Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is allowed.

[2] The matter is referred back to the General Division for reconsideration.

Overview

[3] S. S. (Claimant) earned a number of university degrees and speaks six languages, including English and French. She last worked as an executive administrative assistant. She left this job after she collapsed at work twice and was harassed.

[4] The Claimant applied for a Canada Pension Plan disability pension. She claims that has a number of conditions, including heart conditions, sleep apnea, depression, and other mental health illnesses. The Minister of Employment and Social Development refused the application. The Claimant appealed this decision to the Social Security Tribunal (Tribunal). The Tribunal’s General Division dismissed the appeal. It decided that the Claimant’s conditions, considered alone or together, were not a severe disability before the end of the minimum qualifying period (MQP- the date by which a claimant must be disabled to receive the disability pension).

[5] Leave to appeal this decision to the Tribunal’s Appeal Division was granted. The appeal had a reasonable chance of success because the General Division may have based its decision on an important factual error. I have now considered the parties’ oral and written arguments, the General Division decision, and the written record. The appeal is allowed because the General Division based its decision on important factual errors. The matter is referred back to the General Division for reconsideration.

Preliminary matter

[6] The Tribunal had not provided the parties with a copy of the General Division hearing recording before the Appeal Division hearing. At the hearing, the Claimant argued that the General Division decision failed to consider the Claimant’s testimony and that her testimony provided a very different perspective on the written evidence than what was set out in the General Division decision. The hearing was adjourned to allow the Tribunal to investigate why the General Division hearing recording had not been provided to the parties.

[7] The investigation revealed that there is no recording of the General Division hearing. The parties were given time to file written submissions about there being no hearing recording and its impact on the appeal. I considered those submissions in making this decision.

Issues

[8] Did the General Division base its decision on at least one of the following important factual errors:

1. It stated that the Claimant was not depressed;
2. It failed to consider the Claimant’s husband’s evidence; or
3. It failed to consider medical reports that stated that the Claimant was incapable of working (reports by Dr. Kyrollos, Dr. Vania, and Dr. O’Donnell).

[9] Did the General Division fail to provide a fair process because it did not record the General Division hearing?

Analysis

[10] An appeal to the Tribunal’s Appeal Division is not a rehearing of the original claim. Instead, the Appeal Division can only 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;
3. made an error in law; or
4. based its decision on an important factual error.^{Footnote 1}

Important Factual Errors

[11] For an appeal to succeed based on an important factual error, the Claimant must prove three things:

1. that a finding of fact was erroneous (wrong);
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 2}

The claimant’s depression

[12] The General Division decision states that the Claimant was not depressed, taking any medication, or receiving treatment for depression at the time of the hearing or at the end of the MQP.^{Footnote 3} The Claimant argues that this was an important factual error. She points to her diagnosis of depression.^{Footnote 4} She also argues that the General Division disregarded her testimony that she was suicidal.

[13] Dr. Khan’s report states that the Claimant had a depressive reaction to events at her workplace. In addition, Dr. Vania diagnosed the Claimant with depression and post-traumatic stress disorder (PTSD).^{Footnote 5} PTSD is not referred to in the General Division decision. The General Division failed to consider this when it concluded that the Claimant did not have mental health illness. Therefore, the finding of fact that the Claimant was not depressed was wrong and made without regard to all of the evidence that was presented to the General Division. The decision was based on this finding of fact.

[14] The General Division decision also states that the Claimant was not taking medication for depression. The Claimant argues that this is also an important factual error. She says that she testified that she cannot take this medication because it affects her liver. Again, the General Division failed to consider this evidence.

[15] Finally, the Claimant says that the General Division statement that she was not receiving psychotherapy was also an important factual error because her family doctor provided counselling. The Claimant attending counselling with her family doctor may not be what medical professionals call psychotherapy. However, this is mental health treatment. Therefore, the General Division’s statement that the Claimant was not receiving treatment for mental health is a finding of fact that is wrong.

[16] This finding of fact was made without regard for the evidence that the Claimant was attending counselling with her family doctor. The decision was based, at least in part, on the finding of fact that the Claimant’s mental health was not being treated. Therefore, the finding of fact that the Claimant was not receiving mental health treatment is an important factual error.

[17] The appeal is allowed because the General Division made important factual errors about the Claimant’s depression.

Medical reports that state that the claimant cannot work

[18] The Claimant also argues that the General Division made an error because it failed to consider three medical reports that stated that she could not work. The first report was written by Dr. Kyrollos in 2020.^{Footnote 6} It states that the Claimant was referred to him in January 2020. This is just after the end of the MQP (which is December 31, 2019). The report outlines the Claimant’s physical conditions, including heart conditions, asthma, abdominal pain, and gastroesophageal reflux disease. The doctor concludes that the Claimant cannot work because of her conditions.

[19] The General Division considered this report. The General Division decision states that it did not put much weight on it because the doctor is not a psychiatrist or psychologist so cannot give an opinion about the Claimant’s inability to work due to her mental health illness. However, the report makes no comment on the Claimant’s mental health. Although this doctor concludes that the Claimant cannot tolerate the physical or emotional stress of work, the body of the report deals only with her physical conditions. Therefore, the finding of fact that Dr. Kyrollos made a conclusion about the Claimant’s mental health was wrong. It was made without regard for all of the material that was in the report. The decision was based, at least in part, on this finding of fact. Therefore, the appeal is allowed on this basis as well.

[20] The second report is written by Dr. Vania, a psychiatrist.^{Footnote 7} It is dated November 2019, which is also close to the end of the MQP. It concludes that the Claimant has PTSD, moderate depression, anxiety, and a sleep disorder. She also has physical conditions. Dr. Vania concluded that the Claimant is unable to work, and her prognosis is guarded.

[21] The General Division decision considered this report. The decision states that the report was prepared for litigation, that the doctor did not treat the Claimant, and that the report was mostly based on what the Claimant said.^{Footnote 8} The General Division did not place much weight on this evidence for these reasons. It made no error in doing so.

[22] It is for the General Division to accept all of the evidence, weigh it, and make a decision based on the law and the facts. However, a medical report should not to be discounted only because it was prepared for litigation. While this may inform the context within which the report was generated, it does not automatically mean that the report is biased or otherwise without merit. Nothing in this report suggests that Dr. Vania was biased or that her conclusions were not based on the information that was before her. So, it should not be discounted only because it was produced for litigation.

[23] However, the General Division decision also states that it discounted this evidence because the doctor did not treat the Claimant, and his opinion was based on the Claimant’s self-report. The General Division made no error when it gave little weight to this medical report for these reasons.

[24] The third report was prepared by Dr. O’Donnell. He also concluded that the Claimant was unable to work because of her conditions.^{Footnote 9} The Claimant argues that the General Division ignored this doctor’s evidence. However, the General Division considered it. The decision specifically refers to this doctor’s statement that her tachycardia was under investigation and was a severe condition.^{Footnote 10} The decision also states that this doctor did not mention any mental health illness in the medical report that accompanied the disability pension application.^{Footnote 11} The General Division made no error in this regard.

Other Issues

[25] The Claimant presented arguments based on other grounds of appeal. However, since I have found that the appeal must be allowed for the reasons set out above, I do not need to address them.

Remedy

[26] If the Appeal Division finds that the General Division did commit an error, it can provide a remedy for it. The Appeal Division has the power to:

1. give the decision that the General Division should have given;
2. refer the case back to the General Division for reconsideration; or
3. confirm, rescind, or vary the General Division’s decision.^{Footnote 12}

[27] This appeal is referred back to the General Division for reconsideration. There is no recording of the General Division hearing. This is not an error on which the Appeal Division can intervene. However, the Claimant emphasized in her submissions at the Appeal Division that her testimony was crucial to provide context and supplement the written evidence. The Appeal Division does not have this evidence. Therefore, it cannot properly assess the evidence as a whole and make a decision on the disability claim.

Conclusion

[28] The appeal is allowed.

[29] The matter is referred back to the General Division for reconsideration.

[30] To avoid any possibility of an apprehension of bias, the matter is referred to a different General Division member.