K. B. v. Minister of Employment and Social Development

K. B. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2018-05-10 Neutral citation 2018 SST 518 Reference number AD-18-162 Member Neil Nawaz Division Appeal Division Decision Application for leave to appeal refused Decision Content On this page Decision Overview Issues Analysis Conclusion Decision and Reasons Decision [1] Leave to appeal is refused. Overview [2] The Applicant, K. B., who is now 51 years old, is a high school graduate with training as a travel agent and a hairdresser. For more than a decade, she ran a home‑based hair salon. Since then, she has also worked at automotive dealerships selling cars and car parts. She was working as a service advisor for an automotive repair shop in October 2007 when she injured her back in a motor vehicle accident (MVA). She reports that she attempted to return to her job but could not sit or stand for extended periods. Since then, she claims, she has tried working as a waitress and as a flower wholesaler, but on each occasion chronic pain led her to quit after only a few weeks. [3] In September 2015, the Applicant applied for disability benefits under the Canada Pension Plan (CPP). The Respondent, the Minister of Employment and Social Development (Minister), refused the Applicant’s application on the ground that she had produced insufficient medical evidence that her disability was “severe,” as defined by the CPP, as of the minimum qualifying period (MQP), which ended on December 31, 2009. [4] The Applicant appealed the Minister’s refusal to the General Division of the Social Security Tribunal. On December 13, 2017, the General Division held a hearing by videoconference but ultimately found that the Applicant was able to perform substantially gainful work as of the MQP. [5] On March 14, 2018, the Applicant requested leave to appeal from the Tribunal’s Appeal Division. Accompanying her application for leave to appeal was a handwritten brief that contained annotated commentary of the General Division’s January 26, 2018, decision. The Applicant also made a number of specific allegations: She disagrees with the General Division decision. She is in pain and her condition is getting worse. She cannot work. There is no job that she could reasonably do. She attempted to work at a flower shop but could not manage even part‑time hours. She worked two days per week but she then had to spend the other five days in bed. Her private disability insurer required her to return to work despite her injuries. She did her best to remain employed but further damaged her health in doing so. There are therapies that would benefit her, but she cannot afford them. She found an OHIP‑funded chiropractor whose treatments have reduced her pain to some degree, although it remains at debilitating levels. She experienced pain before her MVA. One reason that she operated her own business was because it made it easier for her to pace herself and work through her pain. In December 2008, Dr. Rivington wrote that the Applicant was unable to tolerate prolonged standing, lift more than 10 pounds, or sit or stand for more than 30 minutes. Given these restrictions, what job does the General Division think she could do? [6] On March 16, 2018, The Tribunal asked the Applicant to provide additional reasons for her appeal. On April 9, 2018, she responded by submitting a second appeal form,Footnote 1 in which she again expressed her disagreement with the General Division’s decision to dismiss her appeal for CPP disability benefits. She also reiterated that her pain was severe and insisted that, as much as she wanted to work, she was simply unable to do so. [7] Having reviewed the General Division 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. Issues [8] According to s. 58(1) of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division: the General Division failed to observe a principle of natural justice; erred in law; or 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 first grants leave to appeal.Footnote 2 To grant leave for appeal, the Appeal Division must be satisfied that the appeal 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 [9] My task is to determine whether any of the grounds that the Applicant has put forward fall under the categories specified in s. 58(1) of the DESDA and whether any of them raise an arguable case on appeal. Analysis [10] The Applicant submits that the General Division dismissed her appeal despite evidence indicating that her condition was severe and prolonged, according to the CPP criteria for disability. She argues that the General Division refused to recognize that her limitations have rendered her effectively unemployable. [11] I do not see an arguable case on these grounds. [12] It is settled law that an administrative tribunal charged with fact finding is presumed to have considered all the evidence before it and need not discuss each and every element of a party’s submissions.Footnote 5 That said, I have reviewed the General Division decision and have found no indication that it ignored or gave inadequate consideration to any significant item of evidence. The General Division decision contains what appears to be a thorough summary of the Applicant’s medical file, followed by an analysis that meaningfully discussed the documentary and oral evidence. [13] For the most part, the Applicant’s submissions repeat evidence and arguments that she has already presented to the General Division. She has not identified how, in coming to its decision, the General Division failed to observe a principle of natural justice, committed an error of law, or relied on an erroneous finding of fact. My review of its decision indicates that the General Division conducted a detailed analysis of the Applicant’s reported medical conditions—principally chronic sciatic back pain—and whether these conditions affected her capacity to regularly pursue substantially gainful employment as of the MQP. In doing so, the General Division took into account her background—including her age, education, and work experience—but found that these factors were not significant impediments to her ability to perform low‑impact work. Indeed, the General Division noted that, despite indications that her condition had deteriorated since the MQP, she was nevertheless able to perform part‑time work for six months. The Applicant also suggests that the General Division ignored her family physician’s opinion that she was incapable of work, but its decision directly addressed Dr. Rivington’s December 2008 report in paragraph 46 of its decision, adding: While the Tribunal accepts Dr. Rivington’s finding, the determination of the severity of the disability, however, is not premised upon a person’s inability to perform his or her regular job, but rather on his or her inability to perform any substantially gainful occupation (Klabouch v. Canada (Social Development), 2008 FCA 33). I see nothing to suggest that the General Division misconstrued evidence or misapplied the law in making the above findings. [14] Broad allegations of error are insufficient grounds of appeal. In the absence of detailed reasons, I find the Applicant’s claimed grounds of appeal to be so broad as to amount to a request to retry the entire claim. If the Applicant is asking me to reassess the evidence and substitute my judgment for the General Division’s, I am unable to do so. My authority as an Appeal Division member permits me to determine only whether any of an applicant’s reasons for appealing fall within the grounds specified under s. 58(1) and whether any of these reasons have a reasonable chance of success. Conclusion [15] Since the Applicant has not identified any grounds of appeal that would have a reasonable chance of success on appeal, the application for leave to appeal is refused. Representative: K. B., self‑represented Footnotes Footnote 1 The Applicant completed a Notice of Appeal to the General Division of the Social Security Tribunal. Despite her use of the incorrect form, Tribunal staff accepted it as a submission made to further her application for leave to the Appeal Division. 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 Simpson v. Canada (Attorney General), 2012 FCA 82.