Date:
20090225
Docket: A-442-08
Citation: 2009 FCA 58
CORAM: DESJARDINS
J.A.
LÉTOURNEAU
J.A.
TRUDEL J.A.
BETWEEN:
CHRISTINA ERICKSON
Applicant
and
MINISTER OF HUMAN RESOURCES
AND SKILLS DEVELOPMENT
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This
is an application for judicial review of a decision of the Pension Appeals
Board (the Board) finding that the applicant did not have, on or prior to
December 31, 2002, a prolonged or severe disability within the meaning of
paragraph 42(2)(a) of the Canada Pension Plan, R.C.S., 1985, c.
C-8 (the Plan).
[2]
The
applicant is 45 years old and is left-handed. In the years preceding her
illness, she worked as a cashier. She stopped working in 2001. Later that year,
she was diagnosed with left lateral epicondylitis and underwent surgery in
March 2002.
[3]
According
to her, the surgery was to no avail and the pain remained (Board’s reasons at
paragraphs 7-8). Consequently, she applied for benefits to the Canada Pension Plan,
as well as to the Workers’ Compensation Board of British Columbia (the WCB).
[4]
The
WCB Appeal Tribunal accepted the applicant’s claim for chronic pain and awarded
her temporary wage loss benefits for the period of October 10, 2001 through
December 4, 2002 (applicant’s record, tab 2, page 278), as well as a small lump
sum representing 2.5% of total disability due to permanent non-disabling
chronic pain (ibid. at pages 285- 286). As shown from the record, the
WCB did not accept that the applicant’s compensable injury was disabling after
December 2002, as her “lengthy period of unemployment could not be attributed
to the work injury” (ibid. at page 287).
[5]
However,
the applicant’s claim under the Plan was denied at all levels. Whether the
Board erred in upholding the decision of the Review Tribunal and in finding
that the applicant did not qualify for disability benefits under the Plan is
the only issue in this appeal.
[6]
It
is now settled that the standard of review for a determination of disability by
the Board, since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
(Dunsmuir), is the reasonableness standard (Canada (Attorney General)
v. Ryall, 2008 FCA 164 at paragraphs 10-11, Janzen v. Canada (Attorney
General), 2008 FCA 150 at paragraph 5).
[7]
To
be deemed disabled under the Plan, the applicant bore the onus of establishing,
on a balance of probabilities, that her disability was severe, because
it rendered her incapable of regularly pursuing any substantially gainful
occupation, and prolonged because it was likely to be long, continued
and of indefinite duration or was likely to result in death (paragraph 42(2)(a)
of the Plan).
[8]
The
applicant argues that the Board based its decision on erroneous findings of
fact made without regard to the evidence before it. She strongly disagrees
with the Board’s finding that she "could return to her previous employment
if she developed the will to do so" (Board's reasons at paragraph 48;
applicant’s memorandum of fact and law at paragraph 12). According to her,
there was no evidence to that effect. Alternatively, she argues that the Board
erred in preferring the opinion of Dr. Rowan, a general practitioner retained
by the respondent to review the file, over those of Dr. Cudmore and Dr. Blocka,
respectively, her treating family doctor and rheumatologist.
[9]
The
applicant lays emphasis on a 2006 diagnosis made by Dr. Blocka to the effect that
her symptoms were "consistent with a chronic regional musculoskeletal pain
disorder (CRMPD) arising as a consequence of her unresolved bilateral
epicondylitis of the elbows" (appeal book, tab 2, page 351) – an
impression endorsed by Dr. Cudmore (Board’s reasons at paragraph 22). She
contends that the Board "appears to have completely overlooked the
evidence of CRMPD and the opinions that CRMPD prevents the applicant from
working" (applicant’s memorandum of fact and law at paragraph 20).
[10]
I
disagree with the applicant's analysis of the Board's decision. The Board was
well aware of its overall task: determining whether the applicant had a severe
and prolonged disability, which prevented her from performing any gainful
employment, given the options realistically available to her (Board’s
reasons at paragraphs 44-46; Villani v. Canada (Attorney General), 2001
FCA 248 at paragraph 46; Lutzer v. Canada (Minister of Human Resources
Development), 2002 FCA 190 at paragraph 4; Litke v. Canada (Human
Resources and Social Development), 2008 FCA 366 at paragraph 5).
[11]
A
careful examination of the record convinces me that there was leading medical
evidence on the applicant’s condition as well as conclusive evidence on her
lack of employment efforts (see Board's reasons at paragraphs 12, 13, 14, 33,
35, 36 and 48) allowing the Board to conclude as it did. It is not the role of
this Court to reweigh the evidence and to substitute its own opinion to that of
the Board. As the Board applied the correct legal test and reasonably
discharged itself of its duty, the intervention of this Court is unwarranted.
The Board's decision fell within a range of possible acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir, supra
at paragraph 47).
[12]
I
hasten to add that I am strongly sympathetic to the applicant’s plight and do
not doubt that she is experiencing limitations on her quality of life due to
chronic pain. Nevertheless, she has failed to show that the Board committed a
reviewable error.
[13]
Therefore,
I propose to dismiss this application without costs.
"Johanne
Trudel"
"I concur
Alice Desjardins J.A."
"I
concur
Gilles
Létourneau J.A."
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