J. A. v. Minister of Employment and Social Development

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Institution:
Social Security Tribunal decision - Appeal Division
Member:
Jennifer Cleversey-Moffitt
Hearing date:
N/A
Hearing type:
On the record
Between:
J. A. and Minister of Employment and Social Development
Decision:
Appeal dismissed
Decision date:
April 13, 2018
Reference number:
AD-16-1110
Citation:
J. A. v. Minister of Employment and Social Development, 2018 SST 415

Other decision(s) related to this appeal:

Decision and Reasons

Decision

[1] The appeal is dismissed.

Overview

[2] The Respondent, the Minister of Employment and Social Development, denied the Appellant’s application for disability benefits initially and upon reconsideration. The Appellant appealed to the Tribunal’s General Division. The General Division determined, based on the evidence, that the Appellant did not have a severe and prolonged disability as of his minimum qualifying period (MQP) date of December 31, 2011, or at a possible prorated date of April 2012.Footnote 1

[3] The Appellant requested leave to appeal the General Division decision, and in a decision dated November 27, 2017, the Appeal Division granted leave to appeal.

[4] The Appellant submits that his chronic depression, anxiety disorder, attention deficit hyperactivity disorder (ADHD), and central auditory processing disorder (CAPD) prevent him from working. He contends that he is disabled within the meaning of the Canada Pension Plan (CPP).

[5] For the reasons outlined below, the appeal is dismissed.

Issues

[6] The issues before me are as follows:

Issue 1: Did the General Division base its decision on an erroneous finding of fact when it determined that the Appellant was “successful in becoming employed” in the years after 2010?

Issue 2: Did the General Division base its decision on an erroneous finding of fact when it determined that the Appellant’s daily living activities, including childcare and housework, were akin to light work?

Issue 3: Did the General Division base its decision on an erroneous finding of fact when it determined that the Appellant had “extended his education in recent years”?

Issue 4: Did the General Division base its decision on an erroneous finding of fact by failing to refer to the Appellant’s psychiatric and psychological treatments?

Issue 5: Did the General Division base its decision on an erroneous finding of fact by failing to properly assess the medical evidence provided by both Dr. Malempati and Dr. Moriarty?

Issue 6: Did the General Division base its decision on an erroneous finding of fact by placing too much weight on the questionnaire completed by Bonduelle Ontario Inc., the Appellant’s former employer?

Issue 7: Did the General Division err in law by failing to apply the test in Canada (Attorney General) v. O’Keefe, 2016 FC 503?

Analysis

[7] The General Division is the trier of fact and an administrative tribunal is presumed to have considered all of the evidence before it. The Appeal Division’s role is not to reassess the evidence, but to determine whether the General Division decision is defensible on the facts and the law.Footnote 2

[8] In determining whether there has been an error, the degree of deference afforded to the General Division is determined by the wording of the enabling legislation.

[9] In Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, the Federal Court of Appeal held that administrative tribunals should not use standards of review that were designed for appellate courts. Instead, they must look to the words used in the legislation.

[10] According to s. 58(1) of the Department of Employment and Social Development Act (DESDA), the only grounds of appeal are the following:

  1. a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
  2. b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
  3. 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.

[11] For the purposes of determining whether there is an error of law or a breach of natural justice, Huruglica would suggest the words show that Parliament intended no deference to be owed to the General Division. However, with regard to questions of fact, the test contains specific language to guide the Appeal Division—“made in a perverse or capricious manner or without regard for the material before it.” This would suggest that the Appeal Division is to intervene only when the error is quite severe or at odds with the record.

Issue 1: Did the General Division base its decision on an erroneous finding of fact when it determined that the Appellant was “successful in becoming employed” in the years after 2010?

[12] The General Division appropriately considered the Appellant’s employment history and therefore, the decision was not based on an erroneous finding of fact.

