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

S. F. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2017-01-04 Neutral citation 2017 SSTADIS 3 Reference number AD-16-301 Member Janet Lew Division Appeal Division Decision Application for leave to appeal granted Related decisions SST - S. F. v. Minister of Employment and Social Development - 2017 SSTADIS 494 - 2017-09-27 - Appeal Division Decision Content On this page Introduction Issue Analysis Conclusion Reasons and decision Introduction [1] The Applicant seeks leave to appeal the decision of the General Division dated November 9, 2015, which determined that the Applicant had not established that he had a severe and prolonged disability for the purposes of the Canada Pension Plan by the end of his minimum qualifying period on December 31, 2013, and that he therefore was not entitled to a disability pension. The Applicant filed an application requesting leave to appeal to the Appeal Division on February 12, 2016, invoking several grounds of appeal. He alleges that the General Division based its decision on several erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Issue [2] Does the appeal have a reasonable chance of success? Analysis [3] Subsection 58(1) of the Department of Employment and Social Development (DESDA) sets out the grounds of appeal as being limited to the following: (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or (c) 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. [4] Before granting leave, I need to be satisfied that the reasons for appeal fall within the enumerated grounds of appeal under subsection 58(1) of the DESDA and that the appeal has a reasonable chance of success. The Federal Court endorsed this approach in Tracey v. Canada (Attorney General), 2015 FC 1300. [5] Recently, the Federal Court of Appeal in Mette v. Canada (Attorney General), 2016 FCA 276 indicated that it is unnecessary for the Appeal Division to address all of the grounds of appeal raised by an applicant. In response to the Respondent’s arguments that the Appeal Division was required to deny leave on any ground it found to be without merit, Dawson J.A. stated that subsection 58(2) of the DESDA “does not require that individual grounds of appeal be dismissed … individual grounds may be so inter-related that it is impracticable to parse the grounds so that an arguable ground of appeal may suffice to justify granting leave”. [6] Although the General Division set out some of the Applicant’s personal characteristics at paragraph 8 of the Evidence section, it is not apparent that the General Division considered and undertook any analysis of the Applicant’s personal characteristics in a “real world context”, which it was required to do in assessing the severity of his disability: Villani v. Canada (Attorney General), 2001 FCA 248. On this basis alone, I am satisfied that the appeal has a reasonable chance of success on this ground, notwithstanding the fact that the Applicant did not raise this ground. [7] Nonetheless, I will address each of the grounds raised by the Applicant. a) Investigative reports [8] At paragraphs 38 and 41, the General Division wrote: [38] .... There are reports indicating the appellant suffers from degenerative changes in his lumbar spine, but the medical and investigative reports did not identify any severe pathology which would preclude all employment, including sedentary or light work. [41] The Tribunal determined ... the mild pathology shown on various investigative reports [among other things] ... constituted evidence of work capacity. [9] The Applicant argues that the General Division’s findings are unsupported by the evidence, to the extent that they conflict with the consultation report dated October 28, 2010 of his neurosurgeon (GD2-15). The neurologist wrote: He had a CT scan and a MRI done that I was able to review I explained to S. F. that his lumbar spine shows severe degenerative changes in the facettes. I think this is a sufficient explanation for his back pain. I explained to him that unfortunately the involvement is quite diffuse and extensive. If it was a single level or two where there was joint disease, one could entertain the option of the fusion, but unfortunately in this situation, the disease involves the entire spine and actually extends up to the thoracic spine and I am reluctant to recommend an extensive thoracolumbar fusion. [10] The Applicant relies on the neurosurgeon’s consultation report. The neurologist’s opinion however was taken somewhat out of context. The actual paragraph following the sentence “He had a CT scan and a MRI done that I was able to review” reads: The study showed degenerative facet disease. He has quite diffuse degenerative facet asset disease at almost all lumbar spinal levels. Furthermore he has some generalized disk [sic] bulging but I did not see any significant annular tears or disk [sic] herniations. He has bilateral mild foraminal stenosis slightly worse on the left at L4-5 an [sic] L5-S1. I know the radiologist commented that was moderate severity that I was not terribly impressed by that. In my opinion it was more in keeping with a mild category. (my emphasis) [11] Given the neurologist’s opinion that the Applicant’s condition was “more in keeping with a mild category”, there was an evidentiary basis upon which the General Division made its findings. Hence, I am not satisfied that the appeal has a reasonable chance of success on this basis. (b) Medical reports regarding work capacity and severe depression [12] At paragraphs 38, 41 and 45, the General Division wrote: [38] There are no medical reports in the file that indicated the appellant's medical condition precludes him from working… [41] The Tribunal determined the absence of any medical report addressing the Appellant's work capacity, or a report suggesting the