Canada Pension Plan (CPP) disability

Decision

[1] I am allowing this appeal. The General Division made factual and legal errors when it denied the Claimant a disability pension. I am returning this matter to the General Division for another hearing.

Overview

[2] The Claimant, R. C., is a 48-year-old former personal support worker who has been diagnosed with fibromyalgia, arthritis, irritable bowel syndrome (IBS), and carpal tunnel syndrome (CTS). She left her job in October 2019 and hasn’t worked since.

[3] In November 2019, the Claimant applied for a Canada Pension Plan disability pension. Service Canada refused the application because, in its view, the Claimant had not shown that she had a severe and prolonged disability.^{Footnote 1}

[4] The Claimant appealed Service Canada’s refusal to the Social Security Tribunal’s General Division. The General Division held a hearing by teleconference and dismissed the appeal because it did not find enough medical evidence that the Claimant was disabled. The General Division also found that the Claimant had unreasonably refused recommended medical treatment.

[5] The Claimant is appealing the General Division’s decision. She insists that she is disabled and alleges that the General Division made the following errors:

• It focused on her relatively minor disorders, such as headaches, IBS, and CTS, rather than her fibromyalgia and degenerative disc disease; and
• It ignored her reasons for not going further with recommended treatments for her headaches:
  • She had already tried a lot of treatments with limited success;
  • She has already experienced intolerance to other medications; and
  • Botox costs a significant amount of money and it was not covered by her husband’s insurance plan.

[6] I gave the Claimant permission to appeal because I thought she had an arguable case. Last month, I held a hearing by teleconference to discuss her allegations in full.

What the Claimant had to prove

[7] There are four grounds of appeal to the Appeal Division. A claimant must show that the General Division

• proceeded in a way that was unfair;
• acted beyond its powers or refused to use them;
• interpreted the law incorrectly; or
• based its decision on an important error of fact.^{Footnote 2}

[8] My job was to determine whether 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

The General Division misconstrued the Claimant’s reasons for not going forward with some treatments

[9] The Claimant has always insisted that she has done everything reasonably possible to overcome her impairments. The General Division disagreed and based its decision almost entirely on findings that the Claimant had not followed medical advice.

[10] In my view, those findings were themselves based on factual errors that the General Division made without regard for the material before it. Because the General Division’s decision falls for this reason alone, I see no need to consider the Claimant’s remaining allegations.

The law requires claimants to take reasonable steps to improve their condition

[11] According to a leading case called Lalonde, disability claimants must mitigate (do what they can to alleviate) their impairments by following their treatment providers’ recommendations.^{Footnote 3} Lalonde also requires decision-makers to consider whether a claimant’s refusal of recommended treatment is unreasonable and, if so, what impact that refusal is likely to have on the claimant’s disability status. It is up to the claimant to show that they have complied with medical advice.^{Footnote 4}

[12] In this case, the General Division based its decision almost entirely on what it found was the Claimant’s unreasonable refusal to (i) try Botox for her migraine headaches and (ii) undergo a course of physical therapy for her fibromyalgia.^{Footnote 5} The General Division cited Lalonde in its decision, but that does not necessarily mean that it understood its principles or applied them correctly.^{Footnote 6}

The General Division did not fully consider the Claimant’s explanation for declining Botox

[13] The General Division found that the Claimant refused Botox injections against the advice of three doctors.^{Footnote 7} It also found the Claimant’s explanations for not trying Botox unreasonable:

• The Claimant concluded that Botox was unacceptably risky after conducting her own research into the drug. However, the General Division found that the Claimant’s treating physicians were a more reliable source of medical information than websites.^{Footnote 8}
• The Claimant thought that Botox was too expensive. However, the General Division found that the Claimant had benefits under her husband’s plan that would have covered part of the drug’s cost.^{Footnote 9}

[14] On that second point, I see that two of the Claimant’s doctors attributed the Claimant’s refusal to the cost of Botox, which the Claimant feared would not be covered by her husband’s employee benefits plan. Dr. MacLean, the neurologist, said that the Claimant “should be eligible for Botox under her Blue Cross plan.”^{Footnote 10} Dr. Oja, the plastic surgeon, wrote, “Presently, Medicare will not cover the use of Botox and it will cost her approximately $800 to have the injections done. I know this is a problem for her, but this is the way the situation lies at this point.”^{Footnote 11}

[15] At the hearing, the General Division member asked the Claimant, “Was money a concern for doing Botox, because it looked to be quite expensive?”^{Footnote 12} The Claimant replied that her husband had “put a requisition in to see how much they would pay for it.” However, she did not say if the requisition had been approved or, if it had, how much Botox treatment her husband’s plan would cover. The member did not probe the Claimant for further details and instead ended the exchange by asking a leading question: “So it would have been partially covered, perhaps?”—to which the Claimant simply replied, “Yes.”

[16] The General Division went on to make a direct finding that the Claimant had no reason not to take Botox because “part” of its cost was covered. But even if the Claimant had partial coverage—and I’m not sure that fact was ever definitely established—it still doesn’t mean she could afford this expensive drug.

[17] The General Division also found that the Claimant’s explanations for refusing Botox were “inconsistent” because she cited its cost to her doctors but mentioned other reasons (that is, her concerns about the drug’s potential negative reaction) at the hearing. However, I fail to see why having more than one reason for declining a medicine is necessarily inconsistent or contradictory. It is possible for a person to have several valid reasons for doing or not doing something. I don’t see why the General Division drew a negative inference from the mere fact that the Claimant was concerned about both the cost and the side effects of Botox.

