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

R. C. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2018-03-26 Neutral citation 2018 SST 277 Reference number AD-18-61 Member Nancy Brooks Division Appeal Division Decision Application for leave to appeal granted Decision Content On this page Decision Overview Background Submissions Issues Analysis Conclusion Decision and Reasons Decision [1] The application for leave to appeal is granted. Overview [2] In September 2015, the Applicant, R. C., fell a distance of four to five feet onto his back while trying to repair a clothesline in his backyard. He was diagnosed with a fracture of the thoracic spine at T11 and T12. [3] The Applicant applied for Canada Pension Plan (CPP) disability benefits on September 20, 2016. The Respondent, the Minister of Employment and Social Development, denied his application initially and upon reconsideration. [4] The Applicant’s appeal to the General Division was dismissed. He seeks leave to appeal that decision. Background [5] The Applicant has a Grade 12 education and a two-year diploma in carpentry. Prior to his accident, he was employed as a floor installer. After his accident, his employer told him he would not want him back because he could not do the job as a result of his back injury. At the hearing before the General Division, R. C. described the pain he experiences, including back pain, pain down one arm, leg pain and tingling in his foot. He also has been treated for a number of years, going back before his accident, for depression and a seizure disorder. He testified that these two conditions were under control through medication. He testified that overall he was in good health with regular work attendance before his fall. [6] The Applicant testified that, in January 2017, he found temporary work at a factory where he worked as a cleaner. He was hired to replace another employee who was off with an injury. His primary duty was to clean the washrooms and, although he had difficulty with some aspects of the job (e.g. he could not lift heavy boxes of toilet paper and paper towels without assistance), he worked eight-hour days, five days a week from January until late April or early May. He testified that his employer helped to make sure that he worked long enough to qualify for Employment Insurance (EI) benefits. The job ended when the injured employee returned to work. [7] The Applicant testified before the General Division that he continues to experience pain in his back, arm and leg. He testified that he had recently been referred back to Dr. Charest, the neurosurgeon who last saw him in 2015 when he fell, for an assessment of ongoing pain. He had not yet seen Dr. Charest at the time of the hearing. [8] The Applicant’s minimum qualifying period (MQP) ends on December 31, 2018. He was 50 years old on the date of the General Division hearing. The General Division member stated that, because his MQP date was in the future, her task was to determine whether the Applicant had established that it was more likely than not that he was disabled, as defined in the CPP, on or before the hearing date on December 14, 2015. [9] The General Division concluded the Applicant retained the residual capacity to work, given his job as a cleaner from January to April or May 2017. She noted that he worked full-time hours, five days a week, and reported lifting restrictions but was otherwise able to perform the job. Although he experienced some pain, he did his job without any pain medication. [10] The member found that, while the Applicant had been compliant with treatment, as his condition was still under investigation, he had not exhausted all treatment options and it remained to be seen what diagnosis and/or treatment options would come from his referral to Dr. Charest. The General Division concluded that, even when the Applicant’s conditions were considered in their totality, the evidence did not support a finding that his disability was severe or that he was incapable regularly of pursuing any substantially gainful occupation as of the date of the hearing. Submissions [11] In his application for leave to appeal, the Applicant submits that he was treated unfairly because the General Division member is not a doctor and, unless she is a doctor, she could not understand his condition and the amount of pain he is in.Footnote 1 He wishes to know what doctors reviewed his file and he asks questions about various medical terms and treatments that he would like to have answered, apparently in an attempt to test whether the Tribunal has the medical training he contends is necessary to carry out its task.Footnote 2 He says the General Division member asked him what a Jewitt brace is when she ought to have already known;Footnote 3 her decision was based on her opinion, not the facts;Footnote 4 and she was not qualified to judge or assess his injury