Date: 20110427
Docket: T-679-09
Citation: 2011 FC 470
Ottawa,
Ontario, April 27, 2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
|
|
JAMES MACDONALD
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision rendered July 28, 2008 by a
designated member of the Pension Appeals Board (PAB) refusing the Applicant leave
to appeal a decision of a Review Tribunal (RT).
[2]
At the
hearing, Ms. Parkinson who is a former lawyer (not the solicitor of record),
asked the permission to make oral representations for the Applicant. Even though
the Respondent filed an objection, the Court granted the permission to Ms.
Parkinson so that she could explain the Applicant’s main arguments in a summary
manner.
[3]
For
the reasons outlined below, this application shall be denied.
Factual background
[4]
The
following facts are an adaptation of paragraphs 4 to 29 of June 10, 2008, RT’s Decision.
[5]
The
Applicant, a self-represented litigant, applied for a disability pension
under the Canada Pension Plan, R.S.C. 1985, c-8 (CPP) in August 2006. He
was employed as a welder/radiograph operator for Trenton Works Limited from April
12, 1996 to April 22, 2005 and stopped working as a result of lower back and
leg pain. Prior to this, the Applicant worked in forestry from March 20, 2002
to July 15, 2002 and prior to that, he worked in retail sales.
[6]
The
Applicant first hurt his back in 2001 while at work. After approximately
nine months of recovery, he was in good shape again. He then hurt his back
again at work bending over to pick up a piece of metal in April 2005, when he
stopped working as a welder.
[7]
After
his injury, his former employer (Trenton Works Limited) found him another
job driving a van. The Applicant started at two hours and worked his
way up to eight hours a day. He was also able to lie down in the van when he
needed to do so. He worked in this position for six weeks until he was
allegedly told by his supervisor that he could not do the job and that he
should go back to the Workers’ Compensation.
[8]
The
Applicant’s main complaint was that of lower back pain which radiates
down his right leg and further, and that the bottom half of his leg was numb.
He alleges that pain in his right leg is there all the time as is the pain in
his lower back. He indicated on his original application that he was unable to
sustain bending, sitting, or standing for any length of time. He stated that
although he used to repair his car and do carpentry, he could no longer
do any such work. Instead, he had to lie flat in bed for long periods in order
to relieve the pain. He has tried a variety of medication and took Tylenol No.
3 for mild relief.
[9]
The
Applicant alleges that since the accident in April 2005, his condition has
gotten progressively worse. The exercises that he did made him sore and did
not help him.
[10]
In
June of 2007, the Workers’ Compensation Board (WCB) tried to look for a job where
the Applicant could work one to two hours per day but was unsuccessful in this
endeavour.
[11]
He
contends that he would have difficulty retraining as he cannot sit in a
classroom for long periods of time, and that the sleeping pills cause him
memory loss.
Medical Reports
[12]
A
CT scan dated May 11, 2004 indicated that there was bulging disc annulus at
L4-5 without evidence of nerve root compromise.
[13]
Functional
Capacity Evaluations (FCE) in January and July 2005 mentioned that the
Applicant could do sedentary to light physical work and had a work day
tolerance estimated at four to eight hours.
[14]
In
a medical report dated June 7, 2005, Dr. William Oxner stated that the Applicant
was having mechanical back pain because of early disc degeneration and that he
was not a candidate for surgery. Dr. Oxner indicated that he should be
retrained for some different type of occupation or a different type of job at
Trenton Works since it was unlikely that he was going to go back to the type of
job that he was doing. Dr. Oxner indicated that it would be likely that he
would have persistent restriction in his ability to do heavy lifting, forward
bending and prolonged sitting.
[15]
In
the FCE of July 2005, it was noted that he had full time work tolerance at the
light to medium physical demand level. It recommended a gradual return to work
to a position that meets his physical tolerance.
[16]
An
MRI report dated October 13, 2005 indicated that the Applicant had mild
to moderate right paracentral disc herniation at L4-5 with an associated
annular tear in which the disc herniation is contacting and mildly effacing the
thecal sac.
[17]
A
medical legal report dated October 5, 2005 by Dr. Robert K. Mahar indicated
that the Applicant’s pain generator had not been identified and that an annular
disc bulge on CT is not a pain generator. Dr. Mahar mentioned that the Applicant
was disabled form his current occupation.
