E. H., Estate of v. Minister of Employment and Social Development

E. H., Estate of v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2016-06-15 Neutral citation 2016 SSTADIS 212 Reference number AD-16-469 Member Hazelyn Ross Division Appeal Division Decision Application for leave to appeal refused Decision Content On this page Decision Introduction Grounds of the appeal Issue The governing statutory provisions Analysis Conclusion Decision [1] The Appeal Division of the Social Security Tribunal of Canada, (the Tribunal), refuses leave to appeal. Introduction [2] The Applicant seeks leave to appeal from a decision of the General Division of the Tribunal issued on December 21, 2015, (the Application). In its decision, the General Division found that the Applicant was not eligible for a disability pension under the Canada Pension Plan, (CPP). On April 20, 2016, the Tribunal received notice of the Applicant’s death. This action is being continued by his estate. Grounds of the appeal [3] On his behalf, the Applicant’s counsel submits that the General Division committed an error of law by failing to consider all of the Applicant’s medical conditions, thereby breaching paragraph 58(1) (b) of the Department of Employment and Social Development Act (DESD Act). Issue [4] The Appeal Division must decide if the appeal has a reasonable chance of success. The governing statutory provisions [5] Subsections 56(1) and 58(3) of the DESD Act govern the granting of leave to appeal. As provided by subsection 56(1) of the DESD Act, leave to appeal a decision of the General Division of the Tribunal is a preliminary step to an appeal before the Appeal Division. According to subsection 56(1) “an appeal to the Appeal Division may only be brought if leave to appeal is granted.” Subsection 58(3) provides that “the Appeal Division must either grant or refuse leave to appeal.” [6] In order to obtain leave to appeal, subsection 58(2) of the DESD Act requires an applicant to satisfy the Appeal Division that their appeal would have a reasonable chance of success; otherwise the Appeal Division must refuse leave to appeal. Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.” [7] An applicant satisfies the Appeal Division that his appeal would have a reasonable chance of success by raising an arguable case in his application for leave.Footnote 1 In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41 and in Fancy v. Canada (Attorney General), 2010 FCA 63 an arguable case has been equated to a reasonable chance of success. [8] Subsection 58(1) of the Department of Employment and Social Development, (DESD), Act, sets out the only three grounds of appeal, namely:- The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. [9] Tracey v. Canada (Attorney General), 2015 FC 1300 supports the view that in assessing an application for leave to appeal the Appeal Division must first determine whether any of the Applicant’s reasons for appeal fall within any of the stated grounds of appeal Analysis [10] The crux of the argument of Counsel for the Applicant is that the General Division failed to give due consideration to the oral testimony of the Applicant concerning his medical conditions. Counsel for the Applicant submitted that in addition to his testimony regarding his Crohn’s disease, the Applicant, “confirmed … the depression, severe mood swings, explosive anger, obsessive compulsive disorder, anxiety, joint issues, rheumatism, right sciatica, alcoholic, light sensitivity, arthritis, nausea, night vision problems, removal of part of the bowel. Mr. E. H. further testified that the accidents at work were increasing and by 2010 the urgency and frequency left him with fear to be far away from a bathroom.” (AD1) [11] Where an applicant suffers from more than one medical condition, it is an error of law not to consider all of the medical conditions, or to consider only the main medical condition. Bungay v. Canada (Attorney General), 2011 FCA 47Footnote 2 [12] In Villani v. (Canada) Attorney General 2001 FCA 248 the Federal Court of Appeal opined that “objective medical evidence” will be needed in order to establish disability. At the same time, the case law does not shut out the possibility that an applicant could establish that he or she is disabled within the meaning of the CPP on the basis of his or her oral testimony alone. In Pettit v. MHRD (April 1998), CP 4855, a decision of persuasive value to the Tribunal, the Pension Appeals Board accepted the testimony of the applicant in the total absence of medical information about his medical condition. [13] In the instant case, the General Division found that there was no objective evidence to support the existence of the other medical conditions the Applicant testified to. As part of his submissions in this Application, the Applicant’s counsel has now submitted a document from the Applicant’s family physician to this effect. As the proceedings before the Appeal Division are not de novo and as this document had not been before the General Division, the Appeal Division is unable to consider this evidence except to note that it was reasonable to expect that the Applicant would have obtained and tendered this evidence at or prior to the General Division hearing. [14] The General Division having heard the Applicant’s oral testimony found that there was reasonable cause to doubt and to reject his evidence concerning his other illnesses. The General Division arrived at its conclusions because of inconsistencies it noted between the Applicant’s statements to the Respondent and to one of his doctors that he was able to, and was working part-time, and his oral testimony that he had been unable to work since 2010. [15] Klabouch v. Canada, 2008 FCA 33 stands for the principle that a decision-maker does not have to make an adverse credibility finding before it can reject the oral testimony of a witness. The Federal Court of Appeal has consistently held that an applicant must adduce both medical evidence and evidence of his efforts to obtain work and to manage his medical condition. (Villani, supra.) [16] The General Division found the Applicant’s evidence on his ability to work after 2010 to be unreliable. It decided that it preferred the statement of Dr. Guo and the Applicant’s prior inconsistent statement made to the Respondent to his oral testimony that he was unable to work after 2010. At paragraph 20 of the decision, the General Division explained at length why it reached this conclusion. The Appeal Division finds no error in the General Division’s approach to or analysis of the evidence. Thus, the submissions do not give rise to grounds of appeal that would have a reasonable chance of success. [17] Counsel for the Applicant made the further argument that as the Applicant’s Record of Earnings show no contributions to the CPP after 2010, this was proof that, as of 2010 he was disabled. The Appeal Division is not persuaded of this position. The Applicant’s post-2010 employment was largely self-employment. (see GD 3-54) he did not have an independent employer per se who one would expect would have made the statutory deductions, therefore, in the view of the Appeal Division the fact that CPP contributions ceased after 2010 is not a reliable indicator that the Applicant became disabled in 2010.Footnote 3 [18] A further submission was made that the CPP Medical Report “clearly indicates that after 2010 Mr. E. H. was unable to continue working.” (AD1B-1) In the view of the Appeal Division the medical report does not support this submission. The report speaks to the Applicant’s severe Crohn’s disease, as well as his aortic valve condition. It also speaks to the need for surgery to repair the aortic valve once the Crohn’s went into remission. In fact, the Applicant’s family doctor noted that the Applicant has begun to show signs of remission. He, however, did not comment on the Applicant’s ability to pursue regularly any substantially gainful employment. The Appeal Division finds that the submission does not raise a ground that would have a reasonable chance of success on appeal. Conclusion [19] Counsel for the Applicant submitted that the General Division erred in law by failing to consider all of the Applicant’s medical conditions in its decision. For the reasons set out above the Appeal Division is not satisfied that Counsel’s arguments raise grounds of appeal that would have a reasonable chance of success. Accordingly, the Application is refused. Footnotes Footnote 1 [1] Kerth v. Canada (Minister of Human Resources Development), [1999] FCJ No. 1252 (FC). Footnote 2 Determining the claimant’s medical condition is a broad-based inquiry, requiring that the condition be assessed in its totality. All of the possible impairments of the claimant that affect employability are to be assessed not just the biggest impairments or the main impairment. Bungay Footnote 3 Dr. Guo noted that, “clinically, Mr. E. H. remains asymptomatic and is able to manage working on a part-time basis with a cleaning company. (GD3-54) there is evidence in the record that this part-time employment lasted until January 2013 and was self-employment. (GD3-30)