Docket: T-1221-15
Citation:
2016 FC 115
Toronto, Ontario, February 2, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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XHEMAJL OSAJ
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
Mr. Osaj asks the Court to set aside the
decision of the Appeal Division of the Social Security Tribunal [Appeal
Division] denying him leave to appeal a decision of the General Division of
that Tribunal [General Division]. At the General Division, Mr. Osaj succeeded
in establishing his entitlement to a disability pension under the Canada
Pension Plan, RSC 1985, c C-8 [CPP]. His application for leave to appeal
did not challenge the granting of the pension, but its date of commencement.
The General Division had found that he was disabled as of April 13, 2011, but
he maintains that he was disabled 17 months earlier, when he was injured as the
result of a workplace accident on November 27, 2009.
[2]
For the reasons that follow, this application
must be allowed.
[3]
On November 27, 2009, Mr. Osaj sustained
injuries as the result of a serious fall on a job site and he has not returned
to work since then.
[4]
The General Division found that Mr. Osaj became
disabled within the meaning of the CPP on April 13, 2011:
[57] After considering all the evidence,
the Tribunal finds it more likely than not that the Appellant had a severe and
prolonged disability in April 2011 which is before his [Maximum Qualifying Period]
of December 31, 2011. The Tribunal makes this finding particularly in light of
the assessment of Dr. Matthews who reported on April 13, 2011, that the
Appellant had reached maximal medical recovery and was “permanently disabled.”
[58] In short the Tribunal finds that on a
balance of probabilities the Appellant was incapable regularly of pursuing any
substantially gainful occupation as of April 2011. The Tribunal makes this
finding based on medical reports and assessments of Dr. Mihic, Dr. Matthews,
and Dr. Bringleson. The Tribunal also makes this finding based on the Appellant’s
oral testimony about his disability which was consistent, forthright, and
credible.
…
[61] The Tribunal finds that the Appellant
had a severe and prolonged disability in April 2011 when Dr. Matthews reported
that the Appellant was “permanently disabled.” According to section 69 of the
CPP, payments start four months after the date of disability. Payments start
as of August 2011.
[5]
Mr. Osaj submitted that the General Division
applied the wrong test when it found that his disability only became “severe” once he had reached “maximal
medical recovery” and had become “permanently
disabled.” He submitted there, as here, that these concepts form no
part of the test for severity under paragraph 42(2)(a)(i) of the CPP, which
instead requires that a disability render a person “incapable
regularly of pursuing any substantially gainful occupation.”
[6]
The Appeal Division noted that the General
Division had set out the correct test (at paragraphs 7, 9, 40, and 58 of its
decision and not paragraphs 52 and 57 as the Appeal Division stated) and
further found that when the General Division referred to the concepts of “maximal medical recovery” and “permanent disability,” it was not departing from the
test for severity that it had previously articulated, but was quoting the language
used in the medical reports upon which its determination of severity was made.
[7]
Mr. Osaj further submitted that the General
Division had failed to provide adequate reasons for its selection of the date
of onset of disability. In particular, he pointed out that there was other
medical evidence, including an earlier report from Dr. Matthews, that spoke of
him being disabled much earlier than April 2011.
[8]
The Appeal Division noted the General Division’s
statement that it had considered all of the medical reports before it. It held
that the General Division was not unreasonable to identify April 13, 2011, as
the date of onset of disability, based on Dr. Matthews’ report of that date.
[9]
The only issue raised is whether it was
reasonable for the Appeal Division to hold that Mr. Osaj had failed to raise a
ground of appeal with a reasonable chance of success.
[10]
In large measure, Mr. Osaj challenges the Appeal
Division’s decision on the same grounds on which he challenged the General
Division’s decision. First, he submits that it was unreasonable for the Appeal
Division to find that the General Division had applied the correct test for
determining severity. Second, he submits that it was unreasonable for the
Appeal Division to find that the General Division had given adequate reasons
for selecting April 13, 2011, as the date of onset of his disability.
