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

R. M. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2018-03-29 Neutral citation 2018 SST 300 Reference number AD-16-349 Member Neil Nawaz Division Appeal Division Decision Appeal allowed Related decisions SST - R. M. v. Minister of Employment and Social Development - 2017 SSTADIS 83 - 2017-03-02 - Appeal Division Decision Content On this page Decision Overview Preliminary matter Issues Analysis Conclusion Decision and Reasons Decision [1] The appeal is allowed. Overview [2] The Appellant, R. M., was born in X and has a post-secondary diploma in construction technology management. He worked as a sales supervisor for a gas supplier for more than 20 years. In 1994, he sustained multiple injuries—including spinal disc compression fractures—in a motor vehicle accident. After an 18-month recovery, he returned to work, although he continued to experience back pain. He claims that, by 2010, the pain had progressed to the point where he could no longer carry on working. [3] In March 2012, R. M. applied for a disability pension under the Canada Pension Plan. The Respondent, the Minister of Employment and Social Development (Minister), refused the application because it found that his disability was not “severe” and “prolonged,” as defined by the legislation, as of his minimum qualifying period (MQP), which ended on December 31, 2013. While the Minister acknowledged that R. M. was no longer capable of working at his previous occupation, it concluded that he was still capable of some type of work. [4] Steven Yormak, R. M.’s legal counsel, appealed the Minister’s determination to the General Division of the Social Security Tribunal. The General Division held an in-person hearing and, in a decision dated January 13, 2016, dismissed R. M.’s appeal, finding “very little objective evidence” of disability as of the MQP. While the General Division found that R. M. was no longer capable of heavy lifting, it saw no reason why he could not manage sedentary work. [5] In February 2016, Mr. Yormak requested leave to appeal from the Tribunal’s Appeal Division, alleging that the General Division had committed multiple factual and legal errors. [6] In a decision dated March 2, 2017, the Appeal Division granted unrestricted leave to appeal because it saw at least a reasonable chance of success for some of the factual grounds—provided that Mr. Yormak was able to identify specific instances in the record where the General Division ignored or misconstrued material evidence. Preliminary matter [7] In advance of the teleconference hearing before the Appeal Division, Mr. Yormak submitted various medical reports,Footnote 1 which appear to not have been presented to the General Division. The Minister argued, on various occasions, that these documents should be given no consideration. [8] On reflection, I decided not to admit new medical evidence for this appeal, although I did consider Mr. Yormak’s accompanying written arguments where they were relevant to the issues at hand. According to the Federal Court’s decision in Belo-Alves v. Canada,Footnote 2 the Appeal Division is not ordinarily a forum in which new evidence can be introduced, given the constraints of subsection 58(1) of the Department of Employment and Social Development Act (DESDA), which do not give the Appeal Division authority to consider new evidence or entertain arguments on the merits of an appellant’s disability claim. Issues [9] Under theDESDA, the only grounds of appeal to the Appeal Division are that the General Division erred in law, failed to observe a principle of natural justice, or 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 3 [10] The issues before me are as follows: Issue 1: How much deference should the Appeal Division extend to General Division decisions? Issue 2: Did the General Division adequately consider R. M.’s subjective evidence about the impact of chronic pain disorder (CPD) on his functional capacity? Issue 3: Did the General Division base its decision on an erroneous finding that there were “significant inconsistencies” in R. M.’s evidence. Specifically, did the General Division err in finding that R. M. failed to pursue a referral to a back surgeon? regularly pulled weeds in his garden? offered contradictory evidence about the regularity of his use of a treadmill or tread climber? offered contradictory evidence about his capacity to lift weights? was able to walk more than 500 feet by virtue of using his tread climber every second day for half an hour? Analysis Issue 1: How much deference should the Appeal Division show the General Division? [11] Until recently, it was accepted that appeals to the Appeal Division were governed by the standards of review set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick.Footnote 4 Where errors of law or failures to observe principles of natural justice were alleged, the applicable standard was held to be correctness, reflecting a lower threshold of deference deemed to be owed to a first‑level administrative tribunal. Where erroneous findings of fact were alleged, the standard was held to be reasonableness, reflecting a reluctance to interfere with findings of the body tasked with hearing factual evidence. [12] The Federal Court of Appeal decision Canada v. HuruglicaFootnote 5 rejected this approach, holding that administrative tribunals should not use standards of review that were designed to be applied by appellate courts. Instead, administrative tribunals must look first to their home statutes for guidance in determining their role. This premise led the Court in Huruglica to determine that the appropriate test flows entirely from an administrative tribunal’s governing legislation: “The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent […].” [13] The implication here is that the standards of reasonableness or correctness will not apply unless those words, or their variants, are specifically contained in the tribunal’s home statute. Applying this approach to the DESDA, one notes that paragraphs 58(1)(a) and (b) do not qualify errors of law or breaches of natural