Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

Overview

[2] The Claimant owns a tanning salon. She worked there full-time until May 2013, when she says back pain forced her to quit. She maintains that her attempts to return to work have all been unsuccessful.

[3] The Claimant is now 51 years old. In March 2018, she applied for a Canada Pension Plan (CPP) disability pension. She claimed that she could no longer work because of chronic back pain, caused by degenerative disc disease, with disc herniation and severe sciatica.

[4] The Minister refused the application because, in its view, the Claimant’s condition did not amount to a “severe and prolonged” disability during her coverage period.^{Footnote 1}

[5] The Claimant appealed the Minister’s refusal to the Social Security Tribunal’s General Division. It held a hearing by teleconference and, in a decision dated January 26, 2021, dismissed the appeal. It found that Claimant had not provided enough evidence to show that she was regularly incapable of pursuing a substantially gainful occupation before February 28, 2014.

[6] The Claimant requested permission to appeal from the Tribunal’s Appeal Division. She alleged that the General Division committed the following errors in arriving at its decision:

• It discounted her witness evidence in favour of so-called “objective” statements from her doctors about her work activities and functional abilities; and
• It placed undue weight on her more than $20,000 in earnings for 2017, while disregarding earnings in other years that were far from substantially gainful.

[7] Earlier this year, the Appeal Division granted the Claimant permission to proceed because it thought she had an arguable case. Last month, I held a hearing by teleconference to discuss the Claimant’s allegations in full.

[8] Now that I have heard submissions from both parties, I have concluded that the Claimant’s allegations do not justify overturning the General Division’s decision.

Issues

[9] There are only three grounds of appeal to the Appeal Division. A claimant must show that the General Division

• did not follow procedural fairness;
• made an error of law; or
• based its decision on an important factual error.^{Footnote 2}

[10] My job was to determine whether either of the Claimant’s allegations fell into one or more of the permitted grounds of appeal and, if so, whether any of them had merit.

Analysis

Issue 1: The General Division did not make an error by favouring “objective” medical evidence over the Claimant’s witness statements

[11] The Claimant alleges that the General Division erred in law by giving more weight to evidence from her doctors than from her witnesses. She says that statements about her work activities and functional limitations are no more “objective” when they come from medical reports than when they come from her friends, family, or work associates. She notes that, while the General Division discounted written statements from K. T. and T. K. because they could not be cross-examined, it did not similarly penalize reports by the Claimant’s treatment providers, even though they couldn’t be cross-examined either.

[12] The Claimant has raised an interesting point. Unfortunately, I can’t find much merit in it. I come to this conclusion for the following reasons.

The General Division is entitled to weigh the evidence

[13] The Claimant herself submitted all of the medical evidence on file. Some of it supported her argument that she became disabled before February 28, 2014. However, as the General Division noted, it also contained repeated suggestions that she continued to work after that date:

• In November 2014, Dr. Manson wrote that the Claimant “acknowledges that she has returned to work” and “finds it challenging but she is working”;^{Footnote 3}
• In November 2014, Dr. Reid wrote that the Claimant “continues to work running her tanning salon & putting in full days”;^{Footnote 4}
• In November 2014, Dr. Reid wrote that the Claimant “is working prolonged hours in her tanning bed salon”;^{Footnote 5}
• In June 2015, Dr. Reid wrote that the Claimant “is able to work regularly”;^{Footnote 6}
• In December 2015, Dr. Reid wrote that the Claimant “continues to work and is stable”;^{Footnote 7}
• In July 2016, Dr. Reid wrote that the Claimant “continues to run her tanning bed salon 7 days/week so doesn’t have time to come in to see the doctor to get her blood work done”;^{Footnote 8}
• In June 2017, Dr. Reid wrote that the Claimant “does admit to working 70 hours/week in her tanning booth business, as her husband, due to an accident is not employed full time”;^{Footnote 9}
• In September 2017, Dr. MacDonald wrote that the Claimant “is working long hours at the salon” and “managing well at work and continues to keep herself mobile.”^{Footnote 10}

[14] The Claimant, backed by her witnesses, denied that she worked significant hours after May 2013. She said that she sometimes went to her salon but only for “social visits.” Asked about the repeated references in her file to her working long or regular hours, she testified that

• her medical records did not accurately reflect what she told her doctors;
• her doctors might have confused the salon’s working hours with actual work;
• her husband worked at the salon and was responsible for its day-to-day operations; and
• her husband received pay for his work, but it was recorded in the Claimant’s name for tax reasons.