[13] The Appellant submits that his last successful employment was in 2010. The General Division noted that the Appellant had attempted other work after the December 31, 2011, expiry of his MQP, and even after the possible prorated date of April 2012. The Respondent submits that there is considerable evidence on file that the Appellant continued to work past the expiry of the MQP (and past the possible prorated MQP date). In paragraph 11 of the General Division decision, the member notes the Appellant’s employment history. This paragraph reads:

He detailed his recent work over a history of 16 years. He has been a security guard. He has had labour jobs including the refueling of ships and farm work. He has been a retail store worker. He worked as a house manager at X [sic] as a shift supervisor from October 2006 to September, 2007 providing day counselling and supervision. He did seasonal work at the X (8 hours a day, 40 hours per week) from November 10, 2008 to July, 2009; he worked as a Supervisor in Future Shop (retail) from July 1, 2012 to August 1, 2012; Bonduello General Labour from August 1, 2012 to August 30, 2012 and his last job at Target (retail) from November 4, 2012 to January 12, 2013. He has had no trouble in applying for and getting employment. He has had trouble in keeping jobs. He explained this by saying he had a “hard time in tracking people”. Since late in 2011, he has been sharing difficult and sensitive information with his psychologist but states that he wants to try to go back to work.

[14] After reviewing the Appellant’s employment history, I was unable to find where the General Division member had incorrectly considered the employment history in the decision. The Appellant had worked after the expiry of the MQP (and the possible prorated MQP date).

[15] As well, the Respondent submitted that the Appellant was unable to show that his inability to obtain and maintain employment was due to a health condition prior to the expiry of his MQP (or even the possible prorated MQP date).Footnote 3 In the questionnaire dated January 9, 2014, in support of his claim, the Appellant noted that he was unable to work because of his medical condition as of September 2012—again, well after the two possible MQP dates.Footnote 4

[16] Although Dr. Moriarty suggested that he had lost jobs because of anxiety, the employer questionnaires did not identify this as the reason for work stoppage. In fact, the only questionnaire that commented on the Appellant’s work stoppage noted that he had stopped working because “he did not want to work any longer.”Footnote 5

[17] The Appellant’s application for a CPP disability pension was received on January 9, 2014, well after the MQP date of December 2011 and the possible prorated date of April 2012. As was noted throughout the file and in the General Division decision, at the time of the application, the Appellant was working seasonally for five hours a day, three days per week at Target. The General Division determined that this showed the Appellant’s capacity to work.

[18] The General Division’s role is to act as the primary trier of fact. The Appeal Division’s role is not to re-adjudicate the file.Footnote 6 While the Appellant may disagree with the assessment of the evidence, I was unable to find that the General Division based its decision on an erroneous finding of fact.

Issue 2: Did the General Division base its decision on an erroneous finding of fact when it determined that the Appellant’s daily living activities, including childcare and housework, were akin to light work?

[19] The General Division considered the Appellant’s daily living activities and noted that he had carried out childcare and housework activities after the expiry of the MQP (including the possible prorated MQP date); therefore, the decision was not based on an erroneous finding of fact.

[20] Although the Appellant argues in his submissions that there is evidence that he was unable to carry out the childcare responsibilities, what the submissions fail to account for is the timeline of events with respect to the Appellant’s MQP. The Appellant’s first child was born in April 2012, which is the month of the possible prorated MQP date. In paragraph 15 of the General Division decision, the member wrote:

K. L., wife of the Appellant, wrote on March 24, 2015 that from the time her husband was a teenager he has been dealing with depression on his own and in May 2013 he finally got a diagnosis of Bipolar with severe depression. He started medication treatment with Dr. Malempati. In July and August of 2012 he was hired at two different jobs. Both did not work out due to having high anxiety. After having the first child in April 2012, she went back to work in November 2012. The Appellant: “is a great dad, but I know he has struggles with even daily tasks, so I received help from my family and daycare to assist in taking care of my daughter. There were times over from November 2012 to June 2013 I stayed home from work because he was so down”.

[21] The General Division further noted in paragraph 30 of the decision, “The Appellant himself gave evidence of activities of daily living which superficially at least seemed quite normal well after his MQP. These included interaction and help provided to his children and work around the house and going to school.”

[22] In paragraph 34, the General Division member found that although the Appellant may have needed help with childcare, no one had raised the issue of concern for the wellbeing of the children. This paragraphs reads:

[…]. There is no evidence that there were any concerns for the wellbeing of this child, while in his care. The demands of childcare, on a regular basis, is not unlike light work and can be demanding. This does not demonstrate he had a severe condition that would preclude all types of suitable work. It is true that almost a year after his MQP, his wife stated in her letter that she would come home from work to relieve him but that does not demonstrate a total lack of work capacity.