because she is not a doctor.Footnote 5 He wishes to have name of the physician whom the member “used to justify her reason for using Gaudet v. Canada in her report”.Footnote 6 [12] The Applicant submits that he is unable to work due to the pain and describes his visit to the emergency department immediately after his accident in September 2015. He states he was not allowed to move for two to three days after the brace was put on, and he had to lie flat on his back throughout this period.Footnote 7 He describes the pain he is experiencing at present. [13] With respect to the cleaning job at the factory, he says he “never got a chance to finish what I had to say”.Footnote 8 He states it was a friend who got him this job and, although he was paid for an eight-hour day, he really worked only two to three hours per day and “the rest of the day was trying to look busy”Footnote 9. He also states that he has gone to job interviews but when he tells prospective employers about his back injury, they will not hire him because of it.Footnote 10 He asks the Tribunal to provide a list of jobs he could apply for in the community where he lives and states that jobs are “very few and far between” where he lives, and he cannot drive to work in Charlottetown because the pain is too much to bear.Footnote 11 [14] The Applicant states that he was approved for the disability tax credit (by the Canada Revenue Agency) and “they believed my struggles with this injury but yet you don’t”.Footnote 12 [15] The Applicant states that the General Division member based her decision on the fact that he was not taking pain medication. He questions what kind of pills he should take and how he should pay for them. He also states that, if he was on pain medication and felt better, he might injure himself by trying to do something he should not do in his condition.Footnote 13 [16] The Applicant states that although 90 minutes were reserved for the hearing, it did not last that long and he did not “have a chance to argue or question the last decision”.Footnote 14 Issues [17] Based on the Applicant’s submissions, the issues before me are as follows: Issue 1: Is there an arguable case that the General Division failed to observe a principle of natural justice because it failed to allow enough time for the Applicant to present his case? Issue 2: Is there an arguable case that the General Division failed to observe a principle of natural justice or otherwise acted beyond its jurisdiction because the General Division member was not a physician? Issue 3: Is there an arguable case that the General Division erred in law because it did not consider the totality of the Applicant’s medical condition? Issue 4: Is there an arguable case that the General Division member erred in law because she failed to consider whether the Applicant’s efforts at obtaining employment were unsuccessful because of his health condition? Issue 5: Do the other grounds raised by the Applicant have a reasonable chance of success? Analysis [18] In his submissions, the Applicant seeks assurance that the Tribunal has read all of his documentation.Footnote 15 He also states that he does not have the money to hire a lawyer and he does not care about “all this legal” language.Footnote 16 [19] I have read all of the documentation filed before the General DivisionFootnote 17 and the Appeal Division.Footnote 18 I have considered all of the Applicant’s submissions made on this application for leave to appeal, and I have reviewed all of the evidence that was before the General Division, consisting of the documents filed with the General Division and the recording of the hearing. [20] I also wish to assure the Applicant that many, if not most, claimants who appear before the Tribunal do not have legal representation. However, regardless of whether a claimant is represented by a lawyer or another type of representative, the Tribunal has a duty to consider all the evidence and submissions in order to reach a result that accords with the law and the facts. [21] The decisions of the Tribunal are bound by legal constraints set out in its governing legislation: the CPP and the Department of Employment and Social Development Act (DESDA). The CPP imposes definitions of what constitutes a severe disability and a prolonged disability. The Tribunal has no authority or power to diverge from those definitions. The DESDA deals with procedural and other matters, including specifying the grounds for appealing to the Appeal Division. The Tribunal is also bound by decisions made by the courts, including the Federal Court and the Federal Court of Appeal, which interpret the statutory provisions that apply to the CPP disability benefits regime. Because of this legal framework, it is often necessary to provide an explanation in the decision that refers to the statute and the court cases. [22] An appeal to the Appeal Division