Date: 20110519
Docket: T-1565-07
Citation: 2011 FC 591
Ottawa, Ontario, May 19,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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MILENKO PANTIC
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review pursuant to section 18(1) of the Federal
Courts Act (R.S., 1985, c. F-7) of a decision of the Canada Pension Appeals
Board (PAB) denying him leave to appeal an adverse decision of the Review
Tribunal.
[2]
The
PAB denied leave to appeal the decision made by the Review Tribunal, which dismissed
the applicant’s claim for disability benefits under the Canada Pension Plan
(R.S., 1985, c. C-8) (CPP). The applicant’s application for leave was denied
by the PAB because he did not demonstrate, in the opinion of the PAB member,
that he had an arguable case upon which the appeal might succeed. The Federal
Court of Appeal has held that an arguable case in the context of an application
for leave to appeal requires that some reasonable chance of success, at law, be
established: Fancy v Canada (Minister of Social Development) 2010 FCA 63.
[3]
It
is the leave to appeal decision which is under review here, not the Review
Tribunal’s decision. However, only by considering the latter can the
reasonableness of the former be ascertained. This necessitates a closer review
of the record before the Review Tribunal. However, the entire matter turned on
the determination by the Review Tribunal that the applicant did not and does
not suffer injuries which are severe and prolonged, a necessary showing under subsection
42(2) of the CPP in order for a disability pension claimant’s claim to
be approved.
[4]
The
applicant originates from Bosnia-Herzegovina. He came to Canada in 1996. He had a
college education upon his arrival in Canada. He studied and learned English for a year,
and then went to work for Canada Post doing quality control work and was later
employed there as print room operator. The applicant was working full-time in
this capacity when he apparently suffered a back injury in October 2002 at the
age of 46.
[5]
On
February 24, 2005 the applicant applied to Human Resources and
Skills Development Canada
(HRSDC) for disability benefits under the CPP. That application was denied for
failing to meet the criteria set out in subsection 42(2) of the CPP. The CPP
sets out the following in subsection 42(2):
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When
person deemed disabled
(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
(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;
…
[Emphasis added]
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Personne déclarée invalide
(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,
(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;…
[Notre soulignement]
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[6]
While
HRSDC determined that the applicant had met the contributory requirements of
the CPP, it determined that he had not met the criteria in subsection 42(2)(a)(i)
and (ii), namely, that his claimed disability was not severe and prolonged.
[7]
The
applicant requested a reconsideration of this initial decision denying him
benefits. On January 23, 2006, that request for reconsideration also resulted
in a denial of disability benefits by another adjudicator:
The
information on file shows that the specialists can not find the reason for your
pain. As such, there is no objective medical reason to support your incapacity
for work. There is also no evidence of your attending a pain management program
which may assist in your pain control.
The
information in your file indicates that when you applied for the disability
benefit, you were able to do some type of work on a regular basis suitable to
your condition and limitations. Therefore your medical condition cannot be
considered ‘severe’ according to the Canada Pension Plan legislation and you
are not eligible for disability benefits.
You
can appeal this decision to a Review Tribunal.
[8]
The
applicant did indeed appeal this second decision to a Review Tribunal. On
March 7, 2007 the Review Tribunal dismissed this appeal, finding, among other
things, that:
The
Tribunal has reviewed the documentary evidence submitted and notes that it
fails to reveal objective findings that would support the Appellant’s claim of
a severe and prolonged disability in or before December, 2004. For example, in the report of Dr.
MacGregor (page 33, HCF) dated April 2003 she noted that the Appellant was
working for four hours a day and doing physio for four hours a day which
clearly indicates he is not disabled. Dr. MacGregor also notes that despite
the Appellant’s self-limiting behaviour, he should be able to continue to work
at a light level. Also, in a report of Dr. Day dated May 2003 (page 35,
HCF) he notes that the Appellant’s concerns appear to be from fear rather
than a mechanical injury. In the CT Scan dated October 2003 (page 47, HCF)
a slight impingement of the L4 nerve root was noted on the left side, however,
no surgery was recommended at that time (page 52, HCF). In the report of Dr.
