Docket: T-869-15
Citation:
2016 FC 1209
Ottawa, Ontario, November 3, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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DENISE PLAQUET
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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
I.
Nature of the Matter
[1]
This is an application for judicial review by
Denise Plaquet [the Applicant] pursuant to s. 18.1 of the Federal Courts Act,
RSC 1985, c F-7, of a decision made on April 24, 2015, by a member of the
Social Security Tribunal – Appeal Division (SST-AD) [SST-AD Decision], in which
the Applicant’s request for leave to appeal a decision made by the Social
Security Tribunal – General Division (SST-GD) [SST-GD Decision] was denied,
pursuant to section 58 of the Department of Employment and Social
Development Act, SC 2005, c 34 (DESDA). The SST-GD Decision, made on
March 11, 2015 dismissed an appeal from the denial of the Applicant’s
application for Canada Pension Plan (CPP) disability benefits at both the
initial application stage [Denial Letter] and on reconsideration
[Reconsideration Denial Letter].
[2]
Judicial review is granted for the reasons that
follow.
II.
Facts
[3]
The Applicant is a 52-year-old woman whose work
experience is largely in general labour and machine operation. In 1995, she
experienced a workplace injury that resulted in several physical and mental
limitations. She has been diagnosed with Osgood-Schlatter Disease,
fibromyalgia, spinal fatigue, tendonitis, chronic pain disorder and mood
disorder with dysthymia (chronic depression). She is unable to sit or stand for
prolonged periods of time, reach overhead, look up or down, remain in a static
position, or bend repetitively. She is no longer able to take care of her home
or do simple activities like brushing her cat. At the time of her second
application for CPP disability benefits in 2011, she was receiving benefits
from Ontario’s provider of workers’ compensation, the Workplace Safety and
Insurance Board [WSIB].
[4]
The Applicant has a Grade 12 education. During
her testimony, she told the SST-GD that she ceased her studies upon finding
full-time work in 1983/1984. She attempted to complete a college program for
computer skills but alleges that she was unsuccessful due to her chronic pain.
[5]
The Applicant stopped working on September 26,
2002. She claims that she ceased work due to loss of function and complex
disabilities arising from her chronic pain and spinal fatigue.
[6]
In January 2005, the WSIB approved the Applicant
for a financial planner course and she took upgrading classes. She quit in
September of that year due to “harassment” from
school staff.
[7]
The Applicant has made two unsuccessful
applications for a CPP disability pension: the first in 2002, which was
rejected in 2005 and a second in 2011, which is at issue today.
THE FIRST APPLICATION FOR CPP
DISABILITY BENEFITS - 2002
[8]
The Applicant made her first application for CPP
disability on November 4, 2002. Her application was initially denied by the
Respondent on January 29, 2003 and again upon reconsideration on November 5,
2003. The Applicant appealed the disability benefits denial to the Office of
the Commissioner of Review Tribunals (OCRT). Her appeal was dismissed on July
13, 2004 [OCRT Decision]. At that time, the OCRT found her minimum qualifying
period (MQP) was December 2004. In dismissing the Applicant’s appeal, the OCRT
Decision made note of the following:
[…] The [Applicant] listed multiple medical
conditions as the reason she could no longer work including chronic right
shoulder pain, neck pain, degenerative disc disease, chronic cervical back
pain, headaches and sleep deprivation.
[…]
The [Applicant’s] family physician for over
15 years, Dr. I.J. MacLean, diagnosed the [Applicant] with tendonitis,
degenerative disc disease and chronic intractable muscular pain in the upper
back, leg, neck and shoulder girdle since an accident in 1995 […].
[…]
[…] the [Applicant] stated that she takes
Tylenol #3’s for pain when needed […] about three times per week and takes no
other medications.
The [Applicant] testified that she briefly
took Celexa (antidepressant) for two months but discontinued it due to side
effects. She has no other psychological and psychiatric treatment.
[…] she did have an emergency room visit in
1998 for muscle spasm [sic] but since then has had no emergency room or
hospital admissions.
[…]
An initial physiotherapy assessment on May
29, 2000 was done regarding the [Applicant’s] three year history of neck and
right shoulder pain […]. A physiotherapy program and conservative treatment was
recommended.
[…] a Functional Abilities Evaluation (FAE)
performed in April 2004 […] suggested that there would certainly be work the
Appellant should be able to undertake, albeit modified.
It was also reported in the FAE that the
[Applicant] indicated she was called back to work by her original employer,
Navistar, on March 8, 2004 but had not yet returned based on her waiting for
restrictions and waiting for a job that can accommodate such limitations.
[…]
There is no indication that the Applicant
was ever referred to a pain clinic for her reported chronic pain.
