appeal can proceed only if the Appeal Division first grants leave to appeal.^{Footnote 3} At this stage, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 4} This is a fairly easy test to meet, and it means that a claimant must present at least one arguable case.

[12] I have to decide whether the Claimant has an arguable case.^{Footnote 5}

Analysis

Issue 1: Can the Appeal Division consider the Claimant’s new evidence?

[13] The Claimant submitted with her leave to appeal application 118 pages of medical records from the Sherwood Park Medical Centre. From what I can tell, little, if any, of this material was made available to the General Division when it held a hearing to assess the Claimant’s disability in March 2018.

[14] The Claimant is asking the Appeal Division to consider these new medical documents and find her disabled. Unfortunately, that is not how the Appeal Division works. For an appeal to succeed at the Appeal Division, a claimant must do more than simply disagree with the General Division’s decision. A claimant must also identify specific errors that the General Division made in coming to its decision and explain how those errors, if any, fit into the one or more of the three grounds of appeal.

[15] There is nothing in the law that allows me to consider new evidence, nor is there any way for me to reconsider evidence that the General Division has already considered. I don’t see a reasonable chance of success on appeal for any argument that relies on the admission of fresh medical evidence.

Issue 2: Is there an arguable case that the General Division erred on any other grounds?

[16] The Claimant argues that the General Division dismissed her appeal in the face of evidence showing that she was disabled. I do not see a reasonable chance of success for this argument.

[17] The General Division is tasked with, among other things, establishing the facts, and it is entitled to some leeway in how it chooses to weigh the evidence. In this case, the Claimant told the General Division that knee pain, above all else, prevented her from working. However, as the General Division noted, there was no evidence, other than the Claimant’s subjective testimony, to suggest that the Claimant had a significant knee condition during the MQP.

[18] I see no arguable case that the General Division erred in making this finding. Nearly all of the medical reports on file were dated after the MQP. The only material on file that related to the period before 2014 were test results indicating sleep apnea, which, like Hashimoto’s disease, is a treatable condition.^{Footnote 6} The Claimant underwent knee replacement surgery in March 2015, but that, by itself, did not mean she was prevented from all forms of substantially gainful employment either before or after December 31, 2013.

[19] The General Division found that, without “objective medical evidence” of the Claimant’s knee condition during the MQP, it had no basis to determine whether she was disabled. On this point, I don’t see an arguable case that the General Division erred in law. The burden of proof was on the Claimant, not the Minister, to show that she was disabled.^{Footnote 7} The Claimant told the General Division that her knee prevented her from working before the end of the MQP, but the law says that testimony alone is not enough to establish disability.

[20] The Canada Pension Plan Regulations say that a disability applicant “shall supply” a “report of any physical or mental disability.” The report must include the nature, extent, and prognosis of the disability, the findings upon which the diagnosis and prognosis were made, limitations resulting from the disability, and any other pertinent information, including recommendations for further diagnostic work or treatment, that may be relevant.^{Footnote 8}

[21] Furthermore, a leading case called Villani suggests that CPP disability applicants must back up their claims with reports test results from physicians or other healthcare providers:

[Not] everyone with a health problem who has some difficulty finding and keeping a job is entitled to a disability pension. Claimants still must be able to demonstrate that they suffer from a “serious and prolonged disability” that renders them “incapable regularly of pursuing any substantially gainful occupation.” Medical evidence will still be needed, as will evidence of employment efforts and possibilities [emphasis added].^{Footnote 9}

Many other decisions have since reinforced, and expanded on, this principle.^{Footnote 10}

[22] While the General Division did not arrive at the conclusion the Claimant would have preferred, I cannot, as a member of the Appeal Division, reassess the evidence and make my own determination of whether the Claimant is disabled or not. Instead, my role is restricted to determining whether any of the Claimant’s reasons for appealing fall within the specified grounds of appeal and whether any of them have a reasonable chance of success.

Conclusion

[23] The Claimant has not identified any grounds of appeal that would have a reasonable chance of success on appeal. Thus, the application for leave to appeal is refused.