Rhodes dated October 2004, some two months prior to the date of the MQP, he
notes “Very mild degenerative change in the mid and lower thoracic spine”. And
in the EMG report of Dr. Pringle dated December 2004 he notes there is evidence
of left-sided LA radiculopathy with some degree of denervation.
The
Tribunal notes that many of the foregoing medical reports which are dated
prior to December 2004 do not indicate the Appellant has a severe back problem
that would preclude a return to work. Rather, the reports cited indicate
that the Appellant’s objective findings do not correlate with his subjective
complaints nor do these reports describe functional limitations which would
preclude the Appellant from working prior to December 2004. While there is
evidence of radiculopathy, there is no other evidence that this condition was
so severe to have prevented the pursuit of employment.
Further,
with respect to the Appellant’s testimony at the hearing, it was clear to the
Tribunal that the Appellant was a relatively young man with a high level of
education, skill, and intelligence. The Appellant’s testimony, despite having a
translator at the Hearing, also indicated, that he had a good grasp of English.
For examples of the foregoing, the Appellant was able to find work that
required a strong degree of English competency a mere year after to moving to Canada. Also, the Appellant was trained for his last job, a
somewhat skilled position, in English. The Appellant’s skills, education and
training would suggest these were and are not now barriers to his finding work
in the real world. Yet despite the Appellant’s obvious talents, he does not
appear to have made serious attempts to retrain or re-enter the workforce in
any capacity. The Tribunal can sympathize with the Appellant when he states
he is unable to work today; nevertheless, the Tribunal cannot rule on compassionate
grounds and the appeal is therefore dismissed. [Emphasis added]
[9]
The
applicant then sought leave to appeal the decision of the Review Tribunal to
the PAB. He offered four supporting grounds of appeal. No new medical
evidence was provided in support of the four proposed grounds of appeal.
[10]
On
July 24, 2007 the Honourable K.C. Binks, Chair of the PAB dismissed the leave
to appeal application:
The
Appellant seeks leave to appeal the Tribunal’s decision dated April 17, 2007.
The
evidence before the Tribunal clearly showed that the applicant did not have an
arguable case which is necessary to obtain leave.
Accordingly,
the application is dismissed.
[11]
The
review by this Court of the PAB decision refusing the applicant’s application
for leave to appeal involves two issues:
i.
whether the PAB has applied the right test—that is, whether
the application raises an arguable case without otherwise assessing the merits
of the application, and
ii.
whether the PAB has erred in law or in appreciation of the
facts in determining whether an arguable case is raised. If new evidence is
adduced with the application or if the application raises an issue of law or of
relevant significant facts not appropriately considered by the Review Tribunal
in its decision, an arguable issue is raised for consideration and it warrants
the grant of leave.
Callihoo v Canada (Attorney General) 2000 FCJ No 612 at para 15.
Whether the PAB Applied
the Right Test
[12]
The
first question is subject to a correctness standard of review; the second to a
reasonableness standard of review: Mebrahtu v Canada (Attorney
General)
2010 FC 920. The Court of Appeal has added precision to this test, holding that
an arguable case in the context of leave to appeal requires that the identification
of a ground of appeal with some reasonable chance of success be established: Fancy,
above.
[13]
No
issue is taken with respect to whether the PAB member applied the right test.
While the PAB decision is brief, the PAB member adopted the correct test. I
note that the adequacy of the reasons was not raised as a ground by the applicant.
Whether an Arguable Case
was Disclosed
[14]
I
now turn to the question of whether the decision that no arguable ground of
appeal with some reasonable chance of success had been established was
reasonable. In
Williams v Canada (Attorney General), 2010 FC 701 at paras
13-15 Justice Blanchard outlined the correct approach:
The
issue is whether the conclusion of the designated member of the Board that the
applicant did not raise an arguable case, is reasonable. According to Callihoo,
at paragraph 22:
In
the absence of significant new or additional evidence not considered by the
Review Tribunal, an application for leave may raise an arguable case where the
leave decision maker finds the application raises a question of an error of
law, measured by a standard of correctness, or an error of significant fact
that is unreasonable or perverse in light of the evidence...
The
Review Tribunal found that the applicant was not disabled within the meaning of
subsection 42(2) of the CPP as his disability was neither severe nor prolonged.
The Review Tribunal correctly stated the law. It explained the concept of
disability under the CPP, and properly defined “severe” and “prolonged”.