[9]
The OCRT Decision also referenced several X-Rays
on the Applicant’s file:
•
Cervical spine x-rays (May 13, 2002), showing
mild degenerative changes;
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Thoracic spine x-rays, showing minimal
degenerative changes; and
•
Right hand x-rays, showing no significant abnormality.
[10]
The Applicant did not appeal the 2004 OCRT
Decision to the Pension Appeals Board (PAB). Consequently, pursuant to what was
then s. 84 of the CPP Act, the OCRT Decision regarding the Applicant’s
CPP disability as of July 13, 2004 became final and binding, which is not in
dispute.
THE SECOND APPLICATION FOR CPP
DISABILITY BENEFITS - 2011
[11]
The Applicant’s second application for CPP
disability was made on April 7, 2011. It was denied on November 9, 2011.
[12]
The Denial Letter informed the Applicant of the
final and binding nature of the earlier OCRT Decision:
The legislation states that once a Review
Tribunal makes a decision, their decision is final and binding on
all parties to the appeal. This means that CPP cannot change their decision.
[emphasis in original]
[13]
It then identified the relevant times for the
Applicant’s current disability application:
However, since the time of your Review
Tribunal hearing, the last date you had sufficient contributions to the CPP to
qualify for Disability benefits is December 2004. This means that for you to be
eligible to receive a CPP Disability benefit we must determine whether your
disability was severe and prolonged after July 13, 2004 to December 2004, the
date you last qualified for benefits.
[14]
The Denial Letter included a list of documents
that had been reviewed, including the 2002 CPP disability benefits application
and all related documentation, the family doctor’s report from July 2011 and
other medical reports from October 2002 to April 2011. It concluded:
We recognize that you have identified
limitations resulting from your fibromyalgia, and depression. However, the
following factors were also considered:
• [...] you
attended a pain program and saw a pain specialist in 2005, […] In addition you
do not currently take any significant medication for pain.
• […] in April
2004, your functional abilities assessment suggested that you could do modified
work. We have not received any new information from July 2004 to December 2004
indicating that you were unable to perform such work, in fact there is no
evidence that you have attempted to return to work.
[15]
The Applicant sought reconsideration. However,
reconsideration was denied February 15, 2012. The Reconsideration Denial Letter
outlined several additional limitations the Applicant had identified: “mobility, personal needs, bowel and bladder habits,
household maintenance, sight, concentration, sleeping, breathing, driving a
car, using public transportation.” In addition to re-iterating the same
considerations that had been included in the initial Denial Letter, the Reconsideration
Denial Letter stated:
• In January
2007, the pain program report noted you returned to school via WSIB in January
2005 to September 2005 to be a financial planner but stopped due to
“harassment: from the school staff. [sic] Therefore, you engaged in
schooling in the view of an alternate occupation. You stopped the education due
to “harassment” not noted due to the medical condition. School is considered
the equivalent to sedentary work and thus you demonstrated capacity for working
after the last time you can be considered disabled due to earnings and
contributions, December 2004.
• In January
2007, the report also noted Dr. Mailis-Gagnon stated you did not fulfil the
criteria for fibromyalgia at that time and provided a diagnosis of chronic pain
disorder […] there are no objective findings of a severe condition. Chronic
pain in the absence of a pathological medical condition does not preclude all
activity including suitable work.
• The objective
evidence on file for December 2004, the last time you can be found disabled due
to earnings and contributions, does not indicate a severe condition that would
preclude all types of work.
[16]
The Reconsideration Denial Letter concluded
that, while the Applicant may not have been able to do her usual work, she was
able to do some type of work. The Applicant appealed this decision to the OCRT.
[17]
The appeal was transferred from the OCRT to the
SST-GD on April 1, 2013, pursuant to s. 257 of the Jobs, Growth and
Long-Term Prosperity Act, SC 2012, c 19.
[18]
The Applicant had an oral hearing of her appeal
before the SST-GD. On March 11, 2015, the SST-GD dismissed her appeal. The
SST-GD recognized the final and binding nature of the OCRT Decision, stating:
[…] the Tribunal does not have the
jurisdiction to consider the issue of disability prior to July 13, 2004 (Candelaresi
v MSD (February 21, 2005), CP 21406 (PAB).
[19]
Therefore, the issue was whether it was more
likely than not that the Applicant had a severe and prolonged disability from
July 13, 2004 to the date of her MQP on December 31, 2004 [the “relevant time”].
[20]
The SST-GD found it must determine whether there
was evidence of a new condition or a change in the circumstances of the
Applicant’s condition at relevant time.
[21]
The SST-GD concluded that there was “[…] no evidence of a new condition […]” [STT-GD
Decision at para 36] and that the “[…] medical evidence
before the Tribunal did not show that the [Applicant’s] condition had worsened
between July 2004 and December 31, 2004 […]” [SST-GD Decision at para
39]. Instead, the Member found that the “symptoms and
diagnoses of the [Applicant’s] condition as early as 2002 has remained
consistent with the medical evidence provided at her MQP.” The SST-GD
stated:
[40] The Appellant also provided
medical evidence post her MQP. The Tribunal noted Dr. Leung’s diagnosis of
fibromyalgia and depression in December 2005 which she described as secondary.
