Date: 20111021
Docket: A-147-10
Citation: 2011 FCA 293
CORAM: NADON
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
SHAUNA
NAHAJOWICH
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] In Appeal
CP26112 a majority of the Pension Appeals Board (Board) determined that Shauna
Nahajowich had failed to establish, on a balance of probabilities, that she was
disabled within the meaning of subsection 42(2) of the Canada Pension Plan,
R.S.C. 1985, c. C-8 (Plan). In the view of the majority, she had not
established that she was “incapable regularly of pursuing any substantially
gainful occupation” as required by subparagraph 42(2)(a)(i) of the Plan.
This is an application for judicial review of that decision.
[2] The reasons of the Board are
lengthy. After describing in some detail the evidence before it and the
applicable legal principles, the majority of the Board began its analysis of
the evidence. It noted that Ms. Nahajowich had not worked since March of 2003
after being injured at work while physically restraining a resident of a group
home where she worked as a youth care counsellor. The majority then reviewed
the evidence, which in its view supported the conclusion that Ms. Nahajowich
was capable of returning to work or doing modified sedentary work. The reports
referred to and relied upon by the majority were prepared over the period from
April of 2003 to August of 2004. The Board also referred to a report said to be
prepared in February of 2005 by Dr. Campbell in which he was said to state
that if Ms. Nahajowich entered into an exercise program her prognosis would be
excellent, and a report prepared in April of 2006 in which Dr. Chiu was
said to have encouraged Ms. Nahajowich to be active. The majority of the Board
then concluded as follows:
[84] I have examined and reviewed
the very many medical reports that have been prepared and filed. The Respondent’s
family physician, Dr. Schwalfenberg, is of the view that her condition prevents
her from doing any type of work on a regular basis and that her condition is
unlikely to improve in the future. The other medical evidence however does not
support such a conclusion.
[85] From my review of the other
medical evidence my understanding of it does not support or establish that the
disability of Ms. Nahajowich is one that is “severe” within the meaning of the
term as defined in Paragraph 42(2)(a) of the Plan. Except for the
medical reports of Dr. Schwalfenberg, the other reports of medical doctors and
therapists by and large state that she could either return to work or could do
modified sedentary work. The exercise programs and strengthening exercises that
have been suggested have not been followed. Other than her family doctor the
medical specialists in several different disciplines who have examined Ms.
Nahajowich have not found any pathology or clinical evidence to support her
position that her disability renders her incapable of performing some type of
gainful work.
[3] On an application for judicial
review of a decision of the Board, this Court may only interfere with the
Board’s assessment of the evidence or its application of the law to the
evidence if the Board’s decision is unreasonable. This Court may not reweigh
the evidence or reapply the law to the evidence.
[4] Notwithstanding this deferential
standard of review, I have concluded that the Board’s decision is unreasonable
for the following reasons.
[5] First, missing from the Board’s
analysis is any consideration of the evolution and deterioration of Ms.
Nahajowich’s medical condition. While initially her condition was described to
be pain, mainly in the upper body, resulting from the injury she received while
restraining a youth, over time her condition deteriorated. She was diagnosed
with chronic fibromyalgia triggered by her workplace injury, chronic pain in a
diffuse nature, chronic fatigue and resulting depression. The deterioration in
her condition is described as follows in a letter dated January 18, 2005 from
Alberta Human Resources and Employment, Labour Market and Income Support:
The supports that Shauna required were
being set up for September of 2003 but due to a delay in getting the supports
purchased (e.g. Voice recognition software), training being done on this
software, etc., she was unable to attend. When the supports were finally in
place in January 2004, Shauna’s injury has deteriorated and evolved into
Fibromyalgia/Chronic Myofacial Pain and as a result, she was deemed unfit to
attend school and take the necessary voice recognition training.
[6] Second, and related to this, Ms.
Nahajowich’s minimum qualifying period date (MQP) was agreed to be December 31,
2005. Thus, Ms. Nahajowich was required to establish that her disability
existed as of that date.
[7] As the majority correctly noted,
Dr. Schwalfenberg consistently provided medical opinions to the effect that Ms.
Nahajowich was disabled within the definition contained in the Plan. For
example, on November 22, 2006, Dr. Schwalfenberg opined that Ms. Nahajowich’s
symptoms had not improved over the past two years and it did not appear that
she would be gainfully employed in the future (respondent’s record, page 230).
To similar effect is his report of October 9, 2007, where he noted her
condition prevented her from any type of work on a regular basis (respondent’s
record, page 233).
[8] However, as shown above, the
evidence relied upon by the Board to find Ms. Nahajowich was not disabled
described her condition prior to September of 2004. While the Board did refer
to a report from Dr. Campbell prepared in February of 2005, the index of
relevant material to the Board’s hearing does not contain any reference to a
report prepared by Dr. Campbell in February of 2005. In February of 2006, Dr.
Campbell did provide a report in which he stated that he was “unable to comment
on her capacity or restrictions for any job suitable to her medical condition
at this time. However, in April of 2005 she was probably restricted in what she
could do.” (respondent’s record, page 419). Dr. Chiu’s report of April, 2006
relied upon by the Board stated that her “prognosis is difficult to determine
at this time.” (respondent’s record, page 226).
[9] The evidence relied upon by the
Board to discredit Dr. Schwalfenberg’s evidence was therefore not directed
to an assessment of Ms. Nahajowich’s condition at the end of her MQP. The two
reports prepared in 2006 referred to by the Board were, at best, equivocal.
[10] These two errors cause the Board’s
decision to be unreasonable.
[11] For these reasons, I would allow
the application for judicial review with costs and remit the matter to a
differently constituted panel of the Board for redetermination.
“Eleanor
R. Dawson”
“I
agree
M.
Nadon J.A.”
“I
agree
K.
Sharlow J.A.”
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