[18]
In
a medical report dated October 27, 2005, Dr. William Oxner wrote that
re-education was the only route for the Applicant at that time. He wrote
that it was unlikely that he was going to return to work as a welder.
[19]
In
a medical report dated August 2, 2006, Dr. Chee diagnosed the Applicant with
(R) paracentral disc herniation and annular tear at L4-5. He stated that the Applicant
had chronic lower back pain and that there was a poor prognosis as he was
unable to even do activities of daily living.
[20]
In
a medical report dated October 11, 2006, Dr. Alexander noted that he reviewed Applicant’s
latest MRI and that it was not necessary to carry out a surgery.
[21]
In
a report dated January 29, 2007, Dr. Koshi from the Pain Management Unit noted that
the Applicant had mechanical low back pain. He stated that the prognosis for
complete resolution of pain was poor and that he would be left with residual
pain. In relation to the prognosis for return to work, he agreed with previous
medical practitioners who had seen him and advised that returning to work at a
light physical demand level would not harm him. He further wrote that the
Applicant had the capacity to return to gainful activity if he decided
to do so. He felt that he did not seem to have any interest in getting
involved in a rehabilitation program with a return to work goal in mind.
Decision by the
Department of Social Development Canada
[22]
The
Department of Social Development Canada denied the Applicant’s application
because he did not fully meet the requirements of CPP. His request for
reconsideration was also denied.
[23]
The
Applicant then appealed the matter to the RT.
Decision of
the RT
[24]
In
a decision dated June 10, 2008, the RT denied the Applicant's application
for the following reasons:
[25]
It
determined that the Applicant did not suffer from a severe disability. It
found that the medical evidence did not support a finding that Applicant's condition
was severe. In fact, the medical evidence, including the opinions of a
specialists and FCEs' supported the Applicant’s ability to retrain and do some
lighter form of work. Two FCEs in January and July (2005) confirmed that the Applicant
had a work day tolerance of between four to eight hours at a more sedentary
form of work. It also found that the time period in which he last met
the contributory requirements as set out in the Plan, was December 31, 2007
(his Minimum Qualifying Period, or MPQ).
[26]
It
also concluded that given the Applicant's age and his level of
education, he should be able to retrain and be able to do some sedentary or
light physical type of employment. It did not accept the evidence that the
Applicant could not sit in a classroom for any length of time in order to be
retrained.
Application for leave to
appeal
[27]
The
Applicant sought leave to appeal the RT’s decision in a letter to the PAB on
the grounds that the RT erred in failing to consider all of the evidence, especially
another FCE dated April 19, 2007 in which it was stated that the Applicant had
a total workday tolerance of 1 to 2 hours. He could not therefore be
considered gainfully employed.
[28]
The
decision of the PAB is the object of the present application.
The legislation is in
the attached appendix
Analysis
[29]
To be
entitled to a disability pension under the Canada Pension Plan,
R.S.C” 1985, c. C-8. (CPP), a person must satisfy three requirements
under subsection 42(2), para 44(1)b) and subsection 44(2) :
i.
Meet the
contributory requirements
ii.
Be
disabled within the meaning of CPP when the contributory requirements were
met; and
iii.
Be so
disabled continuously and indefinitely
[30]
Subsection
42(2) provides that a person shall be considered to be disabled only if
he or she is determined to have a “severe and prolonged mental or physical
disability”.
[31]
A
disability is “severe” if the person is incapable of regularly pursuing any
gainful occupation. It is the capacity to work and not the diagnosis or the disease
description that determines the severity of the disability under the plan.
Disability is not based upon the Applicant’s incapacity to perform his or her
usual job, but rather any substantially gainful occupation (Inclima v
Canada (Attorney General), 2003 FCA 117 (CA), para
3, Canada (Minister of Human Resources
Development) v Scott,
2003 FCA 34, para 7).
[32]
Accordingly,
an Applicant who seeks to bring him/herself within the definition of severe
disability must not only show that he or she has a serious health problem, but,
where there is evidence of work capacity, must show that efforts at obtaining
and maintaining employment have been unsuccessful by reason of that health
condition (Inclima, Klabouch v Canada (Minister of Social Development),
2008 FCA 33, paras 16-17). Medical evidence is required as evidence of
employment efforts and possibilities (Villani v Canada (Attorney General), 2001
FCA 248 paras 44-46 and 50, Klabouch v Canada (Minister of Social Development), 2008 FCA 33, para 16).