[11]
I agree with the Respondent that the test this
Court must use when considering both issues is reasonableness: see Atkinson
v Canada (Attorney General), 2014 FCA 187, [2015] 3 FCR 461 and Thibodeau
c Canada (Procureur géneral), 2015 CAF 167.
[12]
Subsection 58(1) of the Department of
Employment and Social Development Act, SC 2005, c 34 sets out the
permissible grounds of appeal from a decision of the General Division. It is
not disputed that the grounds raised by Mr. Osaj fell within these accepted
grounds. Leave is required to appeal a decision to the Appeal Division and
subsection 58(2) of the Act provides that “leave to
appeal is refused if the Appeal Division is satisfied that the appeal has no
reasonable chance of success.” It is accepted that having a “reasonable chance of success” in this context means having
some arguable ground upon which the proposed appeal might succeed.
[13]
In my assessment, the two issues raised by Mr.
Osaj are intertwined in that the General Division’s decision that his
disability commenced on April 13, 2011, may be said to be based on an improper
test because the General Division fails to explain why, on the evidence before
it, it picked that date and not an earlier one.
[14]
I agree with the Respondent that the General
Division states the correct test for severe disability in its reasons, namely “incapable [of] regularly pursuing any substantially gainful
occupation.” However, the Appeal Division fails to properly and
reasonably address whether that was the test that the General Division actually
used when it concluded that Mr. Osaj had a severe disability as at April 13,
2011.
[15]
The Appeal Division asserts that the General
Division’s choice of April 13, 2011, was based on the assessment by Dr.
Matthews on that date, and that this choice was reasonable when read in the
context of the other medical evidence. Frankly, I find that statement to be
perverse.
[16]
The Appeal Division does address an earlier report
from Dr. Mihic dated June 8, 2010, (on which the General Division stated it “places weight … as it was forthright about the Appellant’s
medical condition and how it affects his capacity to work”) in which he opined
that “the applicant will not be able to return in the
foreseen future to any kind of temporary and or permanent job.” According
to the Appeal Division, this report differs from the April 2011 report by Dr.
Matthews because it is “not an unequivocal statement of
disability.” In my view, it is unreasonable to describe as equivocal a
medical opinion that states that the patient is unable to work, even on a
temporary basis, but leaves open the possibility of recovery at some
point beyond the foreseeable future. The Appeal Division fails to explain
why Dr. Mihic’s opinion is not an opinion of severe disability nor does it explain
why it saw it as equivocal when, on its face, it appears not to be.
[17]
The Appeal Division views a statement that Mr.
Osaj had reached “maximal recovery” and was “permanently disabled” as an unequivocal statement of
disability, even though neither term is the test for a severe disability.
However, the Appeal Division fails to address how it can be said that the April
2011 report of Dr. Matthews is unequivocal but not his earlier report of
February 1, 2011, in which he says that “Osaj Xhemail
has now permanent and serious impairment of all physical capabilities,” “[h]e has reached maximal medical recovery,” “[h]e is
permanently disabled from work or looking for work,” “[h]is prognosis remains poor,” and “[h]e will remain disabled permanently.” While Dr.
Matthews’ two reports are not identical, the language in both strikes me as
equally forceful and I therefore can see no reason for concluding that only the
latter report represents an “unequivocal statement of
disability.”
[18]
Lastly, neither the General Division nor the
Appeal Division address the following statement in Dr. Matthews’ report dated
June 2, 2011: “Mr. Osaj has a permanent disability
with a very poor prognosis. All of the above are as of June 16 2010”
[emphasis added]. I cannot but note that the date of June 2010 coincides with
the date of Dr. Mihic’s report which the Appeal Division found to be equivocal.
[19]
I short, I find the decision of the Appeal
Division to be unreasonable because it failed to adequately and carefully
consider whether it was arguable that the General Division erred or made an
unreasonable finding as to the onset date of Mr. Osaj’s disability, in light of
the record before it and the proper test to be applied.
[20]
Neither party sought costs. None are ordered.
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