[15]
As I have already
stated, the Federal Court of Appeal has held that an arguable case in the
context of an application for leave to appeal requires that some reasonable
chance of success, at law, be established. The applicant did not demonstrate
to the PAB that his application for leave had a reasonable chance of success. In
turn, the applicant has not, now before this Court, established that the
decision by the PAB denying him leave to appeal was unreasonable. Furthermore,
the applicant has not demonstrated any errors of fact or law in the Review Tribunal’s
decision that are unreasonable or perverse in light of the evidence or which
might give rise to an arguable case with some reasonable chance of success.
[16]
The statutory and
jurisprudential framework having been set, the applicant’s proposed grounds of
appeal and an assessment as to whether the PAB’s finding that they do not
disclose an arguable case is reasonable:
i.
The Tribunal erred in
stating there was lack of medical evidence on file to support a disability as
of December 2004, when there were medical opinions expressed that the appellant
was disabled from employment including those of Dr. Lee, Dr. Chan, Dr. Halle
and Dr. Forget.
ii.
The Tribunal erred in
requiring objective findings to support a claim of disability.
iii.
The Tribunal erred in
failing to consider objective evidence of pathology related to the appellants
[sic] symptomology and associated disability.
iv.
The Tribunal erred in
relying upon the opinion of Dr. MacGregor, which was provided on the basis that
the appellant’s condition was a muscular injury without neurological
involvement or spinal condition and was thus given on the basis of a
misdiagnosis.
[17]
I
do not, for the purposes of this judgment, intend to review all of the medical
evidence, save to say that the applicant could not point to any significant
factual error that was unreasonable or perverse in light of the evidence. Additionally,
the record does
not support the assertion that the weight of the evidence pointed in favour of finding
that the applicant suffered from a severe and prolonged disability. Indeed, the
preponderance of relevant evidence was to the contrary:
a.
Dr. Lynne MacGregor, M.D., F.R.C.P.C.,
Physical Medicine & Rehabilitation, wrote to the Workplace Safety and
Insurance Board (WSIB) on March 11, 2003 explaining that:
Mr.
Pantic was seen today for follow up of his low back pain relating to a work injury
from October 2002…It was my impression he had mechanical low back pain of soft
tissue and ligamentous etiology with no neurological or articular findings
specifically other than reduced spine range with self limiting behaviours and
he was quite pain focused and deconditioned. I referred him to the Back
Institute in Gatineau for pain management and exercise. He did
call in his medications after his last visit and was Oxy Contin and Flexeril.
He
has been in Gatineau CRD for three weeks now and has continued to do a work
program at the same time with his employer on modified hours and duties. He is
working four hours per day while he is going to physiotherapy. His daughter
stated that he is on modified duties but was not certain what the functional
abilities were at this point in time and I did not receive a copy of his
current functional abilities. I did receive the original report, or
assessment, from CRD but no updated forms were brought in today. His daughter
reports he is getting a little better. He is doing his exercises but is still
quite focused on his pain.
I
would like to see him in about three to four weeks with a progress note and
have asked him to have one faxed to me about his current functional abilities. I
stated to both of them that it is usual that the physical demands of his work
are known to the physiotherapist or can be obtained from the employer and that
is usually taken into consideration when looking at light or modified duties.
I will see him for follow up but I do agree with the current plan. [Emphasis
added]
b.
In another letter to
the WSIB, dated April 10, 2003, Dr. MacGregor further wrote:
The
purpose of the evaluation today was to see how she [sic] was doing with his
physiotherapy program at the Canadian Back Institute where he had been going in
Hull from February through until April 2001. He
reports he has been discharged and, overall, the CRD discharge report indicates
he was functioning within the light level and that, from an objective point
of view, he had improved. From a subjective point of view, Mr Pantic
reported a slight decrease in the pain but was having difficulty with tasks at
work. His functional abilities were summarized and he was able to carry 20
pounds a distance of 30 feet and lift up to 20 pounds repetitively from waist
to shoulders and from floor to waist 5 pounds repetitively. Overall, they
stated he demonstrated the ability to work at a light level as defined by the
physical demands and characteristics of work found in the Dictionary of
Occupation Titles. It was noted he was able to lift 20 pounds
occasionally, 10 pounds frequently. During the functional evaluations he did
not demonstrate the signs of maximal effort normally observed on exertion. He
demonstrated self limiting behaviour due to an exacerbation of his symptoms
when accomplishing tasks. Therefore they stated he might be able to lift
heavier loads than demonstrated. The work hardening was terminated April 2 as
discussed with WSIB.