[23] Finally, the General Division member notes when the Appellant’s wife started to feel as though she needed to assist with the care of the child. In paragraph 36, the member notes:

The evidence of the wife is cogent. She states that between November 2012 and June 2013 she stayed home to assist with the care of their child. This was after the MQP. (my emphasis added)

[24] Nowhere in the General Division decision is there an error in the facts related to childcare and daily activities. Much of the evidence on file and the Appellant’s wife’s oral evidence shows that the Appellant’s health deteriorated after the expiry of the MQP. The evidence provided shows that prior to the expiry of the MQP, the Appellant was carrying out these tasks.

[25] Again, it needs to be stated that the General Division’s role is to act as the primary trier of fact. The Appeal Division’s role is not to re-adjudicate the file. It appears from the evidence provided that the Appellant was attempting childcare but came to need help only after the expiry of the MQP (including after the expiry of the possible prorated MQP). As well, if there is any information with respect to a decline in the Appellant’s ability to perform daily activities, the evidence also suggests this occurred after the expiry of the MQP. I was unable to find that the General Division member based its decision on an erroneous finding of fact.

Issue 3: Did the General Division base its decision on an erroneous finding of fact when it determined that the Appellant had “extended his education in recent years”?

[26] The General Division’s conclusion that the Appellant had “extended his education in recent years” is a reasonable conclusion, given the evidence presented to the General Division. The decision was not based on an erroneous finding of fact.

[27] In paragraph 27 of the General Division decision, the member states that the Appellant has “extended his education in recent years.” This conclusion was drawn from evidence that the Appellant had attended educational courses leading up to and subsequent to the expiry of the MQP (including the possible prorated MQP date). At paragraph 10 of the General Division decision, the member notes:

During the year leading up to his MQP, the Appellant attended X Collage [sic]. He passes 6 courses and failed one. In 2012, he started and passed a business law program (the year following his MQP).

[28] Additionally, the General Division member notes at paragraph 36 that the Appellant’s transcript from X College shows that he earned 12 out of 13 credits. The time period over which the courses were taken—from 2011 to the winter of 2012—extended beyond the expiry of the MQP.

[29] The Appellant argues in his submissions that although he signed up for courses, he had difficulty completing them and that this “lack of academic success” is a clear indicator that his disability is severe and prolonged. Based on a review of the General Division decision, it is evident that the academic information was transcribed without error. It clearly shows academic achievement occurring after the expiry of the MQP. The Appellant successfully earned 12 out of the 13 credits he took.

[30] The General Division committed no error in relaying the academic information, and the assessment that the Appellant had “extended his education in recent years” is not an unreasonable conclusion based on the evidence provided. There was academic achievement after the expiry of the MQP.

[31] I am unable to find that the General Division based its decision on an erroneous finding of fact.

Issue 4: Did the General Division base its decision on an erroneous finding of fact by failing to refer to the Appellant’s psychiatric and psychological treatments?

[32] The Appellant notes in his submissions that the General Division decision did not comment on the following:

[33] In paragraph 14 of the General Division decision, the member notes ADHD, CAPD, chronic depression, anxiety disorder, and Type 2 diabetes. In paragraphs 15 and 16, the member notes that the Appellant was diagnosed with bipolar disorder and severe depression in May 2013. Although the Appellant’s wife provided oral evidence at the hearing that the Appellant had had depression since he was a teenager, the medical evidence on file notes the diagnosis date as May 2013. This diagnosis also led Dr. Malempati to prescribe the Appellant Zyprexa and Wellbutrin at that time.Footnote 7

[34] Paragraphs 18 and 35 of the General Division decision discuss the Appellant’s anxiety and the effect of this condition on his ability to complete daily living activities. In paragraph 35, the member notes that it appears that the Appellant’s condition declined after the expiry of the MQP.

