Date: 20100806
Docket: T-1712-09
Citation: 2010 FC 808
Ottawa, Ontario, August 6,
2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
TAMMY
ANN MURRAY
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I.
Overview
[1]
Ms. Tammy Ann Murray sought disability benefits
under the Canada Pension Plan (CPP) but was turned down by the Minister of
Health, and by a Review Tribunal. Both decision-makers concluded that Ms.
Murray’s disability did not meet the criteria for benefits because, during the
period she was eligible, it was not “severe and prolonged”.
[2]
Ms. Murray asked the Pension Appeal Board (PAB)
for leave to appeal the Review Tribunal’s decision but the PAB dismissed her application.
Ms. Murray argues that the PAB erred and asks me to order a re-assessment of
her application. However, I can find no basis on which to overturn the PAB’s
decision and must, therefore, dismiss this application for judicial review.
[3]
The sole issue is whether the PAB applied the
correct test and rendered a reasonable decision.
II.
Factual Background
[4]
Ms. Murray was laid off from her position as a
hotel night clerk in 2006. In the summer of 2007, she began feeling stiff and
experiencing pain in her feet. She saw a specialist in the fall of 2007 who suspected
Ms. Murray had seronegative rheumatoid arthritis.
[5]
Ms. Murray applied for disability benefits in
December 2007. Based on her previous contributions to the CPP, Ms. Murray
qualified for benefits up to December 31, 2007. However, the Minister denied
her claim because the medical evidence did not indicate that her disability was
severe and prolonged as required under the CPP. Test results and X-rays showed
that her condition was improving.
[6]
Ms. Murray continued to experience chronic pain
and was re-examined by her specialist in March 2008. The specialist suspected
that, although her arthritis was in remission, Ms. Murray was experiencing
fibromyalgia. The fibromyalgia might have been caused by the inflammation brought
about by the pre-existing arthritis.
[7]
Based on this information, Ms. Murray asked the
Minister to reconsider her benefits claim, but without success. Ms. Murray
appealed this decision to the Review Tribunal. The Tribunal also concluded that
Ms. Murray had not shown that she had been experiencing a severe and prolonged
disability prior to December 31, 2007, the last date on which she qualified for
benefits. According to the Tribunal, the medical evidence did not refer either to
fibromyalgia or to an inability to work during the relevant time period.
Evidence on those two points did not appear until March 2008. In addition,
later medical assessments indicated that Ms. Murray’s arthritis had remitted,
but she was experiencing ongoing pain due to fibromyalgia. The Tribunal noted
that the cause of fibromyalgia is unknown.
[8]
After receiving the Review Tribunal’s decision,
Ms. Murray marshalled additional evidence and launched an appeal to the PAB.
The PAB concluded that the evidence did not establish that Ms. Murray had a
severe and prolonged disability as of December 31, 2007, or even in 2009, when
it rendered its decision.
III.
Did the PAB Err?
(a)
Did the PAB apply the correct test?
[9]
When deciding whether to grant leave to appeal,
the role of the PAB is to decide whether the applicant has presented an
arguable case. If the PAB applies the wrong test, its decision must be
overturned.
[10]
Here, the PAB noted that the evidence before the
Review Tribunal did not establish a disability as defined under the CPP during
the time she was eligible for benefits. Nor did her supplementary evidence.
Accordingly, the PAB concluded that Ms. Murray had not presented an arguable
case, and it refused leave to appeal.
[11]
The PAB applied the correct test – whether Ms.
Murray had presented an arguable case for appeal.
(b)
Was the PAB’s decision reasonable?
[12]
A decision is reasonable if it falls within a
range of possible, acceptable outcomes that are defensible based on the facts
and the law. Here, the PAB’s decision would be reasonable if its conclusion
that Ms. Murray had failed to present an arguable case fell within that range,
considering the factual record before it and the statutory definition of a
disability. Under the CPP, applicants are entitled to benefits if the evidence
shows that, during the period of their eligibility, they have a severe and
prolonged disability that prevents them from pursuing any substantially gainful
employment (Villani v. Canada (Attorney General), 2001 FCA 248, at
para. 50).
[13]
In addition to the record that was before the
Review Tribunal, Ms. Murray presented the following new evidence to the PAB:
• A letter to the PAB dated June 9, 2009 in which she
states that she disputes her specialist’s conclusion that her arthritis had
remitted, given that she was still experiencing pain. She explained that she
was going to see another specialist in July 2009.
• A letter dated May 22, 2009 from her family doctor to the
new specialist summarizing Ms. Murray’s medical history and requesting an
opinion.
• General
information Ms. Murray obtained about arthritis from the internet.
• A
letter to the PAB dated August 10, 2009, in which Ms. Murray describes her
recent appointment with her new specialist who, according to Ms. Murray, has
confirmed that her inflammatory arthritis has advanced.
• A
letter dated July 16, 2009 from the new specialist to Ms. Murray’s family
doctor, in which he outlines her medical history and concludes that she has
“polyarthraligias with very minimal findings in the hands, but not the other
joints” which are “inflammatory in nature”. Based on a physical examination of
Ms. Murray, he concluded that “her pain seems out of proportion to the physical
findings” and stated that he planned to carry out further tests, including a
bone scan.
• A
report dated July 17, 2009 setting out the findings of a bone scan: “mild
hyperemia is present in the region of the right ankle joint” which “may reflect
an inflammatory arthropathy. Infection or fracture could result in a similar
appearance.”
• A
report dated July 26, 2009 setting out the findings of an x-ray of Ms. Murray’s
right ankle: “The area of increased uptake noted in the bone scan does not
correspond to a noticeable radiographic abnormality.”
• Miscellaneous
diagrams of the hand and two test results (ESR and CRP), presumably conducted
by the specialist who saw her in July 2009. In his report, he had noted that
she had a “mild elevation of ESR and CRP.”
[14]
In deciding whether the PAB’s decision was
reasonable, I can only consider the evidence that was before it, not the
additional documents that Ms. Murray presented on her application for judicial
review.
[15]
As I see it, none of the new information Ms.
Murray presented to the PAB could cast any doubt on the conclusions of the
Review Tribunal in respect of the key question before it – whether Ms. Murray
was experiencing a severe and prolonged disability that prevented her from
pursuing any gainful employment during the period ending December 31, 2007.
Accordingly, in effect, Ms. Murray had not presented the PAB with any grounds on
which to conclude that the Review Tribunal had made any error, whether of law
or fact.
[16]
In the circumstances, therefore, I cannot find
that the PAB’s decision was unreasonable.
IV. Conclusion and Disposition
[17]
Given the evidentiary
record before it, I find that the PAB’s conclusion that Ms. Murray had not
presented an arguable case was not unreasonable. Ms. Murray had not provided
any evidence showing that the Review Tribunal had erred when it found that she
was not entitled to disability benefits in the period ending December 31, 2007.
Accordingly, I must dismiss her application for judicial review.
JUDGMENT
THIS COURT’S JUDGMENT IS
that:
1. The application for judicial
review is dismissed.
“James
W. O’Reilly”
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