However, this is one year post the Appellant’ MQP. There is no evidence that
either of these conditions was evident in 2004 or that either would have
precluded the Appellant from working. In fact, in June 2005, attendance at
the Pain Management Clinic noted that the Appellant had rebounded from her
emotional instability and the report of Dr. Chandrasena, psychiatrist, in 2006
noted that the Appellant was relatively stable and there was no psychiatric or
psychological condition that would prevent the Appellant from being employed.
The medical evidence of Dr. Angela Mallis-Gagnon [sic] of January 2007 concluded
that the radiological investigations conducted were all unremarkable. As well,
the Appellant was neurologically intact and did not even reproduce pain across
the areas of which she had complaints. Further, the Appellant was only tender
in 4/18 fibromyalgia tender points. Based on her examination, Dr.
Maillis-Gagnon concluded that the Appellant did not fulfill the tender point
criteria for fibromyalgia. The conclusions reached in this evidence were well
past the Appellant’s MQP. Therefore, the Tribunal finds that there is no
evidence to suggest that between July 14, 2004 and December 31, 2004, the
Appellant suffered from any new condition, which would have prevented her from
all work.
[41] The Appellant argued that an issue
of concern before the OCRT in July 2004 was the lack of a report from
attendance at a pain management clinic regarding the issue of chronic pain. The
Appellant argued that she attended the pain management clinic from March 2005
to June 2005 for 12 sessions. However, while it was the conclusion of the
Pain Management Center that the Appellant had a poor prognosis for significant
functional advancement and that further psychoeducational like therapy would
likely not enhance her health, this is not evidence that the Appellant suffered
from a new condition since July 13, 2004 or that her condition worsened between
July 13, 2004 and her MQP that would render her disabled in accordance with the
CPP. It is the effects of the condition and not the diagnosis that is the
focus of the Tribunal. In this case, the symptoms associated with her chronic
pain remained the same between July 13, 2004 and her MQP as evidenced by the
Appellant’s testimony and the medical evidence.
…
[43] The Tribunal finds that there is
no evidence of a new condition or a change in circumstances of the Appellant
between July 13, 2004 and December 31, 2004. […]
[emphasis added]
[22]
The Member concluded the Applicant “[did] not suffer from a severe disability within the meaning
of the CPP.”
[23]
The Applicant applied for leave to appeal the
SST-GD’s decision on April 1, 2015. The SST-AD denied leave to appeal on April
24, 2015.
III.
Decision under Review
[24]
The SST-AD indicated that, in order to succeed
on an application for leave to appeal to the SST-AD under DESDA, the
Applicant must present an arguable ground upon which the proposed appeal might
succeed. The Member cited case law for the proposition that an arguable case is
“akin to whether legally an applicant has a reasonable
chance of success.” She made note of the fact that, pursuant to s. 58(1)
of DESDA, there are only three grounds under which an appeal to the
ST-AD can be considered.
[25]
The SST-AD made the following findings:
[9] The Applicant’s repetition of her
contention that she was disabled is not a ground of appeal that has a reasonable
chance of success on appeal. It does not point to any error of fact or of law,
or to any breach of the principles of natural justice made by the General
Division.
[10] In addition, I accept that the
Applicant was not diagnosed with chronic pain syndrome, mood disorder with
dysthymia or depression prior to the Review Tribunal hearing in 2004 despite
having symptoms of these conditions. However, in Klabouch v Canada
(Social Development) 2008 FCA 33 the Federal Court of Appeal concluded that
it is not the diagnosis of a condition but its impact on a claimant’s ability
to work that is determinative of disability. Consequently, I am not satisfied,
in this case, that the fact that new diagnoses were made based on the same
symptoms is a ground of appeal that has a reasonable chance of success on
appeal.
[emphasis added]
[26]
The SST-AD Member concluded that the grounds of
appeal put forward by the Applicant did not have a reasonable chance of success
on appeal and, on that basis, refused the Applicant’s application for leave.
IV.
Issues
[27]
At issue is whether the SST-AD’s conclusion that
the Applicant’s proposed appeal was not based in a ground under s. 58 of DESDA
that had a reasonable chance of success on appeal, is reasonable in light if
the medical evidence provided.
V.
Standard of Review
[28]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
A decision by the SST-AD granting or refusing leave to appeal should be
reviewed on the reasonableness standard. Canada (Attorney General) v
O’keefe, 2016 FC 503 at para 17, which also states that “substantial deference” should be given to the SST-AD
decision; Tracey v Canada (Attorney General), 2015 FC 1300 at para 17; Canada
(Attorney General) v Hoffman, 2015 FC 1348 at para 27.