[15] Faced with conflicting or inconsistent evidence, the General Division chose to rely on doctor’s reports over witness testimony. I can’t see how the General Division erred in doing so.

[16] One of the General Division’s roles is to establish facts. In doing so, it is entitled to some leeway in how it weighs evidence. The Federal Court of Appeal addressed this topic in a case called Simpson,^{Footnote 11} in which the claimant argued that the tribunal attached too much weight to selected medical reports. In dismissing the application for judicial review, the Court held:

[A]ssigning weight to evidence, whether oral or written, is the province of the trier of fact. Accordingly, a court hearing an appeal or an application for judicial review may not normally substitute its view of the probative value of evidence for that of the tribunal that made the impugned finding of fact.

[17] In this case, the General Division made what strikes me as a full and genuine effort to sort through the relevant evidence to assess its quality. I see no reason to second-guess its choices, especially since it offered considered reasons for those choices.

The General Division had good reasons for favouring medical evidence over witness testimony and statements

[18] The General Division provided a clear explanation for favouring certain items of evidence over others:

Further, I do not accept the submission that the evidence of five witnesses should outweigh the objective medical evidence. The Claimant, her husband, and her daughter are not truly objective witnesses. The written evidence from K. T. and T. K. was very brief, was given in 2021, and could not be cross-examined. Further, K. T. eventually got to know the Claimant’s husband and S. J. “very well,” and T. K. was a client before she started working at the salon. I place much more weight on the contemporaneous, consistent, and objective evidence from the Claimant’s doctors. In 2018, the Claimant also said remembering things was difficult when her pain was bad. Medications also made her memory bad.^{Footnote 12}

[19] Here, the General Division explained why it gave more weight to the medical evidence than to the witness statements. First, the medical evidence was contemporaneous—it was prepared, not five or six years after the fact, like the witness statements, but at the time the Claimant was describing her daily activities to her doctors. Second, it was consistent—it contained, not just one or two isolated notes about the Claimant’s work, but several, and they all told, more or less, the same story: that the Claimant was working hard in her tanning salon.

[20] The Claimant objects to the General Division’s use of the word “objective” to describe her treatment providers’ remarks about her work activities.^{Footnote 13} She says that such evidence is “second-hand” because her doctors are doing nothing more than relaying what she told them. She argues that, since doctors’ notes are vulnerable to errors of memory, interpretation, and transcription, they are just as unreliable as any other form of hearsay evidence.

[21] I agree with the Minister that this is largely a question of semantics. It is true, as the Claimant says, that physician histories are subject to error and, in that sense, can be distinguished from purely quantitative medical evidence such as blood or urine test results. I suspect the General Division was attempting to say that clinical notes can be trusted because physicians generally do not have a relationship with their patients other than a professional one: unlike a friend, relative, or subordinate, they do not have any interest in the success of a disability claim.

[22] Moreover, there is a significant difference between written statements prepared by witnesses involved in judicial or quasi-judicial proceedings and those prepared by physicians in the ordinary course of their practice. The latter are professionals, trained to document what they hear, see, and do in the course of their duties. There is a strong presumption that their records are accurate.

[23] The General Division would have been better advised to use the word “disinterested,” rather than “objective,” but I don’t think its somewhat misleading choice of words can be called an error.

Doctors’ reports and clinical notes are exceptions to the hearsay rule

[24] The Claimant calls medical histories hearsay because they are not subject to cross-examination. The Claimant acknowledges that she herself submitted written hearsay statements that she hoped the General Division would rely on. She accuses the General Division of applying a double standard by favouring one form of hearsay over another.

