Canada Pension Plan (CPP) disability

Decision

[1] I am dismissing the appeal. The General Division didn’t make an error. These reasons explain why.

Overview

[2] D. S. (Claimant) first applied for a Canada Pension Plan (CPP) disability pension in September 2004. The Minister of Employment and Social Development (Minister) refused her application initially and on reconsideration. The Claimant appealed to the Office of the Commissioner of Review Tribunals (OCRT). In 2006, the OCRT dismissed her appeal.

[3] The Claimant applied for a CPP disability pension again in May 2019. She explained that she had been unable to work because of reflex sympathetic dystrophy syndrome and multiple sclerosis. She had fatigue, anxiety, depression, and pain. The Minister refused her application initially and on reconsideration.

[4] The Claimant appealed to this Tribunal. Although the OCRT had already decided she wasn’t eligible for the disability pension based on the first application, the General Division found that it would be unjust in this case to apply the rule of res judicata (or the rule against deciding something that has already been decided).

[5] To receive a disability pension, the Claimant had to show the General Division that she had a severe and prolonged disability during what I will call “the relevant period.”^{Footnote 1} That period is either of the following:

• on or before December 31, 2008^{Footnote 2}
• between January 1, 2009, and May 31, 2009^{Footnote 3}

[6] The General Division decided that the Claimant wasn’t eligible for a CPP disability pension because she hadn’t shown that her disability was severe during the relevant period.

[7] The General Division decided that the Claimant’s work in 2011 and 2012 showed that she had some capacity for work during the relevant period and up to 2015. To reach that conclusion, the General Division was relying on both the medical evidence and the Claimant’s work efforts.

[8] I granted the Claimant leave (permission) to appeal the General Division’s decision. I found that it was arguable that the General Division had made an error of law by focusing on the wrong period, contrary to what the Canada Pension Plan requires.

[9] I have to decide whether the General Division made that or any of the other errors the Claimant says it made. If I find an error, I need to explain what steps I will take to remedy (fix) it.

[10] I find that the General Division didn’t make an error. It considered the evidence from the relevant period. I won’t intervene in the General Division’s conclusion that the evidence from that time showed some capacity for work.

[11] Similarly, the General Division didn’t make an error of fact or of law when it decided that the Claimant’s work efforts didn’t count as “failed work attempts.”

[12] I am dismissing the appeal.

Preliminary matters

The rule of res judicata

[13] When considering the OCRT’s 2006 decision, the General Division decided not to apply the rule of res judicata. The Minister made some arguments about whether the General Division’s approach to that analysis was correct.

[14] However, the Minister didn’t argue that the General Division had made an error, and this is the Claimant’s appeal. The Claimant didn’t identify it as an error in the application for leave to appeal, and I don’t see an argument here for an error of law on the face of the record. I won’t interfere with the General Division’s analysis about the rule of res judicata.

The role of the Adjudication Framework

[15] The Claimant argues that, because she has a neuromuscular disorder (multiple sclerosis), the Minister’s Adjudication Framework states that her diagnosis itself is evidence of a severe and prolonged disability.

[16] The General Division didn’t consider the Adjudication Framework in its decision, and the Claimant didn’t raise this argument in support of her appeal at the General Division level.

[17] The Claimant does not seem to argue that the General Division erred in law by failing to consider the Adjudication Framework. Therefore, I will not address this argument. The Claimant did not point to an error but only raised that the Adjudication Framework specifically recognizes her diagnosis as a disability.

Issues

[18] The issues in this appeal are as follows:

1. a) Did the General Division make an error of law in the way it relied on evidence of work efforts in 2011 and 2012 to decide whether the Claimant’s disability was severe during the relevant period, which ended in May 2009?
2. b) Did the General Division make an error in the way it assessed the Claimant’s evidence about her work in 2011 and 2012?

Analysis

[19] This is where I explain:

• what my role is in reviewing General Division decisions
• what a severe disability is within the meaning of the Canada Pension Plan
• why I find that the General Division did focus appropriately on the relevant period to decide that the Claimant had some capacity for work
• why the General Division’s assessment of the work in 2011 and 2012 wasn’t an error of fact or of law

Reviewing General Division decisions

[20] The Appeal Division hearing isn’t a chance for the Claimant or the Minister to re-argue their case from the beginning. Instead, the Appeal Division reviews the General Division’s decision to decide whether it made any errors.

[21] That review is based on the wording of the Department of Employment and Social Development Act, which lists the “grounds of appeal” (the errors I can consider).