[35] Although it appears that the Appellant has health conditions, it is the capacity to work, not the diagnosis that determines severity.Footnote 8 The General Division determined, based on the evidence before it, that there was capacity to work. The General Division did consider the psychiatric and psychological treatments and analyzed this evidence in the context of determining severity. Additionally, the courts have addressed this issue in other cases where it has been alleged that administrative tribunals failed to consider all of the evidence. In Simpson v. Canada (Attorney General),2012 FCA 82, the appellant’s counsel identified a number of medical reports that she said the Pension Appeals Board ignored, attached too much weight to, misunderstood, or misinterpreted. In dismissing the application for judicial review, the Federal Court of Appeal held that:

[…] assigning weight to evidence, whether oral or written, is the province of the trier of fact. Accordingly, a court hearing an appeal or an application for judicial review may not normally substitute its view of the probative value of evidence for that of the tribunal that made the impugned finding of fact.

[36] The thrust of the Appellant’s submissions is that I reconsider and reassess selected documentary evidence and decide in his favour. I am unable to do this, as my authority permits me to determine only whether any of the Appellant’s reasons for appealing fall within the grounds enumerated in s. 58(1). The General Division did not base its decision on an erroneous finding of fact on this issue.

Issue 5: Did the General Division base its decision on an erroneous finding of fact by failing to properly assess the medical evidence provided by Drs. Malempati and Moriarty?

[37] Leave to appeal was granted on the basis that the General Division may have erroneously determined that Dr. Moriarty was unable to comment on the Appellant’s condition prior to 2011 when, in fact, she had been treating the Appellant since September 2010. The appeal is dismissed on this issue since the General Division did not base 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.

[38] The Appellant argues that the June 2014 report was not assessed properly. In support of this argument, he submits that Dr. Moriarty was the treating clinical psychologist beginning in September 2010—a time well before the MQP. Additionally, his submissions reference where the June 2014 report outlines symptoms and where Dr. Moriarty comments on the Appellant’s prognosis going forward.  In that report, Dr. Moriarty wrote:

Due to the severity of his illness however, despite his best efforts, his day-to-day functioning is severely impaired which has resulted in his being limited in the tasks he can manage in his daily life. [The Appellant] has not been able to successfully pursue and complete educational goals or maintain employment because of his illness, and it does not appear [the Appellant]’s circumstances will change in the foreseeable future.Footnote 9

[39] The General Division did comment on the June 2014 report; at paragraph 40 of the decision, the member states:

Dr. Moriarty has been treating him since before the MQP. Regrettably, her June 2014 report which attempts to retrospectively account for a disability based on his inability regularly to seek employment does not provide an insight into his actual condition as of December 2011.

[40] The Appellant argues in his submissions that the General Division’s mention of the June 2014 report neglects to reference the fact that treatment began in September 2010 and that it also fails to mention the psychologist’s commentary on his prognosis.

[41] As was noted in the leave to appeal decision, there is a chance that this report was not considered appropriately, as the General Division noted the report’s inability to speak to the Appellant’s condition as of December 2011 with no mention of treatment prior to that date, despite evidence that Dr. Moriarty had been treating the Appellant as early as September 2010. The psychologist had information on the Appellant’s health condition prior to the MQP and made comments on his health going forward.

[42] The Respondent submits that the General Division did properly consider the evidence of Dr. Moriarty’s June 2014 letter. In support of this, the Respondent notes that in paragraph 9 of the General Division decision, the member acknowledges that Dr. Moriarty began seeing the Appellant, along with his wife, in couple’s therapy in 2010. The Respondent argues that this shows that the General Division was aware of the span of Dr. Moriarty’s treatment.

[43] Additionally, the Respondent submits that paragraph 40 of the General Division decision shows the Appellant’s success at college in 2011 and 2012, and his ability to obtain and maintain employment. I agree. This paragraph speaks to the Appellant’s health and his success at college. For clarity, the entire paragraph reads:

Dr. Moriarty has been treating him since before the MQP. Regrettably, her June 2014 report which attempts to retrospectively account for a disability based on his inability regularly to seek employment does not provide an insight into his actual condition as of December 2011. There are no intervening reports or observations of functionality in those critical months leading up to his MQP or commenting on his relative success at Collage in 20011 [sic] and 2012. Indeed, his several applications for work in 2011, 2012 and 2013 suggest that he had the capacity to meet the test of being able regularly of seeking employment after his MQP.