may be brought only if leave to appeal is granted.Footnote 19 Furthermore, leave to appeal must be refused if the Appeal Division is satisfied that the proposed appeal has no reasonable chance of success.Footnote 20 In this context, having a reasonable chance of success means “having some arguable ground upon which the proposed appeal might succeed”.Footnote 21 [23] As mandated by the DESDA, there are only three grounds on which an appeal may be brought to the Appeal Division: 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.Footnote 22 [24] Therefore, the question I must answer on this application is whether any of the arguments put forward by the Applicant fall within one of the three grounds under s. 58(1) of the DESDA and has a reasonable chance of success on appeal. Issue 1: Is there an arguable case that the General Division failed to observe a principle of natural justice because it failed to allow enough time for the Applicant to present his case? [25] In the administrative law context, the principles of natural justice have been equated to a duty of fairness. The principal purpose of the duty of fairness is to provide a meaningful opportunity for those whose rights are at stake to bring relevant evidence and arguments to the attention of the decision-maker and to ensure that the decision-maker fairly and impartially considers them.Footnote 23 [26] The hearing before the General Division was carried out by teleconference. In the notice of hearing issued by the General Division,Footnote 24 90 minutes were set aside for the hearing. I have listened to the entire recording of the General Division hearing, which lasted just under 50 minutes. The Applicant had a representative before the General Division. The representative told the presiding member that she preferred the member to put her questions to the Applicant, and then she, the representative, would ask any remaining questions that had not been covered by the member. The hearing proceeded as requested by the Applicant’s representative. [27] The Applicant responded to the member’s questions in a forthright and direct manner. Once the member had completed her questioning, the Applicant’s representative put her questions to the Applicant. The representative then made her submissions. The member then asked the representative whether she had any other questions or submissions and the representative replied that she did not. R. C. made submissions about the impact of his injury on his quality of life. He completed his comments before the member moved on to make her concluding remarks describing next steps and when the Applicant could expect to receive her decision. The member at no time rushed the representative or the Applicant when he was giving his evidence. [28] I conclude that the argument that the General Division failed to observe a principle of natural justice because the member did not provide sufficient time for the Applicant to present his evidence and make submissions does not raise an arguable ground upon which the proposed appeal might succeed. Issue 2: Is there an arguable case that the General Division failed to observe a principle of natural justice or otherwise acted beyond its jurisdiction because the General Division member was not a physician? [29] The Applicant submits that he was treated unfairly because the General Division member is not a doctor and, unless she is a doctor, she could not understand his condition and the amount of pain he is in. [30] Part 5 of the DESDA contains provisions for the establishment and administration of the Tribunal.Footnote 25 It imposes no requirement that individuals appointed to the Tribunal have any particular training. There is therefore no requirement that members appointed to the Income Security section of the Tribunal—i.e. members who preside over appeals concerning CPP disability pensions—be physicians or have any other type of medical training. [31] There is no freestanding requirement as a principle of natural justice that a trier of fact must have medical training in order to consider medical evidence. It should be remembered that judges in Canadian courts of law are called upon to assess evidence, including medical evidence, that is outside their area of training or expertise. [32] The Applicant is troubled by the fact that the General Division member asked what a Jewitt brace is, as he believes this demonstrates the member was not qualified to make a decision on his entitlement to a disability pension. However, her question was not inappropriate. The medical documentation before the General Division referred to the fact that Dr. Charest, a neurosurgeon, prescribed use of a Jewitt brace for a period of time after the Applicant’s accident. However, the documentation filed did not explain what a Jewitt brace is. It was entirely appropriate for the member to ask what a Jewitt brace is, how it