There
was a brief summary noted of job descriptions, regular duties, which outlined
his job as a printer/operator. They noted the average weight carrying before
was between 100gm to 14K but it was noted that he could use a dolly depending
on the quantity of the files he had to carry and there was assistance with
everyone’s help to put away stock orders. This report, which is just a page
without any other comments on it, states his modified duties are sitting
alternating with walking whenever he felt like it, watching printers, replacing
ribbons, carrying small packages to the dolly and setting up printers with the
average weight being between 100 and 400 gm. It was noted he does not do
any of the heavier box lifting. I reviewed this in front of Mr Pantic who did
not seem to concur with the job description. I explained that, if he disputed
the physical demands of the job that he would need to get a proper signed
physical demands [sic] from his employer and that he would have to look at the
specific details. However, from the Dictionary of Occupations and the form
that was presented and presented to the physiotherapist, it seems they felt
he was able to meet light level work. He is currently working four hours and
is going to physiotherapy four hours per day for an effectively full work day.
He was working harder in physiotherapy, according to the physiotherapy report,
than at work. I explained to Mr. Pantic and his wife today that it would be
reasonable for him to increase his hours to full time duties and that it is
felt he is able to work within the light level. I explained to him again
the concept of hurt versus harm and that he has a musculoligamentous low back
problem that might not completely resolve. He and his wife had difficulty with
this concept it seemed. I redirected them to you to review the dispute about
the physical demands of his work. However, I think that if it is anywhere near
the light level with alternating changes of position, he should be able to
manage that. I explained to him that I did not need to see him for follow up
as I did not really feel I had any further role at this point and re-referred
him back to his family physician and yourself. [Emphasis added]
c.
On May 22, 2003,
another physical and rehabilitation specialist, Dr. Edward Day, provided a letter
to one Dr. Vincent Chan, Mr. Pantic’s Ottawa family physician, in which Dr. Day
stated:
It
would appear to me that this man’s problem is mechanical. It would seem to be
that from the history and from the findings. He had facet blockage at C7 and
Ti, bilaterally, L5 bilaterally, and the left sacroiliac joint was blocked.
He
seemed to be suffering from so much pain, that I had doubts that I could
release the joints. In fact, it was easy. I had no difficulty whatever, to the
point where I questioned the correlation between the amount of pain and the
ease with which the joints were released. He claimed no benefit from releasing
the joints.
I
will see him again, but I hesitate to think I can help your patient. It
seems to me that his concerns are more from fear or some other problem rather
than a simple mechanical injury. [Emphasis added]
d.
Then on June 12,
2003, Dr. R.J. McKendry, M.D. F.R.C.P.C, Rheumatic Disease Unit at the Ottawa Hospital also wrote to Dr. Chan, explaining that:
Physical
examination revealed a pleasant, apprehensive looking man who moved slowly in
the exam room. His daughter was there for support and to act as an
interpreter. On MSK exam there was some restricted movement of his cervical
spine in all planes with discomfort in each direction. It was difficult to
examine him thoroughly because movement of any kind seemed to make him
uncomfortable. As far as I could ascertain straight leg raising was normal
and his reflexes were equal all be it somewhat hypoactive. He did not have
many of the usual fibromyalgia tender points.
The
diagnosis of posttraumatic musculoskeletal pain syndrome best fits the clinical
features. As is typical of this condition a relatively minor injury is
followed by much more widespread and increasing persistent pain. These
patients often end up on narcotic medications and Mr. Pantic is now on a
Duragesic patch of 30 mg every two or three days. He tells, me that this does
not produce any relief. I gather he has been extensively investigated by others
although I do not have the details. If he has not yet had a technetium bone
and joint scan this might be worthwhile partly to demonstrate that he does not
have a widespread inflammatory process. His laboratory tests, which you
sent, done in March of this year are all quite normal or negative including
sedimentation of 5 and a negative ANA and a negative rheumatoid factor. Mr.