[29]
In Dunsmuir at para 47, the Supreme Court
of Canada also sets out what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.
VI.
Relevant Provisions
[30]
DESDA governs the
operation of the Social Security Tribunal. Subsection 58(1) provides the only
three grounds of appeal from a decision of the SST-GD:
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Grounds of appeal
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Moyens d’appel
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58 (1) The only grounds of appeal
are that
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58 (1) Les seuls moyens d’appel sont les
suivants :
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(a) the General Division failed to
observe a principle of natural justice or otherwise acted beyond or refused
to exercise its jurisdiction;
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a) la division générale n’a pas observé un
principe de justice naturelle ou a autrement excédé ou refusé d’exercer sa
compétence;
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(b) the General Division erred in
law in making its decision, whether or not the error appears on the face of
the record; or
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b) elle a rendu une décision entachée d’une
erreur de droit, que l’erreur ressorte ou non à la lecture du dossier;
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(c) the General Division based its
decision on an erroneous finding of fact that it made in a perverse or
capricious manner or without regard for the material before it.
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c) elle a fondé sa décision sur une
conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans
tenir compte des éléments portés à sa connaissance.
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Criteria
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Critère
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(2) Leave to appeal is refused if
the Appeal Division is satisfied that the appeal has no reasonable chance of
success.
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(2) La division d’appel rejette la demande
de permission d’en appeler si elle est convaincue que l’appel n’a aucune
chance raisonnable de succès.
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Decision
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Décision
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(3) The Appeal Division must
either grant or refuse leave to appeal.
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(3) Elle accorde ou refuse cette
permission.
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[31]
The requirements to obtain disability benefits
under the Canada Pension Plan, RSC 1985, c C-8 [CPP Act] are
found in sections 42 and 44 of the CPP Act. Subsection 44(1)(b) sets
out eligibility requirements for the CPP disability pension. Subsection
42(2) defines “disability” for the purposes of
the statute. Under s. 42(2)(a), a person is considered disabled when they have
a “severe and prolonged” mental or physical
disability. A disability is “severe” when it
renders the person incapable regularly of pursuing any substantially gainful
occupation [CPP Act s. 42(2)(a)(i)]. A disability is “prolonged” when it is likely to be long continued and
of indefinite duration or is likely to result in death [CPP Act s.
42(2)(a)(ii)] Subsection 42(2)(a) is conjunctive; a person must satisfy both
the “severe” and “prolonged”
criteria in order to be found disabled within the meaning of the CPP. If they fail
to satisfy one of the two criteria, the other need not be assessed. Subsection
42(2)(b) puts a temporal limit on when a person may be deemed disabled.
VII.
Parties’ Submissions and Analysis
A.
Applicant
[32]
The Applicant argues the SST-GD failed to
consider allegedly new conditions that arose after the OCRT Decision and during
the relevant period (July 13, 2004 to December 31, 2004). In this respect, the
Applicant relies on evidence: (1) that she suffered from chronic pain,
depression and anxiety as described in the October 29, 2004 report by Dr.
Plotnick containing his recommendation for 12 pain management sessions; (2) a
subsequent June 2005 report from the Pain Management Clinic; and (3) a
September 19, 2005 report of Dr. Chandrasena, a psychiatrist, who diagnosed the
Applicant with “chronic pain syndrome” and “mood
disorder with dysthymia with depression”. These three documents
describe her conditions, provide medical diagnoses and prognoses; all three
assessments were made after the OCRT Decision of July 13, 2004. The Applicant says
they describe her conditions in the critical intervening period between July
and December, 2004, and that they differ from the diagnoses and prognoses prior
to that time. She says these reports, diagnoses and prognoses were not considered
by the OCRT in 2004. She is correct that these reports were not before the OCRT
at that time; this is not disputed.
B.
Respondent
[33]
The Respondent argues the SST-AD Decision was
reasonable because it identified and applied the correct legal test and evidenced
an awareness of the main thrust of the Applicant’s leave application.
[34]
The Respondent argues that pain was the issue
before the CPP adjudicators and reviewing tribunals not only in the 2011
application, but as far back as the 2002 application as well. The SST-AD
Decision reasonably referred to Klabouch v Canada (Minister of Social
Development), 2008 FCA 33 [Klabouch] and reasonably concluded that
the appearance of an official diagnosis of pre-existing symptoms that had
already been considered did not give rise to a ground of appeal that had a
reasonable chance of success. The Respondent says that the impact of these
pre-existing conditions was previously and finally considered by the OCRT and
that these three new reports, while dated after the OCRT Decision do not shed
new light on her condition in the MQP.
C.