was used by the Applicant, and how it affected his movement and recovery. Putting this evidence in through the Applicant’s testimony was the only way to ensure this information was before the General Division member when she made her decision. [33] The Applicant asks for the name of the physician whom the member “used to justify her reason for using Gaudet v. Canada in her report”. The member cited the decision of the Federal Court of Appeal in Gaudet v. Canada (Attorney General)Footnote 26 and included a quote from the decision at para. 36 of her reasons. She cited Gaudet for the principle that, even though many applicants for a CPP disability pension are suffering from pain and discomfort, this does not mean they will qualify for a disability pension because the test of “severe and prolonged” under the CPP is a difficult one to meet. The principle cited by the General Division member applies to the Applicant and every other claimant. There is no requirement that a Tribunal member consult a physician before citing legal principles that apply to the CPP disability regime. [34] I conclude that the argument that the General Division failed to observe a principle of natural justice because the presiding member is not a physician does not raise an arguable ground upon which the proposed appeal might succeed. Issue 3: Is there an arguable case that the General Division erred in law because it did not consider the totality of the Applicant’s medical condition? [35] The General Division’s task was to determine whether the Applicant had a severe and prolonged disability on or before the date of the hearing and continuously. Under the CPP, a disability is “severe” if “by reason thereof the person […] is incapable regularly of pursuing any substantially gainful occupation”.Footnote 27 [36] In Villani v. Canada (Attorney General),Footnote 28 the Federal Court of Appeal directedthe General Division to adopt a “real-world” approach when assessing whether a disability is severe. The “real-world” approach requires it to determine whether a claimant, in the circumstances of his or her background and medical condition, is employable, i.e. capable regularly of pursuing any substantially gainful occupation. Employability is not to be assessed in the abstract, but rather in light of “all of the circumstances.” A claimant’s circumstances fall into two categories: The claimant’s background: Matters such as “age, education level, language proficiency and past work and life experience” are relevant here;Footnote 29 and The claimant’s medical condition: This is a broad inquiry, requiring that the claimant’s condition be assessed in its totality. All of the possible impairments of the claimant that affect employability—both physical and psychological—are to be considered, not just the biggest impairments or the main impairment.Footnote 30 [37] The member cited Villani in her analysis.Footnote 31 She considered the Applicant’s background factors at para. 40 of her decision. At para. 39 of her decision, she correctly instructed herself that a claimant’s medical condition is to be assessed in its totality. She proceeded to consider not only the Applicant’s physical injuries but also his seizure condition and depression. I find the Applicant has not raised an arguable case that the General Division did not consider the totality of his medical condition when determining whether his disability was severe as of the hearing date. [38] While the Applicant disputes the General Division’s assessment of the evidence and puts this forward as a ground of appeal, he is essentially attempting to persuade me to reassess the evidence and come to a different conclusion. This is beyond the Appeal Division’s authority. An appeal to the Appeal Division does not provide an opportunity to re-litigate or re-prosecute the claim. [39] I have concluded that the argument that the General Division member erred in law because she did not consider the totality of the Applicant’s medical condition does not raise an arguable ground upon which the proposed appeal might succeed. Issue 4: Is there an arguable case that the General Division member erred because she failed to consider whether the Applicant’s efforts at obtaining employment were unsuccessful because of his health condition? [40] The Applicant testified that he worked between January and April or May 2017 as a cleaner at a factory. He replaced another employee who was off work due to an injury. He testified that he was given the job so he could qualify for regular EI benefits again because his EI benefits had run out. He testified that he worked full-time hours, eight hours a day, five days a week from the beginning of January to the last week in April or the first week in May. He testified that he did not take pain medication while he was performing this job. He testified that he needed help lifting heavy boxes of