justice, which suggests that the Appeal Division should afford no deference to the General Division’s interpretations. The word “unreasonable” is not found in paragraph 58(1)(c), which deals with erroneous findings of fact. Instead, the test contains the qualifiers “perverse or capricious” and “without regard for the material before it.” As suggested by Huruglica, those words must be given their own interpretation, but the language suggests that the Appeal Division should intervene when the General Division bases its decision on an error that is clearly egregious or at odds with the record. Issue 2: Did the General Division adequately consider subjective evidence involving CPD? [14] R. M. submitted that the General Division disregarded evidence that he suffers from chronic pain. On balance, I must disagree. [15] R. M. cited the Supreme Court of Canada in Nova Scotia v. MartinFootnote 6 and the Pension Appeals Board in Hunter v. Canada,Footnote 7 which have recognized that chronic pain is a compensable disability, even though it is generally not accompanied by objective findings. However, it is also true that merely invoking a diagnosis of chronic pain does not necessarily lead to a finding of disability—a decision-maker must also conduct an inquiry into the chronic pain’s impact on the claimant’s functional capacity.Footnote 8 My review indicates that the General Division did, in fact, recognize that R. M. suffers from chronic pain, acknowledging its persistence numerous timesFootnote 9 in the summary of the medical evidence. The General Division also relayed Mr. Yormak’s submissionFootnote 10 that his client “has intractable lower and thoracic back pain that has not responded to all recommended treatment.” The General Division accepted that R. M.’s physical symptoms were “long-standing,”Footnote 11 dating back to his 1994 motor vehicle accident, and based its analysis on the premise that his ongoing pain was real. However, it ultimately found that, notwithstanding his pain, he was still capable of sedentary work and therefore did not meet the severity threshold under the Canada Pension Plan. [16] R. M. also argued that chronic pain cannot be properly assessed without taking into account a claimant’s subjectively felt symptoms. He alleges that the General Division disregarded his oral testimony about his chronic pain and failed to make a finding about his credibility on the subject. [17] I am unconvinced by this argument. R. M. has not specified what material aspect of his testimony was ignored and has thus not rebutted the general presumption set out by the Federal Court of Appeal in Simpson v. CanadaFootnote 12 that a decision-maker is presumed to have considered all the evidence and need not refer in its reasons to each and every piece of evidence before it. [18] In any event, I note that the General Division’s decision did, in fact, contain a lengthy summaryFootnote 13 of R. M.’s testimony, which was almost entirely concerned with the impact of pain on his life. The following extracts indicate that the General Division attempted to relay R. M.’s account of his struggle: He kept throwing his back out but he tried to work through the pain until March 2010 when his family doctor told him to stop working due to the pain. He testified that he rises at 7 am after a restless sleep during which he wakes every two to three hours trying to get comfortable. After half an hour the pain increases and he goes to lie down in the recliner again. If his pain allows he walks to the mail. The Appellant testified that the more he sits the more his pain level increases […]. The Appellant was asked to describe his condition in December 2013. He answered that he had pain in intensity from 5 – 7 out of 10 every day. The pain is radiating, pulsing pain that affects his pelvic region and legs. The Appellant testified that he can sit for about half an hour without pain but that when he sits too long the pain level goes up. He can’t do repetitive motion: twisting or bending; and if he reaches (like into the fridge) his pain will go up. Repetitive motions with his left or right hand exacerbates the pain and if he writes for more than five minutes his left hand cramps. [19] In light of the above, I find it difficult to accept R. M.’s submission that the General Division ignored his testimony about his pain. Moreover, it is clear that the General Division subsequently considered his testimony when it undertook its analysis of the evidence. In paragraph, 45, the General Division found that R. M.’s testimony that he could not guarantee regular attendance at a sedentary job was at odds with the bulk of the medical findings. In paragraph 47, the General Division noted R. M.’s testimony about the pain he experiences when reaching into his refrigerator, standing for prolonged periods, walking to his mailbox and writing with his dominant hand. In doing so, the General Division also assessed R. M.’s credibility, although to his detriment. I will have more to say about this in the next section. Issue 3: Did the General Division base its decision on an erroneous finding that there were “significant inconsistencies” in R. M.’s evidence? [20] Mr. Yormak took issue with each and every one of the findings enumerated in paragraph 47, in which the General Division identified “significant inconsistencies” in R. M.’s evidence. Having reviewed all of these allegations against the record, I agree that at least one of them qualifies as an error under paragraph 58(1)(c) of the DESDA. [21] In subparagraph 47(a), the General Division noted that R. M. had asked to see a back surgeon, “yet no referral was made.” The General Division found that R. M. had failed to follow up on the referral and this indicated that his back problem was not as significant as stated. [22] Mr. Yormak claims that, in fact, he was referred to a back clinic, which ultimately determined that he was not a candidate for surgery. In support of his claim that the General Division disregarded material evidence, Mr. Yormak submitted an undated form letter from the X Spine Centre advising R. M. that a review of his