Analysis
[35]
In my respectful view, judicial review should be
granted because the SST-AD’s decision to the effect that the Applicant’s
arguments did not give rise to a ground of appeal that had a reasonable chance
of success, is unreasonable. The SST-AD’s decision is not justifiable or
defensible in respect of the facts and law, as required by the Supreme Court of
Canada’s decision in Dunsmuir.
[36]
First, the SST-GD held, contrary to the evidence,
that new conditions suffered by the Applicant, which it correctly found were
not before the OCRT in 2004, did not alter her employability as assessed by the
2004 OCRT Decision. The SST-GD, in my view, failed to reasonably assess how the
new diagnoses of chronic pain syndrome and chronic depression outlined in these
reports impacted and affected the Applicant’s employability. The three new
reports provided a new understanding of what she suffers from, and what she
faces in her “real world” employability context.
[37]
In my view, the three reports referred to in
para. 32 above do not simply give new labels to old symptoms; instead they
provide evidence of a profound change in her prognosis, both medically and more
importantly in terms of her employability. In this the SST-GD acted
unreasonably.
[38]
Secondly, the SST-GD acted unreasonably (and
erred in applying established law) in determining that the test for severe
disability requires the Applicant to establish that her new diagnosis and
forward-looking prognoses prevent her from “all work.”
That finding places the bar too high and is contrary to the Federal Court of
Appeal’s decision in Villani v Canada (Attorney General), 2001 FCA 248 [Villani].
[39]
In these two respects, the SST-AD acted
unreasonably because it refused leave notwithstanding that the Applicant had a
reasonable prospect of success on her proposed appeal under paragraphs 58(1)(b)
and (c) of DESDA.
D.
Unreasonably failing to consider the impact of
the new conditions on the Applicant’s employability - DESDA s. 58(1)(c))
[40]
Before going further it is useful to consider
the meaning of two of the terms discussed in the three reports, namely chronic
pain syndrome and fibromyalgia.
Chronic pain syndrome
[41]
The Supreme Court of Canada described chronic
pain syndrome in Nova Scotia (Workers’ Compensation Board) v Martin; Nova
Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54:
1 Chronic pain syndrome and related
medical conditions have emerged in recent years as one of the most difficult
problems facing workers' compensation schemes in Canada and around the world.
There is no authoritative definition of chronic pain. It is, however, generally
considered to be pain that persists beyond the normal healing time for the
underlying injury or is disproportionate to such injury, and whose existence is
not supported by objective findings at the site of the injury under current
medical techniques. Despite this lack of objective findings, there is no doubt
that chronic pain patients are suffering and in distress, and that the
disability they experience is real. While there is at this time no clear
explanation for chronic pain, recent work on the nervous system suggests that
it may result from pathological changes in the nervous mechanisms that result
in pain continuing and non-painful stimuli being perceived as painful. These
changes, it is believed, may be precipitated by peripheral events, such as an
accident, but may persist well beyond the normal recovery time for the
precipitating event. Despite this reality, since chronic pain sufferers are
impaired by a condition that cannot be supported by objective findings, they
have been subjected to persistent suspicions of malingering on the part of
employers, compensation officials and even physicians.
Fibromyalgia
[42]
The following concerning fibromyalgia is stated
in Fontaine v Canada, 2009 TCC 162 per Archambault T.C.J.
49 Although I noted no such problems at
the hearing, it is possible that Mr. Fontaine now has serious walking problems.
However, I have not been convinced that they existed in 2005 and 2006.
Fibromyalgia, which appears to have been diagnosed by Dr. Villeneuve in 2007,
would more likely account for such problems than atypical autonomic headache.
The following definition of fibromyalgia is from Stedman's Medical
Dictionary, 28th ed.:
Fibromyalgia is a disorder of unknown
cause characterized by chronic widespread aching and stiffness,
involving particularly the neck, shoulders, back, and hips, which is aggravated
by use of the affected muscles. The American College of Rheumatology has established
diagnostic criteria that include pain on both sides of the body, both above and
below the waist, as well as in an axial distribution (cervical, thoracic,
lumbar spine, or anterior chest). Additionally, point tenderness must be found
in at least 11 of 18 specified sites. Tender points are sharply localized and
often bilaterally symmetric. Some points may correspond to sites of pain and
others may be painless until palpated. Usually associated fatigue, a sense
of weakness or inability to perform certain movements, paresthesia,
difficulty sleeping, and headaches are found. About one fourth of patients with
fibromyalgia receive partial or total disability compensation. Fibromyalgia
frequently occurs in conjunction with migraine headaches, temporomandibular
joint dysfunction, irritable bowel syndrome, restless legs syndrome, chronic
fatigue, and depression; symptoms are typically exacerbated by emotional
stress. The prevalence in the U.S. is estimated at 1-3% of the population, with
all races and socioeconomic strata affected about equally. Most patients (90%)
are adult women. The onset of symptoms usually occurs before age 50. The
disorder is chronic but not progressive. Routine hematologic, serologic, and
imaging studies yield uniformly normal results. However, the sleep EEG
typically shows intrusions of alpha waves into non-REM sleep and infrequent
progression to stage 3 and stage 4 sleep. One third of patients with
fibromyalgia have low insulin like growth factor (IGF) levels. Elevation of
cerebrospinal fluid substance P, depression of cortisol production, and
orthostatic hypotension have also been reported. Most patients experience
moderate to severe disability, but symptoms can usually be mitigated by
treatment. Effective treatment programs include education, a regular
program of low-impact aerobic exercise, and physical therapy as needed.