[33]
The
Applicant refers to the April 19, 2007 functional assessment in
which it concluded that he could work 1 to 2 hours at a sedentary occupation
(Applicant’s Record, Exhibit 4). He submits that this report was among
the evidence provided at the RT hearing and argued in his application to the
PAB. However, neither decision refers to this assessment which the Applicant
considers to be important, especially in light of it being the most recent
evaluation of his functional ability.
[34]
Furthermore,
he contends that the decision of the PAB does not refer to the fact that
following the two 2005 FCEs, he did attempt to return to work in a more
sedentary occupation driving a van and was unable to keep this position, as he
was told to leave by his employer. He states that this evidence has never been
challenged and was not addressed by the RT or by the PAB.
[35]
However,
the PAB noted that the medical evidence of the specialists (Dr. William, Dr.
Oxner, Dr. Alexander and Dr. Koshi) have indicated that the Applicant had the
ability to retrain and do some light form of work. It also considered
that the two FCEs indicated that the Applicant had work tolerance of
between four to eight hours of a more sedentary form of work and that he should
retrain for a lighter occupation. Although the Applicant contested that he
could endure training, the Court considers that it was open to the PAB
to prefer the medical evidence over the allegations of the Applicant.
[36]
As
to the April 19, 2007, Functional Assessment performed by Dr. Mark Williams, the
following caveats state: "Please note that the estimate for workday
tolerance does not specially pertain to Mr. McDonald's pre-accident work, but
instead provides an estimate of activity tolerance in a general work setting.
The estimate should not be interpreted as a final determination of workday
tolerance for the future, but instead should be viewed as a guideline for
re-entrance to the workforce. The potential for the client to improve upon his
initial estimate exists, provided no medical contraindications are
present." (see page 2, paras 2 and 3)
[37]
The
Court is convinced that the RT considered and analyzed that document (RT’s
decision, para 17).
[38]
The Applicant
relies on Villany and Carvey and Minister of Human Resources
Development, a decision of a PAB, 2003 (Applicant’s Book of Authorities, Tab
5) to argue that the PAB in the case at bar erred.
[39]
PAB’s
are not bound by their own decision and the Federal Court and the Federal Court
of Appeal have held that a decision made by a provincial board such as the WCB
with regards to an Applicant’s entitlement to benefits pursuant to a provincial
statute is irrelevant since the test to apply is different from the CPP
disability test (Callihoo v Canada (Attorney General), [2000] FCJ
No. P12, paras 18 and 20, Harvey v Canada (Attorney
General), 2010 FC 74, paras 49-52).
[40]
It
is true that in the PAB’s decision, the April 2007 functional assessment is not
mentioned but the Court is unable to conclude that the absence of such a
mention is unreasonable due to the unclear and inclusion determination of that
report.
[41]
The
PAB relied on the last available medical reports from 3 specialists (Dr Oxner, Dr.
Alexander and Dr. Koshi) and 2 complete FCE made in 2005. It was therefore in
the province of the PAB to prefer that evidence.
[42]
The
Court's intervention is not warranted.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed.
“Michel
Beaudry”
APPENDIX
Canada Pension Plan, R.S.C. 1985, c-8
|
42.
(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; and
|
42. (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;
b) une
personne est réputée être devenue ou avoir cessé d’être invalide à la date
qui est déterminée, de la manière prescrite, être celle où elle est devenue
ou a cessé d’être, selon le cas, invalide, mais en aucun cas une personne —
notamment le cotisant visé au sous-alinéa 44(1)b)(ii) — n’est réputée être
devenue invalide à une date antérieure de plus de quinze mois à la date de la
présentation d’une demande à l’égard de laquelle la détermination a été
faite.
|
|
44.