imaging reports indicated that surgical intervention was not warranted,Footnote 14 as well as a checklist from the same clinic, date-stamped October 22, 2012.Footnote 15 My review of the record indicates that, contrary to the Minister’s assertions, the undated form letter was in fact before the General Division,Footnote 16 although it appears that the checklist was not. [23] Thus, I agree with Mr. Yormak that, contrary to the General Division’s finding, R. M. was assessed for back surgery. This was on the record. First, there was the letter, dated October 2, 2012,Footnote 17 that initiated the referral, in which Dr. John Mutu-Grigg wrote, “To this end, I have sent a referral to the Spine Center for a surgical referral to see if there is anything further that can be done. I have warned him that there is a significant possibility that nothing further can be done for this.” The General Division summarized this report in paragraph 17, but noted, “There is no reference in the record that the Appellant was referred to a spinal surgeon.” [24] Second, the undated form letter from the X Spine Centre (which I note went unmentioned in the General Division’s decision) indicates that R. M. was assessed for surgery, although not in person. It is clear that the clinic’s practice is to screen patients by first reviewing their medical records. In this case, a team of orthopedic surgeons and consultants concluded, “After a careful review of the referral information and imaging reports provided, I regret to inform you that your patient’s symptoms will likely not be helped by surgical intervention at this time.” [25] The above information was confirmed at the in-person hearing that took place on November 18, 2015. At 1:11:00 of the audio recording of the hearing, the discussion turned to whether R. M. had ever been referred to a back specialist, and it is apparent that both Mr. Yormak and the presiding General Division member were unsure whether R. M. had been assessed for surgery, either at the request of Dr. Chapeskie (the Appellant’s family physician) or Dr. Death (his physiatrist). It is clear that they expected such a referral and assessment would have necessarily involved a personal examination. However, R. M. told the General Division that he had asked Dr. McCalden for a referral. “He had the back department at X X, in the orthopedic section, look at my MRI and my CT scans and my x-rays.” This testimony was not reflected in the General Division’s decision. [26] Despite documentary and oral evidence indicating that R. M. was in fact assessed for back surgery, the General Division found otherwise. This is an erroneous finding of fact made without regard for the record, but it is also a material error, because the General Division ultimately based part of its decision on it. In paragraph 46, the General Division noted Mr. Yormak’s submission that his client was credible because “none of his treating physicians had suggested that the Appellant was exaggerating or malingering.” It is obvious that the General Division intended the examples listed in paragraph 47 to rebut that assertion, highlighting what it deemed to be “significant inconsistences.” First and foremost was what it characterized as a disconnect between R. M.’s expressed desire to seek treatment for his back and his supposed failure to “follow up on his requests.” As we have seen, there was no disconnect, but the General Division’s error led it to draw an adverse inference against R. M. The error underlay the General Division’s finding that R. M.’s statements—in his testimony, in his prior written correspondence and in histories relayed by the medical reports—were less than credible. Indeed, the General Division went as far as to suggest that R. M. was magnifying his pain, which it speculated “was not as significant as he would have the Tribunal believe.” [27] Whether R. M. was ever a candidate for back surgery is irrelevant to this inquiry. As it happens, there was evidence on file that he was not, although the General Division appears not to have noticed it. What matters is that the General Division erred in finding that R. M. was less than diligent about pursuing a surgical option and then drew from it an unwarranted negative inference about his credibility. Conclusion [28] The appeal is allowed. Having found merit on one ground of appeal, I see no need to address R. M.’s other allegations of factual error. [29] Section 59 of the DESDA sets out the remedies that the Appeal Division can give on appeal. To avoid any apprehension of bias, it is appropriate, in this case, that the matter be referred back to the General Division for a de novo hearing before a different member. Heard on: Method of proceeding: Appearances: February 2, 2018 Teleconference R. M., Appellant Steven Yormak, Representative for the Appellant Penny Brady, Representative for the Respondent A. C., Observer M. R., Observer S. J., Observer Footnotes Footnote 1 Contained in AD1B (submitted March 16, 2016), AD7 (September 21, 2017) and AD12 (December 21, 2017). Footnote 2 Belo-Alves v. Canada (Attorney General),[2015] 4 FCR 108, 2014 FC 1100. Footnote 3 Subsection 58(1), DESDA. Footnote 4 Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9. Footnote 5 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93. Footnote 6 Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 SCR 504, 2003 SCC 54. Footnote 7 Hunter v. Canada (Minister of Social Development) (February 6, 2007), CP23431 (PAB). Footnote 8 Minister of National Health and Welfare v. Densmore (June 2, 1993), CP 2389 (PAB). Footnote 9 General Division decision, paragraphs 10, 14, 18 and 24. Footnote 10 General Division decision, paragraph 36. Footnote 11 General Division decision, paragraph 39. Footnote 12 Simpson v. Canada (Attorney General),2012 FCA 82. Footnote 13 General Division decision, paragraphs 25–35. Footnote 14 See AD1B-11. Footnote 15 See AD1B-12. Footnote 16 See GD7-50. Footnote 17 See GD3-8. Dr. Mutu-Grigg, who signed the letter, did so in service of Dr. Richard W. McCalden, an orthopedic surgeon, with whom he was completing a clinical fellowship.