Cognitive therapy and group therapy are often helpful. About one third of
patients respond to pharmacologic agents such as antidepressants
(amitriptyline, fluoxetine) and muscle relaxants (cyclobenzaprine).
[emphasis in original]
[43]
Both divisions below acknowledge that the
Applicant suffered from conditions that were not diagnosed at the time of the
OCRT Decision in July, 2004. The conditions now diagnosed were not in evidence
before the OCRT.
[44]
At paragraph 10 of its decision, the SST-AD
found that the Applicant was not diagnosed with chronic pain syndrome, mood
disorder with dysthymia or depression prior to the OCRT hearing in 2004 (this
paragraph is quoted in its entirety above at para 22):
In addition, I accept that the Applicant was
not diagnosed with chronic pain syndrome, mood disorder with dysthymia or
depression prior to the Review Tribunal hearing in 2004 despite having symptoms
of these conditions.
[45]
At paragraph 40 of its decision, the SST-GD also
noted the more recent diagnoses of fibromyalgia and depression and found no
evidence that either of these conditions was evident in 2004 (this paragraph is
quoted in its entirety above at para 18):
There is no evidence that either of these
conditions was evident in 2004 or that either would have precluded the
Appellant from working.
[46]
The SST-GD and SST-AD use different terms to
describe the diagnoses presented in the three new reports. However, I was not
pointed to any difference between diagnoses of fibromyalgia and depression, as
discussed by the SST-GD, and chronic pain syndrome, mood disorder with
dysthymia (chronic or long term depression), as considered by the SST-AD. For convenience,
I will refer to them as chronic pain syndrome/fibromyalgia, and mood
disorder/chronic depression.
[47]
While the Respondent says that “pain was the issue” in both the 2002 and 2011
applications, which is true in a sense, this over-simplifies the matter. In my
view, there is a difference between symptoms of “chronic
right shoulder pain, neck pain, degenerative disc disease, chronic cervical
back pain, headaches and sleep deprivation” (as found by the OCRT) and
what we now know to be chronic pain syndrome/fibromyalgia.
[48]
I agree that simply identifying different
conditions, i.e. making different diagnoses, does not assist the Applicant if
the resulting forward-looking prognoses for her employability are the same. However,
that is not the situation in this case. Here, the prognoses for the Applicant’s
employability changed materially, and for the worse, as a result of the new
diagnoses.
[49]
It is not the different diagnoses but the change
in their related prognoses that is of critical importance to resolving
this case. It is the change in prognoses that the divisions below failed
to appreciate in reaching their conclusions. In my view, the impacts of the new
prognoses are demonstrated by comparing the report of Dr. Plotnick of October,
2004 with the Pain Management Report of June 2005.
[50]
Before doing so I wish to note that Dr. Plotnick
was retained not by the Applicant, but by the WSIB to assess her for WSIB
purposes following a workplace injury in 1995; I therefore consider his
evidence and reports independent and reliable.
[51]
The 2004 report of Dr. Plotnick was in essence
an interim report. It stated, among other things, that “[T]here was an absence of updated medical information
accompanying the referral. Accordingly, the opinions to follow may be subject
to alteration or revision pending the provision of medical or rehabilitation
reports at some future date.” Dr. Plotnick’s report concluded
that the Applicant’s medical evaluations appeared to be “somewhat inadequate”. He said that both the diagnosis
of her current medical condition, and the treatment rendered to date were “lacking.” At page 11, Dr. Plotnick recommended “[r]eferral to the appropriate medical professionals for
comprehensive evaluation, diagnosis and treatment as may be warranted.”
Part of his mandate was to make recommendations to assist the Applicant in
re-engaging with the workplace.
[52]
Dr. Plotnick’s report concerning the Applicant’s
employment prospects on re-entering the work force was very guarded. He
identified possible jobs for the Applicant, but only as “options.” In fact, Dr. Plotnick explicitly stated at
page 13 that these options “are subject to
consideration in respect of [the Applicant’s] physical capabilities”
which, as he had stated earlier, were in need of proper evaluation, diagnosis
and treatment.
[53]
Indeed, Dr. Plotnick anticipated, at page
11, that the pain experienced by the Applicant (not then chronic pain
syndrome/fibromyalgia) would be “apt to represent a
significant and limiting factor in the context of the [Labour Market Re-entry]
and further vocational endeavours.”