(1) Subject to this Part,
(a)
a retirement pension shall be paid to a contributor who has reached sixty
years of age;
(b)
a disability pension shall be paid to a contributor who has not reached
sixty-five years of age, to whom no retirement pension is payable, who is
disabled and who
(i)
has made contributions for not less than the minimum qualifying period,
(ii)
is a contributor to whom a disability pension would have been payable at the
time the contributor is deemed to have become disabled if an application for
a disability pension had been received before the contributor’s application
for a disability pension was actually received, or
(iii)
is a contributor to whom a disability pension would have been payable at the
time the contributor is deemed to have become disabled if a division of
unadjusted pensionable earnings that was made under section 55 or 55.1 had
not been made;
(iv)
[Repealed, 1997, c. 40, s. 69]
…
(2) For the
purposes of paragraphs (1)(b) and (e),
(a) a
contributor shall be considered to have made contributions for not less than
the minimum qualifying period only if the contributor has made contributions
on earnings that are not less than the basic exemption of that contributor,
calculated without regard to subsection 20(2),
(i) for at
least four of the last six calendar years included either wholly or partly in
the contributor’s contributory period or, where there are fewer than six
calendar years included either wholly or partly in the contributor’s
contributory period, for at least four years,
(i.1) for at
least 25 calendar years included either wholly or partly in the contributor’s
contributory period, of which at least three are in the last six calendar
years included either wholly or partly in the contributor’s contributory
period, or
(ii) for each
year after the month of cessation of the contributor’s previous disability
benefit; and
(b) the
contributory period of a contributor shall be the period
(i) commencing
January 1, 1966 or when he reaches eighteen years of age, whichever is the
later, and
(ii) ending
with the month in which he is determined to have become disabled for the
purpose of paragraph (1)(b),
but excluding
(iii) any
month that was excluded from the contributor’s contributory period under this
Act or under a provincial pension plan by reason of disability, and
(iv) in
relation to any benefits payable under this Act for any month after December,
1977, any month for which the contributor was a family allowance recipient in
a year for which the contributor’s unadjusted pensionable earnings are less
than the basic exemption of the contributor for the year, calculated without
regard to subsection 20(2).
|
44.
(1) Sous réserve des autres dispositions de la présente partie :
a) une
pension de retraite doit être payée à un cotisant qui a atteint l’âge de
soixante ans;
b) une
pension d’invalidité doit être payée à un cotisant qui n’a pas atteint l’âge
de soixante-cinq ans, à qui aucune pension de retraite n’est payable, qui est
invalide et qui :
(i)
soit a versé des cotisations pendant au moins la période minimale
d’admissibilité,
(ii)
soit est un cotisant à qui une pension d’invalidité aurait été payable au
moment où il est réputé être devenu invalide, si une demande de pension
d’invalidité avait été reçue avant le moment où elle l’a effectivement été,
(iii)
soit est un cotisant à qui une pension d’invalidité aurait été payable au
moment où il est réputé être devenu invalide, si un partage des gains non
ajustés ouvrant droit à pension n’avait pas été effectué en application des
articles 55 et 55.1;
(iv)
[Abrogé, 1997, ch. 40, art. 69]
….
2)
Pour l’application des alinéas (1)b) et e) :
a) un
cotisant n’est réputé avoir versé des cotisations pendant au moins la période
minimale d’admissibilité que s’il a versé des cotisations sur des gains qui
sont au moins égaux à son exemption de base, compte non tenu du paragraphe
20(2), selon le cas :
(i)
soit, pendant au moins quatre des six dernières années civiles comprises, en
tout ou en partie, dans sa période cotisable, soit, lorsqu’il y a moins de
six années civiles entièrement ou partiellement comprises dans sa période
cotisable, pendant au moins quatre années,
(i.1)
pendant au moins vingt-cinq années civiles comprises, en tout ou en partie,
dans sa période cotisable, dont au moins trois dans les six dernières années
civiles comprises, en tout ou en partie, dans sa période cotisable,
(ii)
pour chaque année subséquente au mois de la cessation de la pension
d’invalidité;
b) la
période cotisable d’un cotisant est la période qui :
(i)
commence le 1er janvier 1966 ou au moment où il atteint l’âge de dix-huit
ans, en choisissant celle de ces deux dates qui est postérieure à l’autre,
(ii)
se termine avec le mois au cours duquel il est déclaré invalide dans le cadre
de l’alinéa (1)b),
mais
ne comprend pas :
(iii)
un mois qui, en raison d’une invalidité, a été exclu de la période cotisable
de ce cotisant conformément à la présente loi ou à un régime provincial de
pensions,
(iv)
en ce qui concerne une prestation payable en application de la présente loi à
l’égard d’un mois postérieur à décembre 1977, un mois relativement auquel il
était bénéficiaire d’une allocation familiale dans une année à l’égard de
laquelle ses gains non ajustés ouvrant droit à pension étaient inférieurs à
son exemption de base pour l’année, compte non tenu du paragraphe 20(2).
|
Email this Content