[22] Failing to follow the legal analysis required by the Canada Pension Plan and the case law is an error of law. That is one of the grounds of appeal.^{Footnote 4}

Severe disability: What is it?

[23] A disability is severe if it makes a claimant incapable regularly of any substantially gainful work. Each part of that description has meaning. The Claimant’s disability had to be severe during the relevant period.

Severe disability: The General Division focused on the relevant period

[24] The General Division didn’t make an error of law. I am satisfied that the General Division did consider the evidence from the relevant period sufficiently.

[25] It isn’t an error to consider work after the relevant period as evidence of work capacity. Evidence of work after the relevant period might reveal that a claimant has capacity to work (and that the disability is not prolonged).

[26] However, when deciding whether there is any work capacity, the General Division has to be guided by the overarching question of whether the Claimant had a severe disability during the relevant period.^{Footnote 5}

[27] The General Division noted that the Claimant’s doctor had said that the Claimant was unemployable because of her condition.^{Footnote 6} The doctor gave this opinion in 2006, during the relevant period. The General Division didn’t ignore that evidence.

[28] However, the General Division found that the Claimant was able to go back to work as a cook five years later and that those work efforts were evidence of an ongoing work capacity. Although the Claimant “continued to have some limitations, she retained capacity to work as shown by her work efforts in 2011 and 2012.”^{Footnote 7} The General Division seems to have relied on work outside the relevant period to interpret the opinion from the Claimant’s doctor, which was not an error.

[29] I am satisfied that the General Division didn’t dismiss the doctor’s opinion about employability from the relevant period simply because the Claimant worked years after the relevant period.

[30] It is clear that the General Division also reviewed and summarized the medical evidence about the Claimant’s functional limitations during the relevant period.^{Footnote 8} The General Division considered the doctor’s conclusion about the Claimant’s employability, but it also reviewed the injuries to her hand and arm from her car accident in 2001 and acknowledged that she had chronic pain.

[31] The General Division considered the Claimant’s efforts to manage that pain, including with physiotherapy, surgery, and injections. The General Division seems to have concluded that the medical evidence didn’t add up to a severe disability because the Claimant had at least some capacity for work.

[32] The General Division didn’t comment just on the Claimant’s work. It also mentioned the treatments she had tried and the activities of daily living she could manage. Additionally, it considered the impact of her other car accident in January 2008 and her fall in December 2008. It concluded that there were soft tissue injuries only and no fractures or dislocations.

[33] When I consider the General Division’s decision as a whole, the General Division didn’t base its decision about work capacity just on the Claimant’s work efforts in 2011 and 2012. It considered the relevant period too. It summarized the evidence from the relevant period and concluded that there was some capacity for work. Then it went on to consider also the Claimant’s work in 2011 and 2012.

[34] The General Division considered the Claimant’s work. But, it did this with an overarching view as to whether the Claimant had a severe disability during the relevant period. The General Division followed the legal test for deciding whether the Claimant’s disability was severe.

Considering the work in 2011 and 2012

[35] The General Division didn’t make an error of fact or of law in the way it considered the Claimant’s work in 2011 and 2012.

The General Division applied the law

[36] According to the Canada Pension Plan and the way the Federal Court of Appeal has interpreted it, the work claimants do after the relevant period is important in several ways.

[37] Sometimes, the work a claimant does after the relevant period shows that they have always had work capacity. In that case, post-relevant period work can support the conclusion that the disability wasn’t severe during the relevant period and continuously after that.

[38] Other times, the work a claimant does after the relevant period can be evidence of a “failed work attempt.” In other words, it can help to show that the disability was severe. In that case, the decision-maker needs to consider why the claimant’s earnings aren’t evidence of an ability to work. Why did the work attempt fail? How long did the attempt last?

[39] The Federal Court of Appeal says that there is “no doubt” that a return to work that lasted only a few days would be a failed attempt, but that “two years of earnings consistent with what had been earned before cannot be a failed attempt.”^{Footnote 9}

[40] Certain questions need asking when considering what post-relevant period work tells us about whether a claimant was incapable regularly of any substantially gainful work. These questions include the following:

• Was the claimant able to find and keep a job, go to work regularly, and be reliable? (that is the “incapable regularly” part of the definition of a severe disability)
• Was the claimant capable of doing enough of the kind of work that would allow them to earn a living? (that is the “substantially gainful” part of the definition of a severe disability)
• Was the claimant working for a benevolent employer? (the “work” part of the definition of a severe disability covers this)

