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

Minister of Employment and Social Development v. F. L. Collection Canada Pension Plan (CPP) disability Decision date 2019-10-31 Neutral citation 2019 SST 1299 Reference number AD-19-440 Member Jude Samson Division Appeal Division Decision Appeal allowed Decision Content On this page Decision Overview Issues Analysis Conclusion Decision and Reasons Decision [1] The appeal is allowed. Overview [2] F. L. is the Claimant in this case. He says that he has been unable to work since July 2015. He later applied for a disability pension under the terms of the Canada Pension Plan (CPP), but the Minister of Employment and Social Development denied his application. [3] On appeal, the General Division concluded that the Claimant met the requirements for obtaining a CPP disability pension. However, the Minister is now appealing the General Division decision to the Tribunal’s Appeal Division. In particular, the Minister is arguing that the General Division decision contains important errors of fact and law. [4] I agree with the Minister’s submissions. I also agree that I can give the decision that the General Division should have given in this case: the Claimant is not entitled to a CPP disability pension. These are the reasons for my decision. Issues [5] As part of this decision, I focused on the following questions: Does the General Division decision contain errors of fact and law? If so, what is the appropriate remedy in this case? Is the Claimant entitled to a CPP disability pension? Analysis [6] I can intervene in this case only if the General Division committed at least one of the three possible errors described in the Department of Employment and Social Development Act (DESD Act).Footnote 1 In this case, I focused on whether the General Division committed an error of law or of fact. [7] If the General Division decision contains any legal errors, then the DESD Act allows me to intervene in this case.Footnote 2 [8] However, the DESD Act does not give me the power to intervene because of just any mistake regarding the facts of the case. Instead, I can only intervene if the General Division based its decision on that mistake and if it made the mistake perversely, capriciously, or without regard for the evidence.Footnote 3 [9] In other words, if the General Division was wrong about some small detail in the case and that mistake had no impact on the outcome of the case, then I will overlook it. However, I can intervene in a case if, for example, the General Division based its decision on a fact that is clearly contradicted by the evidence or has no evidence to support it.Footnote 4 [10] If I find that the General Division committed an error, then the DESD Act also describes the powers that I have to try to fix that error.Footnote 5 Issue 1: Does the General Division decision contain errors of fact and law? [11] Yes, the General Division committed errors of fact and law in this case. In particular, it misinterpreted a transferable skills analysis report. It also failed to properly apply the Federal Court of Appeal’s decision in Villani v Canada (Attorney General).Footnote 6 [12] The General Division decided that the Claimant was entitled to a CPP disability pension, meaning that he has a severe and prolonged disability.Footnote 7 Under the CPP, a disability is severe if the claimant is incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death. [13] In support of its conclusion that the Claimant has a severe disability, the General Division pointed to the Claimant’s right and left shoulder limitations, along with a heart condition.Footnote 8 The General Division also gave significant weight to a transferable skills analysis report, dated May 1, 2017.Footnote 9 [14] The Minister argues that the General Division overlooked an important exclusion from that report. As a result, it misinterpreted the report and overstated its importance. More specifically, the range of possible alternative jobs that the report’s author considered did not include all substantially gainful occupations, as required by the CPP. Instead, the author only considered alternative jobs for the Claimant that were “commensurate in status and reward” with his previous occupation. [15] In response, the Claimant argues that he was not in a high-paying job to begin with. As a result, it is unclear whether the application of the “commensurate in status and reward” criteria did, in fact, remove any possible occupations from consideration.Footnote 10 [16] The General Division assessed the severity of the Claimant’s disability as follows:Footnote 11 It is clear from the evidence that the Claimant has right and left shoulder limitations in addition to a heart condition. Further to a vocational rehabilitation report dated May 1, 2017, only three sedentary occupations were identified given the transferable skills of the Claimant and these occupations were only suitable upon the Claimant’s functional improvement of his right arm. Applying the [Villani] criteria, given his limitations, I am satisfied that the Claimant’s disability is severe since he stopped working in July 2015. [17] From these paragraphs, it appears that the General Division concluded that the Claimant’s disability was severe, based almost exclusively on the transferable skills analysis report. In other words, it is as though the author of that report was applying the criteria from the CPP when reaching his conclusions. But that is not true. [18] The relevant criteria under the CPP and that applied as part of the transferable skills analysis are not the same. For example, the author of the transferable skills analysis appears to have only considered alternative jobs that would have allowed the Claimant to earn at least $25,400.Footnote 12 However, the range of “substantially gainful” occupations that must be considered under the CPP is much broader than that. Indeed, section 68.1 of the Canada Pension Plan Regulations defines “substantially gainful” as being well below $25,400.Footnote 13 [19] In my view, the General Division made an error of fact when it interpreted the transferable skills analysis report and the requirements of the CPP as being the same or nearly the same. In addition, by using the results of the transferable skills analysis to find that the Claimant had a severe disability, the General Division effectively changed the relevant legal test. This is an error of law. [20] The General Division committed a second error of law too: it failed to properly apply the Federal Court of Appeal’s decision in Villani. The General Division’s brief mention of Villani (as quoted in paragraph 16 above) was not enough to meet the requirements of that case. [21] In Villani, the Federal Court of Appeal provided guidance on how the Tribunal should assess if a person’s disability is severe, as required under the CPP. In particular, the court said that a person’s ability to work must be assessed in a real-world context. That means the General Division needed to consider the Claimant’s functional