Date: 20030918
Docket: A-493-02
Citation: 2003 FCA 343
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
HELGA COCHRAN
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
Heard at Vancouver, British Columbia on September 17, 2003.
Judgment delivered at Vancouver, British Columbia on September 18, 2003.
REASONS FOR JUDGMENT BY: LINDEN J.A.
CONCURRED IN BY: ROTHSTEIN, SEXTON J.J.A.
Date: 20030918
Docket: A-493-02
Citation: 2003 FCA 343
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
SEXTON J.A.
BETWEEN:
HELGA COCHRAN
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT
LINDEN J.A.
[1] This is an application for judicial review, seeking review of a decision of the Pension Appeals Board dated May 8, 2002, which found that the applicant, Helga Cochran, was not entitled to a disability pension under the Canada Pension Plan (the "Plan"), as she was unable to prove that, as of December 31, 1996, her disability was severe and prolonged , as required by section 42(2).
[2] The applicant was employed as a fish validator and was required to board fishing boats in order to inspect the catch. While doing so, on July 7, 1995, she fell and suffered injuries to her lower spine and left sacroiliac areas. Her claim for disability pension was denied and her appeal to the Review Tribunal was also dismissed.
[3] The applicant appealed to the Board which held a hearing de novo in January 2002. Based primarily on the evidence of Dr. Yin, the Board concluded that surgical intervention conducted by Dr. Yin had cured the pain the applicant was feeling in her lumbar area. The Board suggested that the applicant adjourn her appeal until the impact of Dr. Yin's continuing treatment of her left sacroiliac pain problem was known, but she chose to proceed with the hearing. On the evidence before it, the Board dismissed the appeal, finding it was unable to determine at that time whether the applicant's pain would be either severe or prolonged after Dr. Yin's treatment was concluded. The majority stated:
...Accordingly, in while the Appellant's continuing problems seem prolonged, we are not persuaded that they are severe since she is still under Dr. Yin's treatment, in which he has resolved the lumbar pain, and is still treating the sacroiliac pain.
The evidence which we have to date does not suggest that after Dr. Yin's treatment for her sacroiliac troubles is concluded, or that the Appellant will then be "disabled" in that her pain will be "severe" and "prolonged". We just do not know.
[4] Mr. Justice Smith wrote concurring reasons in which he relied, in addition, on the evidence of other medical specialists to conclude that the applicant was capable of returning to some type of sedentary work in December 1996. He wrote:
...I am not satisfied that such a finding is sufficient to prove she was suffering from a "severe and prolonged" disability at that time. The apparent consensus of the specialists was that she could return to some type of sedentary work. I conclude that the Appellant has not establish [sic] that she suffered from a "severe and prolonged" disability by December 31, 1996.
[5] The applicant argues, in person, that the Board did not properly realize the severity of her injury as reflected in Dr. Yin's reports. She submits that early diagnostic tests were improperly performed and resulted in substantial delays in obtaining a proper diagnosis. With regard to Justice Smith's concurring judgment, the applicant argues that he misinterpreted the expert reports and downplayed the severity of her condition in 1996. She complained that some of the medical reports that were prepared closer to the minimum qualifying dated were ignored by the Board.
[6] The respondent submits that the standard of review to be applied to the Board's application of the statutory test for severe and prolonged disability in s. 42(2) of the Plan to the facts before it is one of patent unreasonableness when what is being attacked is the Board's assessment and weighing of the evidence before it. The evidence showed that Dr. Yin had resolved the applicant's "primary symptoms" and that he was continuing to treat her "secondary issue" of sacroiliac pain. The respondent submits that by refusing the adjournment offered by the Board, Ms. Cochran was unable to satisfy her evidentiary burden of proving on a balance of probabilities that her disability was severe and prolonged because the eventual results of the treatment were unknown.
[7] In my view, the Board set out the correct legal test for a severe and prolonged disability in paragraph 19 of its reasons.
[8] In examining the evidence introduced, however, the Board made two errors that were patently unreasonable. First, the focus of the majority reasons was on the health of the applicant at the date of the hearing, rather than December 31, 1996. The Board quoted extensively from several letters of Dr. Yin, describing her recent progress as a result of his current treatment which was ongoing. The current health of the applicant is relevant, of course, but the main question is the condition of the applicant on December 31, 1996, which the majority does not expressly address.
[9] Second, the Board appears to have ignored significant evidence that would shed light on the applicant's condition on December 31, 1996. In a medical report dated December 10, 1997, a date nearer to the minimum qualifying period than those of Dr. Yin, Dr. Nemanishen, her family doctor, wrote that Ms. Cochran "will likely be permanently disabled for heavy work". A second letter by Dr. Nemanishen dated June 30, 1998 stated that "Helga is unable to perform any type of work on a regular basis". There was another letter from Dr. Nemanishen dated January 12, 2000, which concluded that "she continues to be unable to work in any profession".
[10] While there was hope that the work Dr. Yin undertook might relieve her problem, it was too soon to say whether it had as of the date of the hearing. The Board did quote from several reports of Dr. Yin, in particular his report dated July 14, 2001 to the effect that "she would be able to perform sedentary job classification requirements on a part-time basis, provided that she is able to change positions frequently". This is not inconsistent with the earlier reports it did not refer to.
[11] The application for judicial review will be allowed and the decision of the Board will be set aside and the matter will be remitted to the Board for a redetermination in accordance with these reasons.
(Sgd.) "Allen M. Linden"
J.A.
"I agree" (Sgd.) "Marshall Rothstein"
J.A.
"I agree" (Sgd.) "J. Edgar Sexton"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-493-02
STYLE OF CAUSE: Helga Cochran v. Attorney General of Canada
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: September 17, 2003
REASONS FOR JUDGMENT: LINDEN J.A.
CONCURRED IN BY: ROTHSTEIN, SEXTON J.J.A.
DATED: September 18, 2003
APPEARANCES:
SOLICITORS OF RECORD:
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