Pantic’s pain is becoming more pervasive and is now a defining characteristic
of his life. Unfortunately, I don’t know of any way to affectively improve
the situation. I wonder if using antidepressants would be helpful or even an
evaluation by a psychiatrist perhaps with involvement of the family to see if
there are stresses or other circumstances, which might have a bearing on his
condition. [Emphasis added]
e.
On July 8, 2003 Dr.
Robert Forget, M.D., B.A., C.S. (PQ), F.R.C.S.(C), also wrote to Dr. Chan, and
explained that:
On
examination, we can see a gentleman in obvious distress who has difficulty
walking, sitting righting himself. He keeps his neck flexed anteriorly. He
has quite a resistance to passive manipulation of his neck in hyperextension,
flexion, right and left external rotation. Regarding his low back, he has pain
at the L5-S1 infraspinous area. He has no neurological or vascular deficits
of his lower extremities. He has no positive straight leg-raising.
X-rays
of his lumbar spine were within normal limits. X-rays of his neck show
severe degenerative disc disease at C5-C6.
Would
you please refer this patient for a neurosurgical assessment of his cervical
spine. [Emphasis added]
f.
Then on July 11, 2003
Dr. Reda El-Sawy, M.B., B.Ch., F.R.C.P.(C), another physician, a physiatrist,
who saw the applicant, wrote to Dr. Chan:
All
symptoms [of his back pain described to me] were non-specific, there was no
particular distribution and he was unaware of any aggravating or ameliorating
factors.
…
Examination
revealed a physically healthy looking muscular man who was in no acute
distress. He sat down during the whole period of history taking. As soon as
the “examination started” he presented with extremely dramatic functional
problems. He was unable to walk. Actually he walked as though he was
walking on a rope and he may fall down any time but he never did. When asked to
walk on his tip toes or heels or squat, he would not do any of the above but
would try “very hard” for a long period of time during which time he would be
trembling and shaking all over but again never fell down.
Examination
of the spine revealed no guarding spasm or tenderness. He would not move any
part of the spine in any direction to any degree. However, during examining
other areas and obviously when he was sitting down in the interview, he had normal
associated movements of the cervical spine. Even the upper limb joints, he
would not move any of them.
Neurological
examination revealed no wasting or fasciculation. There was no change in the
deep tendon reflexes and both plantar reflexes were down going. I was unable to
assess the strength properly. There was no sensory deficit. Abdominal
auscultation, peripheral pulses were normal.
Examination
of the peripheral joints was very difficult but I could not detect any synovial
swelling, bony hypertrophy, or any evidence of acute inflammation. The upper
limb joints were normal.
The
history and physical examination do not suggest any organic problem. One is reassured by the negative
x-rays and CT scans as you mentioned in your letter. The signs however,
are not typically that of conversion neurosis as it is even worse. Therefore
the origin of these signs, cannot be determined in today’s examination. I
suppose that these will need an extensive specialized psychological testing and
interviewing. I spoke with Mr. Pantic at length. I told him that he should
see a psychiatrist. As you know, he already feels depressed and has
significant sleep disturbance and energy loss, consistent with
anxiety/depression.
I
have no further recommendation. I would only suggest that the longer he stays
off work, the more difficult it will be to return him back to any kind of
gainful employment and this is of course terrible because of his very young
age. [Emphasis added]
g.
A July 30, 2003,
Neurophysiology Electromyogram exam conducted at the Ottawa Hospital concluded:
These
electrophysiologic tests are normal
apart from the absent H-reflex in the right soleus muscle which is simply the
electrophysiologic correlate of an absent snide jerk on the right. There is no
active denervation seen in the right S1 myotome however. [Emphasis added]
h.
In an October 20,
2003 letter, Dr. Forget wrote once again to Dr. Chan, and suggested that a “CAT
scan of his lumbar spine has shown a slight impingement of the L4 nerve
root on the left side.” [Emphasis added]
i.
Dr. Peter Jarzem,
B.Sc., M.D. F.R.C.S, an Orthopaedist determined that the applicant was “not a
surgical candidate.”
j.