[44] Although Dr. Moriarty was treating the Appellant in 2010, paragraph 40 specifically says that the June 2014 report does not provide insight as of December 2011, which is the MQP date. Paragraph 40 analyzes the June 2014 report in an effort to determine whether there is medical evidence concerning his condition during a specific period of time. The paragraph does not say that there is no evidence; rather, it says that the June 2014 report does not provide time-specific information on the Appellant’s condition. Additionally, I do not agree that this comment was made in a “perverse or capricious manner or without regard for the material before it.” Paragraph 40 merely states that there is an absence of medical evidence leading up to the MQP.

[45] With respect to Dr. Malempati’s medical opinion, the General Division member also commented on the lack of information with respect to the specific time period around the MQP. In paragraph 30 of the General Division decision, the member notes that Dr. Malempati began treating the Appellant only in May 2013, yet commented on the Appellant’s condition in 2011. The General Division member noted that this assertion was given less weight because Dr. Malempati was not treating the Appellant at that time. Evidence relating to an Applicant’s condition around the MQP is important. Paragraph 31 of the General Division decision states that Dr. Malempati’s notes span July 2013 to September 2015, a period after the expiry of the Appellant’s MQP. The General Division relied on other evidence to determine the Appellant’s condition around the time of the MQP.

[46] The General Division did not make an erroneous finding of fact on this issue. It is for the General Division to receive all of the oral and written evidence from the parties, to assign weight to the evidence, and to make a decision based on the law and the facts. The General Division did this. I am satisfied that the General Division did not overlook this evidence or misconstrue it.

Issue 6: Did the General Division base its decision on an erroneous finding of fact by placing too much weight on the questionnaire completed by Bonduelle Ontario Inc., the Appellant’s former employer?

[47] The Appellant worked for Bonduelle Ontario Inc. from September 17, 2012, until October 3, 2012. An employer questionnaire requested from Service Canada was received on October 3, 2014. In this questionnaire, a representative for the employer answered the questions and stated that the Appellant had stopped working with the company because, “He said he did not want to work here any longer.” Additionally, the questionnaire asked for any other information that would be helpful. The representative for the company responded, “He did not want to work any longer.”Footnote 10

[48] In his submissions, the Appellant argues that too much weight was placed on this questionnaire. As the Federal Court held in Hussein v. Canada (Attorney General), the “weighing and assessment of evidence lies at the heart of the [General Division]’s mandate and jurisdiction. Its decisions are entitled to significant deference.” Furthermore, as discussed above, the issue of the weight to be ascribed to evidence does not fall within any of the grounds of appeal enumerated under s. 58(1) of the DESDA. The Federal Court of Appeal has declined to interfere with a decision-maker’s assignment of weight to the evidence, holding that such an exercise is “the province of the trier of fact.”Footnote 11

[49] The General Division did not base its decision on an erroneous finding of fact on this issue. The questionnaire provided information with respect to the Appellant’s work history and reasons for not working. This information was not overlooked or misconstrued.

Issue 7: Did the General Division err in law by failing to apply the test in Canada (Attorney General) v. O’Keefe, 2016 FC 503?

[50] The General Division noted in paragraph 25 of its decision that O’Keefe instructs the Tribunal that:

[…] the onus in these cases of disability benefit application clearly requires that the claimant be disabled prior to the MQP. An explanation is necessary as to what basis there is for believing a disability existed. There is a correlative requirement to identify any evidence of disability prior to the MQP. The Tribunal must be satisfied that the disabling condition that prevailed in the Appellant at the time of his MQP continues.

[51] The Appellant’s submissions offer no details as to where the General Division erred. Instead, after asserting that the test in O’Keefe was not used, the submissions state, “The Appellant submits that, on the cogent evidence of the Doctors and lay witnesses, he was disabled prior to the MQP.”

[52] Without the Appellant guiding me or providing analysis as to how the test was not applied, I cannot see where there was an error of law in failing to apply O’Keefe. The General Division cited O’Keefe as authority for the need to substantiate through the evidence that the disabling condition occurred prior to the MQP. I fail to see where there was an error of law.

Conclusion

[53] The appeal is dismissed.

 

Method of proceeding:

Parties:

On the record

J. A., Appellant

Minister of Employment and Social Development, Respondent

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