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

T. M. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2017-03-08 Neutral citation 2017 SSTADIS 90 Reference number AD-16-410 Member Janet Lew Division Appeal Division Decision Application for leave to appeal refused Decision Content On this page Introduction Issue Grounds of appeal Conclusion Reasons and decision Introduction [1] The Applicant seeks leave to appeal the decision of the General Division dated December 21, 2015, which determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan, as it found that her disability was not “severe” on or before the end of her minimum qualifying period of December 31, 2011. Issue [2] Does the appeal have a reasonable chance of success? Grounds of appeal [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] The Applicant alleges that the General Division erred in law and also 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. WSIB assessment - adverse finding [6] At paragraph 52, the General Division wrote, “The Appellant produced no evidence or details pertaining to a WSIB assessment that is mentioned in Dr. Hutten- Czapski’s June 2011 report, and which apparently determined that the Appellant’s low back pain was a permanent impairment”. From this, the Applicant submits that the General Division erred in appearing to draw an adverse finding on the absence of the Workplace Safety and Insurance Board (WSIB) assessment in the hearing file, without requesting production of it. [7] However, the General Division did not use any language to suggest that it had drawn an adverse inference from the absence of the report. If anything, the member was unprepared to accept or reject any conclusions or findings from the WSIB assessment, as it was not before him. The member analyzed the severity of the Applicant’s disability on the basis of the medical opinions of the family physician and, in particular, the reports of June 2011, October 2012 and March 2014. I am not satisfied that the appeal has a reasonable chance of success on this particular ground. Massage therapy [8] The Applicant argues that the General Division erred in failing to ascertain whether she pursued massage therapy and, if not, whether she could reasonably explain why she did not pursue this. The Applicant asserts that the General Division based its decision on an erroneous finding of fact that it made without regard for the material before it, when the member stated at paragraph 54 that she had not offered any evidence that she attempted massage therapy or other interventions to address her neck injury, and further provided no basis for not attempting treatment, when in fact there was evidence at paragraph 19 of her affidavit sworn on October 7, 2013, that she had attempted massage therapy (GT2-3). [9] At paragraph 54, the General Division was concerned with addressing only the Applicant’s neck complaints. The member wrote: [54] While the [Applicant] maintains that medical professionals have not treated her neck injury, the evidence shows that Dr. Schneider did, in fact, recommend massage therapy and physiotherapy to treat this condition. The [Applicant] offered no evidence that indicated she has attempted these interventions to address her neck injury, and further provided no basis for not attempting treatment. [10] A review of the affidavit of the Applicant, however, indicates that paragraph 9 refers to her back pain, whereas her neck pain is addressed in paragraphs 26 to 29. The Applicant stated: [26] I also have pain in my neck since my accident in 2010. However, my health practitioners haven’t treated me for this. [11] In other words, there was an evidentiary basis for the General Division’s finding that the Applicant had not pursued any massage therapy for her neck. [12] The Applicant suggests that the General Division should have asked her whether she had pursued massage therapy, but it was unnecessary with respect to her neck, because of the Applicant’s affidavit evidence. [13] Given that the General Division was very specific in paragraph 54 that its analysis related only to the Applicant’s neck, and that the evidence that the Applicant now relies on relates to her back, I am not satisfied that there is an arguable case that the General Division erred in finding that she had not pursued any treatment for her neck. After all, the Applicant had sworn an affidavit stating that she had not received any treatment for her neck. I am not satisfied that the appeal has a reasonable chance of success on this particular ground. Applicant’s evidence [14] The Applicant contends that the General Division failed to provide sufficient reasons for discounting or ignoring her affidavit and vica voce evidence. [15] The General Division referred to the Applicant’s affidavit and oral testimony throughout its evidence section, and referred to her oral testimony twice and her affidavit evidence in its analysis. The member indicated that the Applicant’s account of her physical limitations and daily activity restrictions are largely consistent with those detailed in her application questionnaire. It is clear that the General Division considered both the Applicant’s affidavit and viva voce evidence. In any event, it is well established in the jurisprudence that a decision-maker is not required to refer to all of the evidence before it, as it is presumed to have been considered: Simpson, supra. This presumption can be rebutted if an applicant can establish that the evidence was of such probative value that the decision-maker ought to have considered it. Given that the member clearly was aware of the evidence, having cited portions of it and having referred to portions of it in the analysis and discussion, I can only presume that he considered all of it. [16] If the Applicant is suggesting that the General Division ought to have assigned greater weight to her affidavit evidence or oral testimony, the issue of the weight to be ascribed to evidence does not fall within any of the enumerated grounds of appeal under subsection 58(1) of the DESDA. The Federal Court of Appeal has declined to interfere with a decision-maker’s assignment of weight to the evidence, holding that such an exercise is a matter for “the province of the trier of fact”: Simpson v. Canada (Attorney General), 2012 FCA 82. Similarly, I would defer to the General Division’s assessment of the evidence. As the trier of fact, it is in the best position to assess the evidence before it and to determine the appropriate amount of weight to assign. The Appeal Division does not hear appeals on a de novo basis and is not in a position to assess the matter of weight. I cannot conclude that the General Division should have placed more weight or given greater consideration to the Applicant’s affidavit evidence or her oral testimony. Villani [17] Finally, the Applicant argues that the General Division failed to properly apply the principles set out in Villani v. Canada (Attorney General), 2001 FCA 248. The Applicant notes that the member referred to her education and work history, but claims that he: failed to consider [her] testimony as to her physical limitations in sitting, standing, etc. and how this limits her ability to seek further education and work, at her “fairly advanced [age] as far as employment is concerned”, that is her ability to pursue an education which would require her to sit for periods of time. The Tribunal again made a finding based on evidence that was not before it. [18] At paragraph 49, the General Division noted the Applicant’s claims that she has functional limitations with bending, lifting, squatting, climbing, standing, sitting, sleeping, and concentration and that they render her unable to work and retrain, amongst other things. Then, at paragraph 52, the General Division noted that the family physician had not suggested that there were any restrictions with sitting, or that she was unable to perform all work as a result of her back and neck conditions. At paragraph 56, the General Division then again referred to the Applicant’s evidence that she is unable to concentrate, stand or sit for any length of time due to pain caused by her medical conditions. Given this, it cannot be said that the General Division had failed to consider her testimony and the evidence regarding her physical limitations, particularly with sitting. Apart from the Applicant’s own evidence, she has not referred me to any documentary evidence that support her claims. Although it was in the context of mitigation issues, as the Federal Court recently suggested in Cvetkovski v. Canada (Attorney General), 2017 FC 193, there should be some documentary basis to support an applicant’s claims. [19] I am mindful that the Federal Court of Appeal in Villani cautioned against interfering with an assessment of an applicant’s circumstances, where a decision-maker applied the correct legal test for severity, as he or she will be in a position to judge on the facts whether, in practical terms, an applicant is incapable regularly of pursuing any substantially gainful occupation. [20] Given these considerations, I am not satisfied that the appeal has a reasonable chance of success. Conclusion [21] The application for leave to appeal is refused.