Docket:
A-57-13
Citation: 2013 FCA 259
CORAM:
BLAIS C.J.
DAWSON J.A.
O’REILLY J.A. (ex
officio)
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BETWEEN:
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HANIFE DAUTI
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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Heard
at Edmonton, Alberta, on September
30, 2013.
Judgment
delivered at Ottawa, Ontario,
on November 12, 2013.
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY: BLAIS
C.J.
O’REILLY J.A. (ex officio)
Docket:
A-57-13
Citation: 2013 FCA 259
CORAM:
BLAIS C.J.
DAWSON J.A.
O’REILLY J.A. (ex
officio)
|
|
|
BETWEEN:
|
|
HANIFE DAUTI
|
|
Applicant
|
|
and
|
|
ATTORNEY GENERAL OF CANADA
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|
Respondent
|
REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
This is an application for judicial review of the decision of the
Pension Appeals Board rendered in file number CP28003. The Board found that Mrs.
Dauti, the applicant, was not disabled within the meaning of subsection 42(2)
of the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2]
For the reasons that follow, I have concluded that the Board’s decision
is unreasonable. In the result I would allow the application for judicial
review, set aside the decision of the Board and remit Mrs. Dauti’s claim to the
Board, or its designate, for redetermination by a differently constituted
panel.
[3]
Mrs. Dauti suffered injuries in two separate workplace accidents that
led her to claim disability benefits. In the first accident she suffered
physical injuries, including injuries to her right knee, back and ribs. In the
second accident, while disposing of hazardous waste materials she suffered an acute
onset of dizziness, fatigue and lightheadedness, followed by a fall. This is known
as a syncope episode. Thereafter, Mrs. Dauti continued to suffer such episodes.
[4]
At paragraph 17 of its reasons, the Board correctly set out the question
it was required to determine:
[…] whether or not
the Appellant became so disabled by either her physical injuries which
occurred while working at the chemical plant or by the other group of what
appeared to be physiological or neurological symptoms that led to
fainting spells and syncope episodes which included hypertension and which she
claimed resulted in headaches, dizziness, insomnia, depression and lack of
energy and other similarly related symptoms; or a combination of both
aspects of her claim that she is disabled as the term is defined. [emphasis
added]
[5]
The Board then commenced its analysis of the evidence, concluding that
the physical injuries Mrs. Dauti suffered had been “sufficiently if not
entirely resolved” prior to her minimum qualifying period (December 31, 2009).
This conclusion was based upon the Board’s finding that such injuries were not
referred to in medical reports after February 2008. In fact, in a report dated
January 7, 2010, Mrs. Dauti’s family doctor referred to her ongoing joint and
muscle pain (page 206 of the respondent’s record). This report contradicted the
Board’s finding that Mrs. Dauti’s physical injuries were not referred to in
reports subsequent to February 2008.
[6]
The Board then turned to consider Mrs. Dauti’s psychological or
neurological symptoms. The Board referred to a report dated January 7, 2008 said
to be from Mrs. Dauti’s family doctor which stated that she could do sedentary
limited work at that time. It also referenced a report prepared in January
2008, by a doctor of internal medicine which according to the Board stated Mrs. Dauti
could do “sedentary limited work of modified type”. The Board ultimately found
the fainting spells and syncope episodes did not prevent Mrs. Dauti from
pursuing “regular gainful employment most of the time”.
[7]
The difficulty with this conclusion is twofold. First, the Board
misapprehended the evidence. No physician ever provided an opinion which stated
that Mrs. Dauti was capable of doing sedentary or limited work. The January 7,
2008 report referenced by the Board was not from Mrs. Dauti’s family doctor.
Rather, it was from a physiotherapist who was not treating Mrs. Dauti for her
syncope episodes. Further, the report of the doctor of internal medicine said
nothing of Mrs. Dauti’s capacity to work. It is difficult to assess the impact
of these errors on the Board’s decision.
[8]
The second difficulty is the Board’s conclusion that Mrs. Dauti was not
disabled was reached without consideration of the combined effect of the
physical and psychological / neurological symptoms. This resulted from the
Board’s erroneous conclusion that the physical injuries had resolved prior to
the minimum qualifying period. The failure to consider the combined effect of Mrs.
Dauti’s injuries was an error that rendered the Board’s decision unreasonable.
[9]
Accordingly, I would allow the application for judicial review, set
aside the decision of the Board and remit Mrs. Dauti’s claim to the Board, or
its designate, to be redetermined by a differently constituted panel.
“Eleanor R. Dawson”
“I agree.
Pierre Blais C.J.”
“I agree.
James W. O’Reilly J.A. (ex
officio)”
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