Peters v. Canada (Minister of Human Resources Development), docket A-865-97

Date: 20000511 Docket: A-865-97

PRESENT:        THE CHIEF JUSTICE LINDEN J. A. ROBERTSON J. A.

BETWEEN:                                        THERESA M. PETERS

Applicant

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THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA Respondent

Heard at Fredericton, New Brunswick, Thursday, May 11, 2000

Judgment delivered at Fredericton, New Brunswick, Thursday, May 11, 2000

REASONS FOR JUDGMENT BY:                                                                  THE CHIEF JUSTICE

Date: 20000511 Docket: A-865-97

CORAM:          THE CHIEF JUSTICE LINDEN J.A. ROBERTSON J.A.

BETWEEN:

THERESA M. PETERS

Applicant

THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA

Respondent

REASONS FOR JUDGMENT (Delivered from the Bench at Fredericton, New Brunswick on Thursday, May 11, 2000)

[1]         This is an application for judicial review under section 28 of the Federal Court Act, to

review and set aside, a decision of the Pension Appeals Board dated October 30, 1997 which held that the applicant was not disabled pursuant to the Canada Pension Plan, (the "Plan").

[2]      The Pension Appeals Board dismissed the appeal on the basis that the applicant failed to prove that her disability was severe as defined in the Plan.

[3]      The Board had before it a number of medical reports and based its decision on these reports.

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Page: 2

[4]         The issue before this Court is whether the Board made a palpable and overriding error which affected its assessment of the facts.

[5]         Applying this test to the present case, we have concluded that the Board made the following errors in reaching its decision.

[6]         In its decision, the Board found "It is interesting and significant that all these medical

reports do not identify a functional incapacity or impairment."

[7]         However, the records discloses that Dr. Kay in a letter dated March 26, 1996 concluded that the applicant's condition was "severe and prolonged" and that she was "unable to tolerate even light office types of work".         He added that even the regular daily house work can bring on severe pain in her shoulder and neck area. He could not be certain when she would be able to go back to work.

[8]         In an earlier letter dated March 30, 1995, Dr. Kay stated that "Her functioning level is

very poor."

[9]            Finally, Dr. Kay's medical report in support of the applicant's claim states:          "She has

been unable to do any work since the car accident in 1988.     She is living with pain everyday. "

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[10]       In its decision, the Board stated that there was no evidence that surgery was undertaken

for the shoulder.

[11]       However, the record discloses that the applicant underwent a left shoulder acromioplasty and decompression of the rotator cuff in 1992. In 1995 she was placed under general anesthesia

for arthroscopy of the left shoulder.           The surgeon reported the applicant had a very large

shoulder capsule and was unlikely to be helped with further surgery.

[12]       In its decision, the Board found that the applicant had a soft tissue injury after a motor vehicle accident in 1988.

[13]       While the early report from her family doctor could indicate a soft tissue injury, the subsequent medical reports identify the condition as a large shoulder capsule with multidirectional instability.

[14]       We have reached the conclusion, based on the examination of the record before the Board and the issue it was called upon to determine that these palpable and overriding errors could reasonably be considered to have affected the Board's assessment of the facts and, therefore, it's ultimate decision.

[15]       The decision of the Board will be quashed and the matter remitted for a new hearing.

[16]       Costs will be awarded to the applicant.

John D. Richard

C.J.

FEDERAL COURT OF CANADA APPEAL DIVISION NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:                                       A-865-97

STYLE OF CAUSE:                 THERESA M. PETERS

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THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA