Date: 19980306
Docket: T-2588-97
BETWEEN:
MERVYN K. MARTIN,
Applicant,
- and -
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of an order of the Vice-Chairman of the Pension Appeals Board denying the Applicant leave to appeal to the Board.
[2] The Applicant has worked all his life as a physical labourer. He has a grade 8 education. In September 1994, he applied for disability benefits. He was forced to stop working in June 1993 after experiencing severe back pain. His doctors advised him to avoid bending, lifting or twisting, and to walk 2 or 3 miles a day to help alleviate the pain. The Applicant contends that his pain is constant and, in order to obtain relief, he must lie down on two to three occasions a day for approximately one half-hour at a time. The pain also interferes with his sleep.
[3] The Minister refused to pay the Applicant benefits. An appeal of the Minister"s decision was filed with the Review Tribunal, which eventually dismissed it. The Tribunal held that the Applicant was not entitled to disability benefits because there was no objective medical evidence that he was incapable of doing any type of work. In fact, most of the medical reports indicated that he was capable of doing some kind of work.
[4] The Applicant appealed the decision to the Pension Appeals Board. However, leave was denied by the Vice-Chairman who felt that the Board could not come to any different conclusion from that reached by the Review Tribunal. Specifically, he stated:
| The medical evidence does not support the contention that the applicant is incapable regularly of pursuing any gainful occupation. It shows he is limited as to what work he can do, but supports the Minister"s contention that less physically demanding work would be within his capacity. As to the applicant"s educational qualifications, any limitations flowing from that consideration are not based on disability.1 |
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[5] The Applicant now seeks to judicially review the Vice-Chairman"s decision to deny leave to appeal.
[6] The Chairman or the Vice-Chairman of the Pension Appeals Board are provided with the statutory authority2 to grant or refuse leave to appeal.
[7] The proper test in considering whether the Court can overrule a decision in such cases is the legality of the decision and not the correctness.3 In other words, unless the Vice-Chairman considered irrelevant factors or acted contrary to the law, the Court should show deference towards its decision.4
[8] In order to be eligible for a disability pension, a person must establish that his disability is both "severe" and "prolonged". These two requirements are defined in subsection 42(2) of the Canada Pension Plan5 which reads:
| 42(2) For the purposes of this Act,
(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,
| (i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and |
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| (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and |
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(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
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42(2) Pour l'application de la présente loi_:
a) une personne n'est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa_:
| (i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, |
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| (ii) une invalidité n'est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès; |
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b) une personne est réputée être devenue ou avoir cessé d'être invalide à la date qui est déterminée, de la manière prescrite, être celle où elle est devenue ou a cessé d'être, selon le cas, invalide, mais en aucun cas une personne n'est réputée être devenue invalide à une date antérieure de plus de quinze mois à la date de la présentation d'une demande à l'égard de laquelle la détermination a été établie.
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[9] I do not agree with the Applicant that the Review Tribunal applied the wrong test in determining whether he was deemed disabled. While the Review Tribunal did not mention the specific words "substantially gainful occupation", it does not necessarily mean that it did not apply the correct test. In my opinion, when it stated that there was no objective medical evidence that the Applicant was incapable of doing "any type of work", it was referring to sedentary work as opposed to manual labour. The Applicant"s medical condition does not restrict him from pursuing sedentary work.
[10] The fact that the Vice-Chairman refused to grant leave because the medical evidence supported the conclusion that less demanding work would be within the Applicant"s capacity was not unreasonable. I find that there was sufficient material to support his conclusion.
[11] For these reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
March 6, 1998
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1 Applicant"s Application Record at 47.
2 Pursuant to s.83(1) and s.83(2) of the Canada Pension Plan , R.S.C. 1985, c. C-8.
3 Ernewein v. Minister of Employment and Immigration, "1980 > 1 S.C.R. 639.
4 MacDonald v. City of Montreal, "1986 > 1 S.C.R. 460 at 507 (Wilson J.dissenting but not on this question).
5 Supra note 2.
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