toilet paper and paper towels, but otherwise was able to perform the job. The job came to an end when the employee he was replacing returned to work. Based on this evidence, the General Division concluded that the Applicant retained work capacity. [41] Where there is evidence of work capacity, a person must show that effort at obtaining and maintaining employment has been unsuccessful by reason of the person’s health condition.Footnote 32 The evidence relating to the cleaning job supported the member’s conclusion that the Applicant retained the capacity to work. The job did not end because of his health condition, but rather because the job came to an end. [42] Before the General Division, the Applicant testified that he was “online” every day looking for work, but he was limited in what he could apply for due to his pain issues. [43] In his application for leave to appeal, the Applicant states that he has gone to job interviews, but when he tells prospective employers about his back injury, they will not hire him because of it.Footnote 33 Although the Applicant did not testify to this before the General Division, this evidence was contained in documentation that was before the General Division,Footnote 34 in his request for reconsideration to the Minister, where he stated: All of my job interview when [went] good but they could all see that there was something wrong with my back its [it’s] not something I can hide. I would have to tell them about my injury and then they would say sorry but we can’t take the chance on hiring you. [44] At the hearing, neither the General Division member nor the Applicant’s representative questioned the Applicant about this statement. The General Division member appeared to be unaware of this evidence at the hearing and she did not mention or consider this evidence in her reasons. [45] I conclude that there is an arguable case that the General Division member erred in law by not considering whether the Applicant had met his burden to demonstrate that his efforts to obtain work were unsuccessful by reason of his health condition. [46] I grant leave to appeal on this basis. Issue 5: Do the other grounds raised by the Applicant have a reasonable chance of success? Availability of work [47] The Applicant’s position is that he is unable to work. He has asked the Tribunal to provide him with a list of jobs he could apply for and states that where he lives, jobs are “very few and far between”. [48] According to the Supreme Court of Canada, in the context of the CPP, “the yardstick is employability”: an individual may have severe impairments but will not be entitled to CPP benefits if those impairments, serious though they may be, do not prevent him or her from earning a living.Footnote 35 Under the CPP regime, severity is not determined based on a person’s inability to perform his or her regular job, but rather on an inability to perform any substantially gainful occupation.Footnote 36 Therefore, the fact that the Applicant could not work again as a floor installer is not relevant to the question of whether his disability was “severe” as defined in the CPP. Furthermore, the determination of severity is tied to whether a claimant retains a capacity to work, even though he or she has an impairment. [49] The fact that suitable work may not be available to a claimant is irrelevant to the question of whether the disability meets the definition of severe under the CPP. The Federal Court of Appeal has directed that labour market conditions—i.e. the availability of work in the labour market—are not relevant to the question of whether an individual’s disability meets the definition of “severe” under the CPP. [50] I conclude that the Applicant’s submission that the General Division erred because there may be few jobs where he lives has no reasonable chance of success on appeal. Disability tax credit [51] The Applicant submits that Canada Revenue Agency (CRA) has approved him for a disability tax credit, saying, “[T]hey believed my struggles but yet you don’t”. [52] There was no evidence before the General Division that the Applicant was entitled to a disability tax credit. Regardless, the conditions applicable to eligibility for a disability tax credit under the Income Tax Act are not the same as the eligibility requirements for a CPP disability pension. Therefore, the fact that the Applicant may have qualified for a CRA disability tax credit is irrelevant to the determination of his eligibility for a CPP disability pension. [53] I conclude this argument has no reasonable chance of success on appeal. Pain medication [54] The Applicant objects to the General Division member’s reliance on the fact that he was not taking pain medication. He questions what kind of pills he should take and how he should pay for these. He also states that if he was on pain medication and felt better, he might injure himself by