[54]
Dr. Plotnick’s recommendations in this interim
report were followed; thereafter, the Applicant saw a number of medical
professionals, and had further assessments conducted by a pain management team,
which included Dr. Plotnick, all of which took place over 12 sessions. These
sessions culminated in a Pain Management Report, dated June 15, 2005.
[55]
While the Applicant’s prospects were qualified
in Dr. Plotnick’s October 2004 report, which called for further investigation,
the 2005 Pain Management Report confirmed a poor prognosis in terms of
the Applicant’s employability. In my view, this presents a very different
employability impact than previously identified.
[56]
The Pain Management Report concluded: “[T]he collection of issues outlined in the body of this
report and [the Applicant’s] complex medical phenomenon draw a poor
prognostic indication for significant functional advancement. Further
psychoeducational like therapy would not appear to enhance her health status to
the degree that occupational objectives would likely be realized.”
[emphasis added] This speaks directly to the Applicant’s employability, or more
appropriately, her unemployability.
[57]
Subsequently, the Applicant was diagnosed with
chronic pain syndrome with a 50+ Global Assessment of Functioning (GAF) by the
psychiatrist, Dr. Chandrasena, whose report is dated September 19, 2005.
[58]
To understand what the GAF is, the Respondent
provided the following excerpt from the American Psychiatric Association’s
DSM-IV Manual, Diagnostic and Statistical Manual of Mental Disorders, 4th
ed. (1994) at page 34:
|
51-60
|
Moderate symptoms
(e.g., flat affect and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational or school functioning (e.g., few
friends, conflicts with peers or co-workers).
|
|
41-50
|
Serious symptoms
(e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR
any serious impairment in social, occupational, or school functioning (e.g.,
no friends, unable to keep a job).
|
[59]
In my view, the SST-GD dismissed the Pain Management
Report based on selective extracts. Where the SST-GD erred was in failing to
consider the “real world” impact of the new
diagnosis and resulting prognosis in respect of chronic pain
syndrome/fibromyalgia on this Applicant. This is ironic in that the SST-GD
correctly stated, “[…] it is the effects of the
condition and not the diagnosis that is the focus of the Tribunal,” but
then went on to say that “the symptoms associated with
her chronic pain [remained the same] […].” It did not follow its own guidance
in that respect. This was an erroneous finding in that it looked at the diagnoses
without appreciating the related prognoses i.e., forecast consequences
of those same diagnoses. The unreasonableness was to focus on the symptoms and
not on their effects and related real world impacts on the Applicant and her
employability. It misapprehended the record before it, which was a ground of
appeal the SST-AD acting reasonably ought to have recognized.
[60]
The reality is that between October 2004 and
June 2005, the situation changed from a medical report with some room for
optimism, albeit not much, in terms of the impact of the symptoms on the
Applicant’s employability, to a genuinely negative prognosis – a “poor” prognosis– regarding her employability. In my
respectful view, in dismissing the Pain Management Report, the SST-GD lost
sight of its very negative employability prognosis, which should have been at
the forefront of its analysis.
[61]
The SST-AD acted unreasonably in failing to
grant leave to appeal on this basis. It should have considered the SST-GD’s
unreasonable disregard of the medical prognoses in assessing whether there was
no reasonable chance of success on appeal. In my view, the Applicant had
an arguable ground upon which her proposed appeal might succeed: had leave
been granted her appeal had a reasonable chance of success.
[62]
The Respondent argues that neither the Pain
Management Report nor that of the psychiatrist speaks of the Applicant’s
condition at the time of her MQP. The Respondent thereby suggests the new
diagnoses and related prognoses were not in existence at the time of her MQP
but arose later. I do not accept that argument. The implication of the
Respondent’s argument is that chronic pain syndrome/fibromyalgia and mood
disorder/chronic depression occur almost overnight; but there is no evidence to
support that contention. Instead, the record is just the opposite: another
report filed, that of Dr. Leung, relates the Applicant’s chronic pain syndrome
as far back as 2002.
[63]
To the very considerable extent the Respondent
relies on guarded and qualified statements in Dr. Plotnick’s October 2004, such
reliance is misplaced. As I stated earlier, the report was an interim
assessment. Its major recommendation was that the Applicant should be properly
assessed and properly treated which had not yet happened at the time the report
was prepared.
[64]
For the foregoing reasons, it is my view the
SST-GD made its decision without regard for the material before it, thereby
committing an error per paragraph 58(1)(c) of DESDA and further, the
SST-AD did not act reasonably in refusing leave in light of that error.
E.
Failure to correctly apply Villani – DESDA paragraph
58(1)(b)
[65]
The failure of the SST-GD to correctly apply the
definition of “severe,” as determined by the
Federal Court of Appeal in Villani, is an additional ground of leave in
respect of which the Applicant had a reasonable chance of success.