Dr. I. N. Rhodes, provided, in a letter to Dr. Chan, the following diagnosis
in respect of Diagnostic imaging conducted at CML Health Care on the applicant:
There
is no fracture demonstrated. There are some slight lateral ozteophytes
involving the lower thoracic spine. The intervertebral disc space heights
are normal. The posterior elements and para-vertebral soft tissues are
normal. Very mild degenerative changes in the mid and lower
thoracic spine. [Emphasis added]
[18]
In a
May 2005 letter from Dr. Ian J. Harrington, M.D., F.R.C.S.(C), M.S., M.Sc.,
Associate Professor, University of Toronto to Dr. Weatherhead, the applicant’s new family
physician in Toronto, Dr. Harrington summarized much of the above history but
wrote in reference to his own examination of the applicant:
On
clinical examination, Mr Pantic is noted to be a tall, fit looking gentleman. He
walked with a cane in his left hand, complaining bitterly of low back and left
buttock discomfort. He complained also of neck and upper back pain. With
encouragement, it was possible to demonstrate that he was able to walk on his
tip toes and heels. He showed a fairly good range of movement of his cervical
spine but complained of pain in all planes of motion. There was an
exaggerated pain response to palpation of his cervical spine, posteriorly. There
was no evidence of paracervical muscle spasm. Movement of Mr. Pantic’s
lumbo-sacral spine was restricted. He flexed so that his finger tips came to 3
or 4 inches above kneecap level. Further attempts at flexion caused increasing
back pain. Lateral bending, rotation and extension movements were restricted
as well causing pain referred to the lumbosacral area. Rotating his pelvis
from side to side without moving his back also caused lumbar pain. Neurological
examination revealed that reflexes in Mr. Pantic’s upper and lower extremities
tended to be hyporeflexic but equal bilaterally. He showed an unusual pattern
of hypoaesthesia affecting his right leg, right arm and parts of the right side
of his trunk and thorax, not distributed in derrnatomal fashion - basically
glove and stocking. Any attempt at straight leg raising on either side when
examined supine was resisted vigorously, in the sitting position, however, it
was possible to carry out straight leg raising to 90 degrees bilaterally
without any complaints of back or leg pain. Plantar responses were down going.
There was no ankle clonus - no evidence of an upper motor neuron lesion. Examination
of both shoulders, elbows, hands, wrists, hips, knees, feet and ankles was
considered normal although Mr. Pantic complained of discomfort in
both shoulders with full abduction/external rotation. Axial compression of Mr.
Pantic’s head caused upper thoracic and lower back discomfort. [Emphasis
added]
[19]
Finally,
in a December 12, 2005 letter sent to Mr. D. Rideout, the Medical Adjudicator
who denied the applicant’s request for reconsideration regarding disability
benefits (i.e. the second decision), Dr. William J. Kraemer, M.D. F.R.C., of
the Toronto East General and Orthopaedic Hospital and lecturer at the
University of Toronto, wrote:
The
information in this report is based on one office visit on October 25th, 2005,
referred by Dr. Harrington.
…
On
physical examination, he [Mr. Pantic] had a somewhat unusual demeanor in
reaction to examination, with flailing of his arms and unsteadiness when he was
standing. Inspection of his lumbar spine was normal. On palpation, he
indicated pain in the middle of the lower lumbar spine, as well as in the
paraspinal muscles, and pain in the upper thoracic spine, as well as the
mid-thoracic spine. He could only flex a few degrees and he flailed his arms
when he did this and indicated severe pain. Extension was just past neutral
and lateral bending was similarly limited. He had difficulty walking on his
heels and on his toes because of pain. Manual motor testing revealed painful
giving way but I did not detect any motor weakness. Sensory testing was
normal. His reflexes were intact and symmetric. Straight-leg- raising test
reproduced back pain severely but did not reproduce radicular pain. He had
normal pulses in his feet. Rotation of his hips revealed full range of motion;
however he complained of severe pain in his back during rotation of the hips.
The
MRI scan did not reveal any evidence of nerve root compression or thecal sac
compression at any level.
There was an incidental finding of a benign hemangioma (benign vascular tumor)
in the L1 vertebral body, which extended into the left-sided pedicle. There
was no bony expansion or soft tissue extension into the spinal canal, and again
no evidence of any nerve root impingement at this level.