[41] If a claimant has some capacity for work during the relevant period, then they have to show that efforts to find and keep a job were unsuccessful because of their medical condition.^{Footnote 10}

[42] The General Division considered the Claimant’s work in 2011 and 2012 to be evidence of work capacity, rather than evidence of failed work attempts. It looked at the evidence and made the following findings:

• The Claimant’s income from working in the daycare kitchen was just below what would have been substantially gainful in 2011. But that wasn’t the only factor to consider about the work.
• The Claimant worked part-time hours because that was all the work that was available. Her employer said that the quality of her work was satisfactory and that she could handle the demands of the job without help.
• The Claimant gave evidence that she did have help from her partner and from others in the workplace.
• The employer wasn’t benevolent because it didn’t accommodate the Claimant beyond what would be expected in the marketplace: Her work was productive, and she was paid a competitive wage.
• The air filtration at work made the Claimant’s lung condition worse, but medical evidence shows that it stabilized. However, the Claimant didn’t go back to the job.
• The Claimant applied for a job at a deli. The job was also part-time, but the deli closed soon after it opened.
• The Claimant didn’t apply for any other jobs, since she chose to stay home with her children. Her employment didn’t end because of medical conditions.^{Footnote 11}

[43] Considering all these findings, in my view, the General Division fully analyzed the Claimant’s work in 2011 and 2012 and didn’t skip over any part of the analysis that the law requires. The General Division provided a detailed picture of the Claimant’s work with an overarching focus on the issues connected to whether the work was substantially gainful, whether it was work, and why it ended.

The General Division didn’t get the facts wrong about the work

[44] The Claimant argues that the General Division didn’t consider the circumstances that led to her working in 2011. She needed to work out of desperate financial need and failed. She argues that her work efforts in 2011 and 2012 are further evidence that she didn’t have work capacity.

[45] The General Division is presumed to have considered all the evidence, even if its decision doesn’t refer to it. The Claimant can overcome that presumption by showing that there was important evidence that the General Division needed to discuss. In that situation, I can infer that the General Division ignored that evidence and made an error of fact.^{Footnote 12}

[46] Here, the General Division didn’t need to consider the Claimant’s reason for going back to work. The law required it to consider what that work was like and why it stopped. The General Division didn’t make an error by ignoring evidence about the Claimant’s reason for going back to work.  The evidence about her financial situation helps to show why she went back, but her appeal failed because she wasn’t able to show that these were work attempts that failed because of her disability.

[47] The Claimant seems to argue that the facts the General Division considered, when properly understood, show that she could not work. She says again that she hasn’t been able to earn a living, that she worked few hours, and that she needed regular help from her co-workers and from her partner. She points out that her earnings weren’t substantially gainful.

[48] The General Division acknowledged all that evidence and reached a different conclusion. I can’t re-weigh the evidence and come to a different conclusion if there is no error. There is no error here that would require me to re-weigh this evidence to remedy the error.

[49] The Minister argues that the General Division made no error in considering the Claimant’s post-relevant period work. It says that the case law and the Canada Pension Plan allow and require this approach.

[50] There are several cases where the Federal Court of Appeal didn’t intervene in the General Division’s conclusion that the claimant wasn’t eligible for a disability pension precisely because of their post-relevant period work.

[51] In one of those cases, the Federal Court of Appeal said that “the capacity […] to regularly engage in remunerative employment is the very antithesis of a severe and prolonged disability.”^{Footnote 13}

[52] The General Division found that, although she had stopped working in the daycare kitchen because of her disability (the ventilation made her lung condition worse), the Claimant had looked for other work within her physical limitations. She found a part-time job at a deli. Her job at the deli didn’t end because of her disability; it ended because the business didn’t get off the ground.^{Footnote 14}

[53] So, the General Division could not conclude that this was a failed work attempt due to disability. These were efforts to find and keep a job within her limitations that didn’t work out due to other reasons.

[54] The Claimant’s work was for over a year and a half. It didn’t end because of her disability. She didn’t look for other work within her limitations after the deli didn’t take off. She was limited by pain, but the General Division found that she wasn’t incapable regularly of any substantially gainful work.

[55] The Claimant argues I should understand parts of these facts differently. For example, I should accept that she had no choice but to stay home with her children once it was clear there was no work at the deli. However, I can’t say that the General Division misinterpreted the evidence on that point in a way that results in an error of fact.

[56] The General Division discussed the relevant evidence and didn’t come to factual findings in a way that was either perverse or capricious. There is no error that I have to remedy.

Conclusion

[57] I am dismissing the appeal. The General Division didn’t make an error.