[66]
In Villani, the Federal Court of Appeal
set out guiding principles for the interpretation of the CPP Act’s
disability provisions. Unlike other pension plans, the CPP Act does not
require total disability, i.e., an inability to do all or any kind of work, as
a precondition of disability benefits. The Federal Court of Appeal stated:
[38] This analysis of
subparagraph 42(2)(a)(i) strongly suggests a legislative intention to apply the
severity requirement in a “real world” context. Requiring that an
applicant be incapable regularly of pursuing any substantially
gainful occupation is quite different from requiring that an applicant be
incapable at all times of pursuing any conceivable
occupation. Each word in the subparagraph must be given meaning and when
read in that way the subparagraph indicates, in my opinion, that Parliament
viewed as severe any disability which renders an applicant incapable of
pursuing with consistent frequency any truly remunerative occupation. In
my view, it follows from this that the hypothetical occupations which a
decision-maker must consider cannot be divorced from the particular
circumstances of the applicant, such as age, education level, language
proficiency and past work and life experience.
[39] I agree with the
conclusion in Barlow, supra and the reasons therefor. The analysis
undertaken by the Board in that case was brief and sound. It demonstrates
that, on the plain meaning of the words in subparagraph 42(2)(a)(i), Parliament
must have intended that the legal test for severity be applied with some degree
of reference to the “real world”. It is difficult to understand what
purpose the legislation would serve if it provided that disability benefits
should be paid only to those applicants who were incapable of pursuing any
conceivable form of occupation no matter how irregular, ungainful or
insubstantial. Such an approach would defeat the obvious objectives of
the Plan and result in an analysis that is not supportable on the plain
language of the statute.
[emphasis
added]
[67]
Notwithstanding this direction, the SST-GD, in
my respectful view, adopted the very approach rejected in Villani in
seemingly requiring the Applicant to establish that her newly diagnosed
conditions and related prognoses and impacts, “would
have prevented her from all work” [emphasis added]:
Therefore, the Tribunal finds that there is
no evidence to suggest that between July 14, 2004 and December 31, 2004, the
Appellant suffered from any new condition, which would have prevented her
from all work. [emphasis added]
[68]
Since this issue was not argued by the parties,
I will not say more in this respect except to add that in Villani, the
Federal Court of Appeal granted judicial review because the tribunal adopted a
similar “strict abstract approach to the severity
requirement”:
[43] But this is precisely what the Board
has done in the present case. The Board has adopted the strict abstract
approach to the severity requirement in subparagraph 42(2)(a)(i) without
analysing all of the legislative language. For ease of reference, the
Board’s analysis of the severity definition in subparagraph 42(2)(a)(i) is
repeated below (See page 10 of the decision):
It is very important to note that the
words “regularly pursuing any substantially gainful occupation...” means
just that: any occupation. It is not, as some insurance policies
say, “...any occupation for which the applicant is reasonably suited...”
It is any occupation, even though the applicant may lack education,
special skills, or basic language.
A second factor is availability of
work. This is not a matter that is or can be considered by this
Board. So the state of the local job market is irrelevant: It is legally
assumed that work is available to do. [emphasis in original]
It is evident, to my mind, that the Board in
this case has effectively read out of the severity definition the words
“regularly”, “substantially” and “gainful”. In this way, the Board has
reduced the legal test to the following: is the applicant incapable of pursuing
any occupation? This approximates the “total” disability test eschewed by
the drafters of the Plan. Indeed, the Board’s repeated emphasis on
the word “any” appears to have been a contributing factor in its
misinterpretation of the statutory test for severity.
[44] In my respectful view, the Board has
invoked the wrong legal test for disability insofar as it relates to the
requirement that such disability must be “severe”. The proper test for
severity is the one that treats each word in the definition as contributing
something to the statutory requirement. Those words, read together,
suggest that the severity test involves an aspect of employability.
[69]
In this respect, the SST-GD’s approach was
contrary to settled law and thus I conclude the SST-AD acted unreasonably in
not granting leave, as the failure to properly apply Villani presents
another ground upon which the Applicant’s appeal had a reasonable prospect or chance
of success under paragraph 58(1)(b) of DESDA.
VIII. Conclusions
[70]
For the reasons set out above, I have concluded
that the decision of the SST-AD does not fall within the within the range of
possible, acceptable outcomes, which are defensible in respect of the facts and
law applicable in this case. Judicial review is therefore granted.
IX.
Costs
[71]
The Respondent has not asked for costs, nor has
the Applicant, and in the circumstances each party shall bear their own costs.
X.
Procedural Note – Style of Cause
[72]
The Respondent correctly requests that the style
of cause in this matter be amended to show the respondent as the Attorney
General of Canada. The Applicant consents and therefore it is so ordered,
effective immediately.
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