In
summary, this patient complains of very high pain levels in multiple areas of
his spine; however the MRI scan did not reveal any explanation for this pain.
The prognosis for improvement is poor, given the chronicity of the symptoms,
the unusual pain behavior and the essentially normal MRI scan.
This
patient would not benefit from surgical intervention. With regard to his
capacity to work, I did not find any significant spinal condition on the MRI
films. Therefore I do not know the source of his pain. Essentially, any
incapacity for work would be based on his own pain limitations, rather than on
restrictions imposed by a physician. [Emphasis added]
[20]
Such
was the evidence before the Review Tribunal and the PAB when they made their
respective decisions. As the medical history indicates, none of the
evidence before the Review Tribunal approaches the threshold constituting an
arguable case. While there are some references to limitations on the
applicant’s ability to work, to nerve impingement in his spine and of pain
arising from certain tests, the findings of the PAB that the proposed appeal
had no reasonable chance of success is reasonable. The applicant cannot point
to evidence which supports the argument that his injury is severe and
prolonged, as it must be under 42(2) of the CPP. Absent the requisite
evidentiary foundation, the presentation of new evidence adduced with the
application, or the application raising an issue of law or of relevant
significant fact not appropriately considered by the Review Tribunal in its
decision, this ground of appeal had no reasonable prospect of success.
[21]
The
second ground of the proposed appeal can be dealt with quickly. It is not an
error of law to require objective evidence of the disability. As the Court of
Appeal noted in Warren v Canada (Attorney General) 2008 FCA 377
at para 4:
In the case at bar, the Board made no
error in law in requiring objective medical evidence of the applicant’s
disability. It is well established that an applicant must provide some
objective medical evidence (see section 68 of the Canada Pension Plan
Regulations, C.R.C., c. 385, and Inclima v. Canada (Attorney General), [2003]
F.C.J. No. 378, 2003 FCA
117; Klabouch v. Minister of Social Development,
[2008]
F.C.J. No. 106, 2008 FCA
33 …
[22]
The
third ground of appeal could not be assessed by the Court as it could not be
explained or elucidated with sufficient clarity as to be considered, nor was it
advanced in argument before the Court. As such, it cannot be said to have any
reasonable chance of success.
[23]
The
final ground of appeal arises from reliance by the Review Tribunal on the
report of Dr. MacGregor, noted above. It was contended that the Review
Tribunal erred in relying on Dr. MacGregor’s reports because Dr. MacGregor’s
opinion was a misdiagnosis. The applicant framed the argument as follows:
…the
argument presented by the Ministry (formally [sic] the HRSD) relies on the
opinion of by [sic] Dr. Lynne McGregor [sic], Physiatrist. Dr. McGregror [sic]
determined that my condition was a muscular injury without neurological involvement
or spinal condition. Her opinion was thus given on the basis of a
misdiagnosis (the CT scan and nerve test are proof of this). She sent me to a
pain management clinic (CRD) where they explained to me that my nerve was stuck
in between vertebrae. They told me to do exercises which they said would free
the nerve. This doesn’t make sense. It’s very unclear why she
persistently stated that the injury was purely muscular but she sent me to get
nerve treatment. [Emphasis added]
[24]
It
is not the role of this Court on judicial review of a PAB decision refusing
leave to appeal the Review Tribunal’s decision to accept as a premise for the
proposed appeal that a medical opinion was in error. While it is true that the
CT scan did indicate “very mild degenerative changes in the mid and lower
thoracic spine” there is no evidence on the record supporting the argument of a
prolonged and severe disability on the part of the applicant. Indeed, the
evidence was to the effect that the applicant could undertake light work.
Conclusion
[25]
This
court’s function is to adjudicate on the reasonableness of the PAB’s decision
to deny the applicant’s leave to appeal application. The applicant failed to
establish in his application for leave, grounds for appeal with some reasonable
chance of success at law. For that reason, I find that the decision of the PAB
is within the range of possible, acceptable outcomes defensible in light of the
facts and law and therefore is reasonable: Dunsmuir v New
Brunswick,
2008 SCC 9 para 47.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review be and is hereby dismissed.
2.
There
is no order as to costs.
3.
The
style of cause herein is amended to correctly name as respondent the Attorney
General of Canada.
"Donald
J. Rennie"
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