The General Division failed to consider whether the Claimant’s reluctance to take Botox had any impact on her disability status

[18] As noted, Lalonde requires decision-makers to consider what impact a claimant’s non-compliance will have on their condition.^{Footnote 13} For instance, it may be that the recommended treatment has been proven elsewhere to be only marginally effective. Or it may be that an alternative therapy proved to be just as effective as the recommended treatment.

[19] Something like that second scenario appears to have happened here. After spending nearly two pages analyzing the Claimant’s refusal to take Botox, the General Division concluded:

While I find [the Claimant’s] refusal to try Botox unreasonable, she later found a medication that worked. I can’t conclude that trying Botox would have made a difference to her migraine headaches by December 31, 2021.^{Footnote 14}

[20] The General Division did not explain why the Claimant’s failure to take Botox was unreasonable if Botox would have made no difference to her migraine headaches. It also did not explain why it was wrong to reject one medicine in favour of another that turned out to be equally effective.

[21] The above passage suggests that, in the end, the General Division decided not to hold the Claimant’s reluctance to take Botox against her. But in that case, why did the General Division devote so much of its analysis to that issue?

The General Division did not fully consider the Claimant’s home exercises

[22] The General Division found that the Claimant had no reasonable excuse for following her physiatrist’s recommendation to enrol in a program of physical therapy for stretching and postural exercises.^{Footnote 15} In particular, the General Division was not convinced that pain prevented the Claimant from driving to and from the physiotherapy clinic.

[23] However, Dr. Bossé herself did not seem disappointed by the Claimant’s failure to attend physiotherapy. In fact, she seems to have devised an alternative—a home exercise program—that the Claimant adopted:

She has definitely identified her triggers and driving seems to aggravate her pain. For this reason not been able to attend outpatient physical therapy to get a program for stretching and postural program. She however has looked up her own program online and has been doing some stretching on a fairly regular basis. She was also provided with some stretching techniques when she was last seen here [emphasis added].

[24] In its decision, the General Division did not make any attempt to assess how effective the Claimant’s home exercise program might have been as an alternative to the program that Dr. Bossé prescribed. This omission suggests that the General Division came to its decision without determining, as demanded by Lalonde and related cases, whether the Claimant’s failure to take physiotherapy made any real difference to her condition.

[25] As it did in its discussion of the Claimant’s refusal to take Botox, the General Division drew a negative inference from what it deemed her “inconsistent” explanations for refusing physiotherapy: on one hand, the Claimant told her physiatrist that driving to appointments would cause her pain; on the other, she testified that she was worried the physiotherapist would cause her pain.^{Footnote 16} The General Division appears to have attached significance to the contrast between these two statements, yet it is not obvious to me that they do in fact contrast in any material way. And even if I assume that they do contrast, I can only repeat what I wrote above: having more than one reason for declining a therapy is not necessarily inconsistent or contradictory.

The General Division’s decision lacked clarity

[26] The Supreme Court of Canada has said that administrative decisions must be (i) justified in relation to the facts and law and (ii) based on an internally coherent and rational chain of analysis.^{Footnote 17} In a similar vein, the Federal Court of Canada requires decision-makers to make their reasons intelligible and transparentso that“the basis for a decision … is understandable, with some discernible logic.”^{Footnote 18}

[27] In my view, the General Division’s decision lacked coherence and logic. As mentioned, the General Division based its decision on the Claimant’s refusal to take Botox, even though it wasn’t sure whether the drug would have made any difference to her migraine headaches. The General Division also questioned the Claimant’s credibility for a reason that defied logic: the Claimant was deemed to be “inconsistent” and “unreasonable” simply because she offered more than one reason for declining Botox and physiotherapy.

[28] In short, the General Division failed to adequately justify its decision for turning down the Claimant’s appeal. In an environment in which Courts increasingly demand clear and comprehensible reasons from administrative and quasi-judicial decision-makers, that amounts to an error of law.

Remedy

[29] When the General Division makes an error, the Appeal Division can fix it by one of two ways: (i) it can send the matter back to the General Division for a new hearing or (ii) it can give the decision that the General Division should have given.^{Footnote 19}

[30] The Tribunal is required to proceed as quickly as fairness permits. I would ordinarily be inclined to give the decision that the General Division should have given and decide this matter on its merits, but I do not think that the record is complete enough to allow me to do so.

[31] I have listened to the entire recording of the General Division hearing. I heard the Claimant testify about her medical conditions, her limitations, and the treatments that she received for them. However, I did not hear the Claimant testify in any detail about one crucial area—her efforts, if any, to seek alternative employment.^{Footnote 20} This is an important topic in any CPP disability claim, and this gap in the record makes me wary about deciding the merits of this matter myself.

[32] Unlike the Appeal Division, the General Division’s primary mandate is to weigh evidence and make findings of fact. As such, it is inherently better positioned than I am to hear the Claimant’s testimony on this important topic and to explore whatever avenues of inquiry that may arise from it. In this particular instance, I feel my only option is to refer this matter back to the General Division for rehearing.

Conclusion

[33] For the above reasons, I find that the General Division erred in law and based its decision on two erroneous findings of fact made without regard for the material before it. Because the record is not sufficiently complete to allow me to decide this matter on its merits, I am referring it back to the General Division for a freshhearing.

[34] The appeal is allowed.