C. F. v. Minister of Employment and Social Development

C. F. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2018-08-15 Neutral citation 2018 SST 810 Reference number AD-18-462 Member Neil Nawaz Division Appeal Division Decision Application for leave to appeal refused Decision Content On this page Decision Overview Issue Analysis Conclusion Decision and reasons Decision [1] Leave to appeal is refused. Overview [2] The Applicant, C. F., was born in 1957 and attended school up to Grade 10. In July 2010, she was diagnosed with breast cancer. She left her job as a convenience store clerk to receive treatment, which included surgery, chemotherapy and radiotherapy. She was later diagnosed with other conditions, primarily cryoglobulinemic vasculitis. [3] In October 2016, the Applicant applied for a disability pension under the Canada Pension Plan (CPP). The Respondent, the Minister of Employment and Social Development (Minister), refused the application because it found that her disability was not “severe and prolonged,” as defined by the CPP, during the minimum qualifying period (MQP), which it determined ended on December 31, 2012. The Minister acknowledged that the Applicant was subject to limitations, but found that they did not prevent her from working until after the MQP. [4] The Applicant appealed the Minister’s refusal to the General Division of the Social Security Tribunal. The General Division conducted a hearing by way of written questions and answers and, in a decision dated May 25, 2018, dismissed the appeal, finding, on balance, that the Applicant was capable of substantially gainful work as of the MQP. The General Division placed particular weight on medical reports indicating that, as late as 2014, the Applicant was seeking full-time employment and cleaning houses on the side. [5] On July 20, 2018, the Applicant requested leave to appeal from the Tribunal’s Appeal Division. The Applicant argued that the General Division erred when it based its decision entirely on information from Dr. Burnell, her oncologist, and ignored Dr. O’Neill, her family doctor, whose letter, dated February 25, 2017,Footnote 1 clearly stated that she was disabled as of 2012. According to the Applicant, Dr. Burnell was in a position to state only whether her cancer was in remission; she was not ever involved in the Applicant’s ongoing care and had limited knowledge of her medical issues after her cancer treatment. The Applicant maintained that when Dr. Burnell declared her able to return to work, she was referring only to the fact that her cancer was gone and her treatment for it complete. [6] Having reviewed the General Division’s decision against the underlying record, I have concluded that the Applicant has not advanced any grounds that would have a reasonable chance of success on appeal. Issue [7] According to s. 58 of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division: the General Division (i) failed to observe a principle of natural justice; (ii) erred in law; or (iii) based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material. An appeal may be brought only if the Appeal Division grants leave to appeal,Footnote 2 but the Appeal Division must first be satisfied that it has a reasonable chance of success.Footnote 3 The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.Footnote 4 [8] I must determine whether the Applicant has an arguable case that the General Division gave too much weight to Dr. Burnell’s medical reports while ignoring or misconstruing Dr. O’Neill’s opinion that the Applicant has been disabled since 2012. Analysis [9] The Applicant argues that the General Division ignored, or gave too little weight to, her family doctor’s opinion that she was disabled prior to the end of the MQP, and that it instead relied on remarks from her oncologist, whom she saw only intermittently. [10] I do not see an arguable case on this ground, which is based on the premise that the General Division failed to weigh the evidence properly. As trier of fact, the General Division has wide discretion to assess the material before it so long as it remains within the confines of s. 58(1) of the DESDA. While Dr. O’Neill submitted a letter that strongly supported the Applicant’s claim for disability benefits, it was only one item of evidence, among others, that the General Division was obliged to consider. In any event, the General Division squarely addressed Dr. O’Neill’s letter of February 25, 2017, in paragraph 16 of its decision: I have considered Dr. O’Neill’s submission from February 2017 in which he reported that he believed the Appellant was never well enough to return to work following her breast cancer. This was based on review of his clinical notes. He opined that she was still recovering from breast cancer when her health began