limitations and personal circumstances when evaluating his ability to work. According to Villani, the Claimant’s relevant personal circumstances include his age, level of education, language skills, work history, and life experiences. [22] The General Division referred to the Villani decision, but it committed an error of law by failing to analyze the Claimant’s case according to its principles.Footnote 14 For example, it did not draw inferences from the Claimant’s personal circumstances, nor did it assess how those circumstances affect his ability to work.Footnote 15 Issue 2: What is the appropriate remedy in this case? [23] I have decided to give the decision that the General Division should have given. [24] Despite finding that the General Division has committed an error, the Claimant argued that I should not reverse the General Division decision. Instead, I should send the file back to the General Division for a new hearing. This was needed, the Claimant submitted, so that he could address the effect of the error on the final outcome. [25] In my view, the appropriate remedy in a case should not be determined by the outcome but on the completeness of the record. This includes the written and oral evidence presented at the General Division level, along with the submissions presented at both the General and Appeal Division levels. [26] I have concluded that I have the ability and the information needed to make a final decision in this case.Footnote 16 I have reviewed all of the material in the file and listened to the recording of the General Division hearing. As a result, I see little benefit in returning the matter to the General Division for a new hearing. Issue 3: Is the Claimant entitled to a CPP disability pension? [27] No, the Claimant is not entitled to a CPP disability pension. Despite his limitations, there is evidence that the Claimant maintains some capacity to work. However, he has not tried to find a different job that would better suit his current circumstances. As a result, his application for a CPP disability pension must fail. [28] There is no dispute in this case that the Claimant’s medical conditions limit his ability to work and that he could not return to his old job as a X. In particular, the Claimant is restricted in his ability to work at or above shoulder level and to do any heavy lifting, reaching, pushing, and pulling.Footnote 17 He must also avoid overexerting himself.Footnote 18 [29] However, the Claimant’s medical team did not rule out the possibility of him doing other types of work.Footnote 19 In May 2018, for example, the Claimant’s family doctor seemed to support the Claimant’s desire to return to work on modified duties, should they become available.Footnote 20 [30] At the General Division hearing, the Claimant also confirmed that he would have returned to work if his former employer had offered him a position that was within his limitations. Similarly, the Claimant was willing to be retrained to do more light or sedentary work, but his long-term disability insurer had not yet offered him that possibility. In particular, the Claimant is thinking of going back to school to become a teacher. He also said that he has no trouble using a keyboard and mouse. [31] I recognize that the Claimant has not done any light or sedentary jobs since arriving in Canada. However, it is likely that he could retrain for that type of work. He has four years of post-secondary education from his home country, was 52 years old at the end of his minimum qualifying period, and is fluent in both French and English. Indeed, his restrictions would not prevent him from returning to school. [32] I also recognize that the Claimant has relied on his previous employer and on his long-term disability insurer to try to get him back to work. For the purposes of CPP eligibility, however, the evidence shows that the Claimant maintains an ability to work, but has not tried to find work that is better suited to his limitations. According to the Federal Court of Appeal, that means that the Claimant does not have a severe disability.Footnote 21 As a result, he does not meet the requirements for obtaining a CPP disability pension. Conclusion [33] I have concluded that the General Division committed errors of law and fact in this case. In particular, the General Division misinterpreted a transferable skills analysis report and used that report as though it was equivalent to the requirements under the CPP. The General Division also failed to do a full analysis, as required by the Villani decision. [34] In the circumstances, I decided to intervene in this case and to give the decision that the General Division should have given. While I recognize the Claimant’s limitations, he has maintained some capacity to do light or sedentary work but has not tried to find a job of that type. As a result, his disability is not severe and he does not meet the requirements for obtaining a CPP disability pension. [35] For all of these reasons, I am allowing the appeal and declaring that the Claimant is not entitled to a CPP disability pension. Heard on: October 2, 2019 Method of proceeding: Teleconference Appearances: Stéphanie Pilon, Representative for the Appellant F. L., Respondent Mark S. Grossman, Representative for the Respondent Footnotes Footnote 1 Section 58(1) of the DESD Act describes the three possible errors (also known as grounds of appeal) that allow me to intervene in a case. Footnote 2 DESD Act, s 58(1)(b). Footnote 3 Section 58(1)(c) of the DESD Act defines those erroneous findings of fact that allow me to intervene in a case. Footnote 4 Garvey v Canada (Attorney General), 2018 FCA 118 at para 6. Footnote 5 These powers are set out in section 59(1) of the DESD Act. Footnote 6 Villani v Canada (Attorney General), 2001 FCA 248. Footnote 7 CPP, s 42(2)(a). Footnote 8 General Division decision at para 25. Footnote 9 The transferable skills analysis is on pages GD5-43 to 45. The General Division refers to it in paragraphs 15 and 25 of its decision. Footnote 10 The Claimant’s earnings are summarized at page GD2-4 and were around $27,500 in 2014, his last full year of earnings. Footnote 11 General Division decision at paras 25 and 26. Footnote 12 GD5-45. Footnote 13 In 2017, for example, it was $15,763.92. Footnote 14 Garrett v Canada (Minister of Human Resources Development), 2005 FCA 84 at para 3. Footnote 15 Lalonde v Canada (Minister of Human Resources Development), 2002 FCA 211 at para 17. Footnote 16 Section 59(1) of the DESD Act establishes my power to give the decision that the General Division should have given. See also section 64(1) of the DESD Act and the Federal Court of Appeal’s decision in Nelson v Canada (Attorney General), 2019 FCA 222 at paras 16–18. Footnote 17 See, for example, GD2-79, GD5-25, and GD5-46. Footnote 18 General Division decision at para 20. Footnote 19 See, for example, the reports of Dr. Geddes at pages GD5-16 and GD3-50 and of Dr. Dinh at page GD5-46. Footnote 20 GD5-51. Footnote 21 Inclima v Canada (Attorney General), 2003 FCA 117 at para 3.