[25] The Claimant ignores the reality that the General Division is not a court but an administrative tribunal. Its procedures are relatively informal and relaxed, and it may accept hearsay evidence. The Federal Court of Appeal said so explicitly in a case called Caron: “Boards of referees [predecessors of the General Division] are not bound by the strict rules of evidence applicable in criminal or civil courts and they may receive and accept hearsay evidence.”^{Footnote 14}

[26] Even courts make exceptions for certain types of hearsay evidence. The business records exception to the rule against hearsay evidence has long permitted the admission of documents containing second-hand statements if they were produced in the ordinary course of business.^{Footnote 15} This exception includes medical records containing second-hand statements so long as they were prepared in the ordinary course of a physician or nurse’s duties.^{Footnote 16}

[27] In short, even if the General Division were bound by the rules of evidence (which it is not), it still would not have erred in relying on statements in the clinical notes that would otherwise be classified as hearsay.

Issue 2: The General Division did not place undue weight on the Claimant’s 2017 earnings

[28] The Claimant alleges that the General Division based its decision on a perverse or capricious finding of fact by assigning too much weight to her 2017 earnings. She says that the General Division didn’t pay enough attention to the fact that her recorded earnings after 2012 were all well below the substantially gainful thresholds for their years.

[29] I disagree.

[30] The General Division was well aware of the Claimant’s recent earnings history and went as far as reproducing a summary of it in its decision:

[31] It is true that the General Division focused on the Claimant’s 2017 earnings, but it did so for good reason. Those earnings were well above the substantially gainful threshold of $15,764 for the year. If genuinely attributable to the Claimant, they were a prime indicator that (i) the Claimant had significant work capacity and had never had a “severe” disability or (ii) she did have a “severe” disability at one time, but it had ceased to be “prolonged.”

[32] But more than that, the General Division clearly doubted the Claimant’s overall story—again, for good reason. The General Division pointed to numerous indications suggesting that the Claimant was working more than she was willing to admit after May 2013—and not just in 2017 but in all the other years, notwithstanding her reported earnings.

[33] The Claimant may disagree with the General Division’s decision to emphasize her 2017 earnings, but she has not shown me that it was an error under the three permitted grounds of appeal. In the end, this allegation amounts to a request to reweigh the evidence that was before the General Division. This I cannot do.

Issue 3: The General Division considered all available evidence after February 28, 2014

[34] My colleague on the Appeal Division raised another issue when she granted the Claimant leave to appeal. She thought there was an arguable case that the General Division failed to consider whether the Claimant was continuously disabled after the coverage period.

[35] I reviewed the General Division’s decision and the hearing file with this issue in mind. I saw nothing to suggest the General Division made an error.

[36] The General Division’s decision did not explicitly refer to the Claimant’s functional limitations and work capacity after February 28, 2014, but that does not mean it failed to consider them. The General Division does not have to refer to each and every item of evidence its written reasons, and it is presumed to have considered the entire record.^{Footnote 17}

[37] There is nothing in the record that rebuts this presumption. Indeed, as I noted previously, the record contains much to support the General Division’s conclusion that the Claimant did not have a severe and prolonged disability after February 28, 2014:

• The Claimant’s former family physician from 2014 to 2017 described the Claimant’s condition as “stable” and repeatedly referred to the Claimant’s ongoing work;^{Footnote 18}
• The Claimant’s orthopedic surgeon wrote in 2015 that the Claimant did well after her surgery, continued to work in her salon, and faced “no limitations”;^{Footnote 19}
• The Claimant’s current family physician said in 2017 that the Claimant was “managing well at work, keeping active, and working long hours at her salon.”^{Footnote 20}

[38] In light of this evidence, there was no need for the General Division to undertake a detailed analysis of the Claimant’s post-coverage limitations in its reasons. There was is no indication that the General Division ignored the available evidence about the Claimant’s limitations or work capacity.

Conclusion

[39] For the above reasons, the Claimant has not demonstrated to me that the General Division committed an error that falls within the permitted grounds of appeal.

[40] The appeal is therefore dismissed.