TP v Minister of Employment and Social Development

TP v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2021-07-29 Neutral citation 2021 SST 399 Reference number AD-21-139 Member Kate Sellar Division Appeal Division Decision Appeal allowed Related decisions SST - TP v Minister of Employment and Social Development - 2020 SST 1247 - 2020-10-07 - General Division SST - TP v Minister of Employment and Social Development - 2022 SST 177 - 2022-02-28 - General Division Decision Content Citation: TP v Minister of Employment and Social Development, 2021 SST 399 Social Security Tribunal of Canada Appeal Division Decision Appellant: T. P. Respondent: Minister of Employment and Social Development Respondent Representative: Érélégna Bernard Decision under appeal: General Division decision dated October 7, 2020 GP-19-1806 Tribunal member: Kate Sellar Type of hearing: Decision date: July 29, 2021 File number: AD-21-139 On this page Decision Overview The parties agree on the outcome of the appeal Conclusion Decision [1] The appeal is allowed. The General Division made an error of fact. The matter will go back to the General Division for reconsideration. Overview [2] T. P. (Claimant) worked as a merchandiser for a pop company. He stopped working in September 2017 because of the following: back strain sciatica right shoulder tendonitis [3] He applied for a disability pension under the Canada Pension Plan (CPP) in April 2019. The Minister denied the application initially and on reconsideration. The Claimant appealed to this tribunal. [4] The General Division dismissed the Claimant’s appeal on October 7, 2020. The General Division decided that, while the Claimant had some limitations, there was evidence that he had at least some capacity to work. [5] When there is some evidence of capacity to work, a claimant needs to show that their reasonable efforts to get and keep a job were unsuccessful because of their health condition. I call this the “employment efforts test.” [6] The General Division decided the Claimant did not look for work, so he did not meet this employment efforts test. [7] I granted the Claimant permission to appeal the General Division decision. [8] I found that it was arguable that the General Division made an error of fact under the Department of Employment and Social Development Act (Act) by ignoring the Claimant’s testimony where he talked about being referred to an orthopaedic surgeon or other back specialist. The General Division highlighted this fact as significant, suggesting that it was part of the decision about whether the Claimant’s disability was severe within the meaning of the CPP. [9] I have to decide whether the General Division made an error under the Act. If I find an error, I have to decide what I will do to remedy (fix) that error. The parties agree on the outcome of the appeal [10] The Claimant and the Minister have asked me to make a decision based on the agreement they reached during a case conference on July 27, 2021. [11] The parties agreed the following three things: The General Division made an error of fact by ignoring the Claimant’s testimony where he said his doctor referred him to an orthopaedic surgeon or other back specialist. The Appeal Division should allow the Claimant’s appeal and return the matter to the General Division for reconsideration. The parties would benefit from a teleconference at the General Division level to do the two following things: Set timelines for the Claimant to provide the evidence he continues to gather from specialists (particularly any documents that become available because of follow-up appointments with the neurologist) Discuss whether the Minister will make arrangements to pay for the cost of additional medical information from the specialists involved in the Claimant’s care I accept the proposed outcome [12] I am satisfied that the General Division made the error described in the agreement. This is the same error I discussed as a possible error in the decision giving the Claimant permission to appeal. [13] The General Division based its decision on the error of fact about whether the Claimant had seen an orthopaedic or other back specialist. [14] I will return the matter to the General Division in accordance with the agreement. [15] The General Division will receive the new documents that the Appeal Division received from the Claimant with the application for leave to appeal. Those documents include information from the neurologist. [16] I agree with the parties that a teleconference at the General Division level with the agenda the parties have proposed would certainly help the parties keep the matter moving forward efficiently and effectively. I understand this kind of teleconference is a normal part of the General Division’s approach to cases when they return from the Appeal Division for reconsideration. Conclusion [17] I am allowing the appeal. [18] The General Division made an error of fact. I am returning the matter to the General Division for reconsideration.