trying to do something he should not do in his condition.Footnote 37 [55] The General Division’s task involved assessing the impact of the Applicant’s medical condition on his capacity to work. In carrying out this task, it was appropriate for the General Division member to consider the fact that, as the Applicant testified, he did not take any pain medication to manage his pain. She had no obligation to specify what kinds of medication he could or should take. Nor, in the absence of any evidence on the point, was she required to assess whether he might injure himself if he took pain medication. [56] I conclude this argument does not have a reasonable chance of success on appeal. New evidence [57] In his materials filed with the application for leave to appeal, the Applicant has provided new facts about his cleaning job that were not in evidence before the General Division. He states, “I never got a chance to finish what I had to say it was a friend who got me this job, yes I was paid for an 8-hour day, I only really worked 2 to 3 hours per day the rest of the day was trying to look busy”.Footnote 38 [58] As noted earlier in these reasons, I have listened to the recording of the hearing and the Applicant was given ample time to present his testimony. The hearing was not rushed. The Applicant was asked if the cleaning job was part-time to which he replied that it was not part-time and he worked eight hours a day, five days a week. Therefore, I do not accept that the hearing was conducted in a manner that did not provide the Applicant an opportunity to put the facts into evidence. No issue of fairness arises in relation to his evidence about the cleaning job. [59] As the Federal Court has stated, “[n]ew evidence is not permissible at the Appeal Division as it is limited to the grounds in subsection 58(1) and the appeal does not constitute a hearing de novo.”Footnote 39 Thus, the Appeal Division’s task is to determine whether the General Division committed an error falling within the scope of s. 58(1) of the DESDA on the basis of the evidence before it. For this reason, I cannot consider this new evidence—i.e. the Applicant’s statement that, although he was paid for eight-hour days, he only worked two to three hours per day—on this application and will not consider it on the appeal on the merits. Conclusion [60] The Application is granted on the basis that there is an arguable case that the General Division may have erred in law by failing to consider whether the Applicant’s efforts to obtain employment failed because of his health condition. [61] Leave is denied on all the other grounds and arguments raised by the Applicant in his application for leave to appeal because I have determined that none of those grounds or arguments has a reasonable chance of success on appeal. [62] Within 45 days after the date of this decision, the parties may file submissions with the Appeal Division or file a notice with the Appeal Division stating that they have no submissions to file in compliance with section 42 of the Social Security Tribunal Regulations. [63] If submissions are made, they shall be restricted to the potential error of law identified, i.e. that the General Division may have erred in law by failing to consider whether the Applicant’s efforts to obtain employment failed because of his health condition. The submissions shall be made on the basis of the evidence before the General Division because no new evidence will be permitted on the appeal. Submissions by: R. C., on his own behalf Footnotes Footnote 1 AD1-3, AD1B-1. Footnote 2 AD1B-1 and AD1B-3. Footnote 3 Ibid. Footnote 4 AD1C-1 Footnote 5 AD1C-2 Footnote 6 AD1E-2. Footnote 7 AD1-7. Footnote 8 AD1-12. Footnote 9 AD1-12. Footnote 10 AD1-12. Footnote 11 AD1-2 and AD1-14. Footnote 12 AD1F-3. Footnote 13 AD1F-7. Footnote 14 AD1-11. Footnote 15 AD1-14, AD1B-3, AD1D-1 Footnote 16 AD1-3. Footnote 17 GD1 through GD13. Footnote 18 AD1 and AD1A through AD1F. Footnote 19 DESDA, s. 56(1). Footnote 20 DESDA, s. 58(2). Footnote 21 Osaj v. Canada (Attorney General), 2016 FC 115, at para. 12. Footnote 22 Subsection 58(1) of the DESDA. Footnote 23 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, at paras. 22 and 28. Footnote 24 GD0. Footnote 25 DESDA, ss. 45 to 51. Footnote 26 2013 FCA 254. Footnote 27 Canada Pension Plan, s. 42(2)(a)(i). Footnote 28 2001 FCA 248. Footnote 29 Villani at para. 38. Footnote 30 Bungay v. Canada (Attorney General), 2011 FCA 47, at para. 8. Footnote 31 Reasons, para. 55. Footnote 32 Inclima v. Canada (Attorney General),2003 FCA 117. Footnote 33 AD1-12. Footnote 34 GD2-9. Footnote 35 Granovsky v. Canada (Minister of Employment and Immigration), 2000 SCC 28, at para. 28. Footnote 36 Klabouch v. Canada (Social Development), 2008 FCA 33. Footnote 37 AD1F-7. Footnote 38 AD1-12. Footnote 39 Marcia v. Canada (Attorney General), 2016 FC 1367, at para. 34.