declining due to the early stages of vasculitis. As a basis for his submission Dr. O’Neill cited office visits that occurred subsequent to the Claimant’s MQP. I have also considered that in June 2016, hospitalist Dr. Forgeron listed the Claimant’s reason for her prolonged hospitalization since January 2016 was due to new onset vasculitis which had resulted in multi-organ failure. It must be kept in mind that assessing disability under the CPP is a legal question as much as it is a medical one, and one physician’s pronouncement is not necessarily the final word on the matter. In his letter, Dr. O’Neill wrote that, having reviewed his notes from 2012 to 2016, he saw “a pattern of escalating problems which in retrospect were early manifestations of her cryoglobulinemic vasculitis.” It appears that the General Division discounted Dr. O’Neill’s retrospective diagnosis because it saw evidence elsewhere in the record indicating that the Applicant’s vasculitis did not became acute until 2016. [11] In this sense, the General Division had a rational basis for assigning lesser weight to Dr. O’Neill’s report. Moreover, the General Division also found that the O’Neill report stood at odds with other information in the file: [17] Given the conflicting recounts with respect to function, symptoms, and employment, the most significant weight has been placed on the clinical notes from Dr. Burnell as the Claimant’s treating specialist during the time period in question. Cancer follow-up with the Claimant was regular between 2011 and 2014. Throughout Dr. Burnell’s notes, apart from some reported fatigue and arthritis pain, there was consistent indication that the Appellant continued to look for work unsuccessfully and was otherwise clinically well. There was no recommendation by any of the Claimant’s treating physicians around the time of the MQP that she was incapable of working. [12] The Applicant argues that the General Division should not have relied on Dr. Burnell’s reports to the extent that it did because the oncologist had little insight into her overall medical condition or capacity once her cancer treatment was completed. Had Dr. Burnell been commenting on medical issues outside her area of expertise, I might have been inclined to agree, but, in her follow-up note dated October 15, 2014,Footnote 5 she (or, more accurately, a nurse in her clinic) documented the Applicant’s recent history as follows: She has no respiratory difficulties. She has had no headaches or any complaints of pain. Her energy is variable, for the most part she remains fairly active. She is not working and does do a bit of house cleaning on the side. She would like to find a job but has not been successful. [13] This was evidence that the Applicant had at least some capacity to work after the MQP, and the General Division, quite reasonably, put Dr. Burnell’s statements to her in its notice of hearing dated April 3, 2018: You were seeing Dr. Burnell regularly for follow-up in 2012. Did you mention to [her] about the additional symptoms you describe? […] Dr. Burnell reported that you continued to look for work well after December 2012 but could not find employment. [She] noted that you were cleaning some houses in his report dated October 2014. Would you have worked if you had been offered employment? Describe the housecleaning on the side that you were doing in 2014. [14] The Applicant replied on April 12, 2018, writing: I was seeing Dr. Burnell for regular check-ups. She checked my breast and poked around my stomach. There was no pain. She said I could go back to work […] By 2012, I tried doing housework next door but I could not even do that. [15] It is notable that the Applicant did not deny, or directly address, Dr. Burnell’s understanding that she was cleaning houses and looking for full-time work after the MQP. Faced with conflicting evidence, the General Division exercised its discretion to place greater weight on Dr. Burnell’s account, and in the absence of specific allegations of factual error, I see no reason to interfere with its judgment on this matter. If the Applicant is requesting that I re-weigh the evidence that was available at the hearing and come to a different conclusion than the General Division’s, that is beyond the scope of a leave application. The Appeal Division may not substitute its view of the evidence for that of the trier of fact. Conclusion [16] Since the Applicant has not identified any grounds of appeal under s. 58(1) of the DESDA that would have a reasonable chance of success on appeal, the application for leave to appeal is refused. Representative: C. F., self-represented Footnotes Footnote 1 GD2-319. Footnote 2 DESDA at ss. 56(1) and 58(3). Footnote 3 Ibid. at s. 58(1). Footnote 4 Fancy v. Canada (Attorney General), 2010 FCA 63. Footnote 5 GD2-166.