Appellant was precluded from all types of employment .... constituted evidence of work capacity. [45] ... The Tribunal concluded the conservative treatment of the appellant for depression did not substantiate the Appellant suffered from severe depression prior to his MQP. [13] The Applicant submits that the General Division made an erroneous finding of fact, as he saw Dr. Akinlosotu, a psychiatrist, on February 5, 2013 and diagnosed him with major depressive disorder and chronic pain (GD2-51 to GD2-54). He also assessed the Applicant as having a global assessment functioning (GAF) score of 50. [14] Paragraph 45 of the General Division’s decision needs to be fully set out, to provide some context. The General Division wrote: The Appellant’s only treatment for depression has been an anti-depressant first taken several months after his MQP, one attendance with a psychiatrist, and six counselling sessions. The Tribunal concluded the conservative treatment of the Appellant for depression did not substantiate the Appellant suffered from severe depression prior to his MQP. [15] The General Division was aware that the Applicant had seen the psychiatrist, so it cannot be said that it had made its findings without regard for the material before it. While the Applicant had been diagnosed with a major depressive disorder, the General Division nonetheless found that he could not have suffered from a severe depression prior to his minimum qualifying period, given the nature of his limited treatment. There is no allegation that this finding was made in a perverse or capricious manner. [16] I note that the Applicant also relies upon a GAF score of 50, in part, as evidence of severity. However, the score only represents how an applicant presented when the assessment was undertaken. One would need to take a series of GAF scores over a period of time to get a more reliable indication of an applicant’s mental health status. [17] I am not satisfied that the appeal has a reasonable chance of success on this ground. (c) Compliance [18] The Applicant argues that the General Division erred when it found that he had not complied with any of the treatment recommendations made by different health caregivers, including a neurosurgeon and psychiatrist. The General Division described the treatment recommendations at paragraph 36 of its decision. The Applicant submits that the General Division failed to consider that he felt that the treatment would not be beneficial, and his depression prevented him from seeking treatment. The evidence in this regard is set out at paragraphs 13 and 19 of the decision. [19] The Applicant argues that the General Division failed to consider some of the evidence, but I do not find that it is necessary for a decision-maker to cite all of the constituent evidence before it. Indeed, there is a general presumption in law that a decision-maker considers all of the evidence before it, which in this case is the Applicant’s explanation as to why he did not pursue treatment recommendations. In this case, however, the General Division was clearly aware of this evidence, citing it at paragraph 48. The General Division member acknowledged that evidence and then concluded that he did not consider the Applicant’s reasons for not pursuing recommended treatment reasonable. I am not satisfied that the appeal has a reasonable chance of success on this ground. [20] The Applicant further argues that the General Division erred in finding that he had not looked for work or attended any retraining or undergone any educational upgrading after he stopped working in September 2010. The Applicant suggests that his depression is severe and debilitating and prevents him from looking for work or attending any retraining or educational upgrading. [21] There is no suggestion by the Applicant that he in fact had looked for work or attended any retraining or educational upgrading. He submits that the General Division should have considered that he was unable to look for work or pursue retraining or educational upgrading because of the severity of his depression. However, the General Division only required that he show effort at obtaining and maintaining employment or attend retraining or educational upgrading, after it had determined that there was some evidence of work capacity. The General Division cited Inclima v. Canada (Attorney General), 2003 FCA 117 in this regard. The General Division assessed the medical evidence and found that the Applicant exhibited the requisite capacity. While there is no doubt that the Applicant was depressed throughout 2012 and 2013, the General Division determined that the evidence before it was insufficient to substantiate the severity of the Applicant’s depression. The member noted that the Applicant’s treatment was limited, as it included one attendance with a psychiatrist and six counselling sessions, and the Applicant did not begin a course of anti-depressants until sever months after the end of the minimum qualifying period. [22] On this issue, essentially the Applicant is seeking a reassessment. As the Federal Court held in Tracey, it is not the role of the Appeal Division to reassess the evidence or reweigh the factors considered by the General Division when determining whether leave should be granted or denied. Neither the leave nor the appeal provides opportunities to re-litigate or re-prosecute the claim. I am not satisfied that the appeal has a reasonable chance of success on this particular ground. Conclusion [23] The application for leave to appeal is granted in respect of only the issue as to whether or not the General Division erred in failing to apply Villani and not considering the Applicant’s personal characteristics in a “real world” context. [24] This decision granting leave does not in any way prejudge the result of the appeal on the merits of the case.