A. M. v. Minister of Employment and Social Development
- Social Security Tribunal decision - Appeal Division
- Janet Lew
- Hearing date:
- November 3, 2017
- Hearing type:
- A. M. and Minister of Employment and Social Development
- Appeal dismissed
- Decision date:
- December 1, 2017
- Reference number:
- A. M. v. Minister of Employment and Social Development, 2017 SSTADIS 700
Other decision(s) related to this appeal:
Reasons and decision
 The appeal is dismissed.
 The Appellant worked as a nurse in a supervisory position from 2010 until September 2012. She stopped working due to progressive right hip pain, which limited her ability to sit or stand for prolonged periods and walk for any distance, among other things.
 The Appellant has undergone various diagnostic and other investigations, and she has been regularly seeing an orthopaedic surgeon. She underwent a right hip arthroscopy in July 2014 and then a right hip arthrotomy in March 2015. There was some slight improvement following the most recent surgery, but the Appellant continued to experience pain in her groin and buttocks. Treatment recommendations at that time included physiotherapy, referral to a pain clinic and resuming Prednisone. The orthopaedic surgeon agreed with a return to work “in a limited fashion.” The Appellant requested that her employer provide medical accommodations. Her family physician informed the employer of the Appellant’s restrictions and stated that the Appellant “basically need[ed] a ‘desk job’” (GD7-10).
 The employer was unable to accommodate the Appellant. The Appellant did not seek alternative work, as it would have jeopardized her ongoing entitlement to long-term disability benefits from a private insurer.
 The Appellant applied for a Canada Pension Plan disability pension in January 2013, shortly after she had stopped working, but the Respondent refused her claim. The Appellant appealed the Respondent’s decision to the General Division, which, in turn, determined that the Appellant was ineligible for a disability pension under the Canada Pension Plan, as it found that her disability had not been severe by the end of her minimum qualifying period on December 31, 2015. (An appellant’s minimum qualifying period is the date by which he or she is required to be found disabled.) The General Division heard the matter in February 2016. The Appellant sought leave to appeal the General Division’s decision, on the basis that the General Division had failed to consider why she had not sought alternative work.
 I granted the Appellant’s application for leave to appeal the General Division’s decision, as I was satisfied that the Appellant had raised an arguable case that the General Division was required to assess the reasonableness of her explanation to seek alternative or modified work. I must now decide whether the General Division was required to do so. The parties agree that if I should determine that the General Division erred in this regard, I should assess the reasonableness of the Appellant’s explanation, rather than return the matter to the General Division for a redetermination altogether.
 The only issue before me is as follows: Was the General Division required to consider the reasonableness of the Appellant’s explanation for not seeking alternative or modified work?
 At paragraph 57, the General Division found that the Appellant had not attempted working, either part-time within her medical conditions and functional limitations in alternative work or returning to work with modified duties with her previous employer. The General Division found that the Appellant had failed to meet the test set out in InclimaFootnote 1 that, where there is capacity, she is required to show that efforts at obtaining and maintaining employment have been unsuccessful by reason of her health condition.
 In the hearing before the General Division, the Appellant testified that, after her most recent surgery in March 2015, her employer was unprepared to accommodate her. The General Division noted that the Appellant had testified that she was confident that she could work upwards of 16 hours per week if there was greater flexibility in her work schedule.
 The Appellant continues to hold out hope that her employer will accommodate her to enable her to work within her functional limitations. At paragraph 11, the General Division noted the Appellant’s opinion that she might be able to teach again at a college or work elsewhere, but that she still preferred to work with her employer.
 The Appellant explains that she did not seek alternative employment because, had she done so, she would have become disentitled to long-term disability benefits through her disability insurer, irrespective of whether she had failed in any attempt to return to work. This represented too great a risk at being exposed to severe financial hardship.
 The Appellant argues that there is jurisprudence that establishes that the General Division was required to consider the reasonableness of her explanation as to why she had not sought alternative employment.
 In M.C.,Footnote 2 the Pension Appeals Board expected applicants claiming disability under the Canada Pension Plan to show meaningful effort to find other employment to suit their skills and limitations, as well as to follow recommended treatment programs. Failing that, they were “obliged to provide reasonable explanations or be disentitled.” In M.C.’s case, he had not applied for another type of dispatching job or looked for any work that he could perform at home. The Pension Appeals Board determined that M.C. had failed to discharge his duty to show that he had undertaken any meaningful efforts to find other suitable employment.
 In H.W,Footnote 3 the applicant testified before a Canada Pension Plan Review Tribunal that she had made two attempts to find alternative work but that she had not considered returning to a job as a seamstress for fear that it would affect her asthma. The Review Tribunal had found that H.W. had failed to show meaningful effort to find other employable suitable to her skills and limitations. The Appeal Division found that it was open to the Review Tribunal to conclude that two attempts to find alternative work and a refusal to find work for which she was capable and which would not affect her medical conditions did not meet the test set out in M.C.
 The Respondent counters that these two decisions are factually distinguishable: M.C. had taken and passed a course for retraining purposes, and H.W. had made two attempts to find alternative work, albeit over a course of 14 months.
 The Respondent claims that, generally, it can be presumed that the General Division had in fact considered the Appellant’s explanation. However, the Respondent asserts that it was unnecessary for the General Division to undergo any analysis as to whether her explanation for failing to seek alternative work was reasonable.
 The Respondent asserts that an analysis was unnecessary in this case because the test set out in Inclima is mandatory, inflexible and does not provide for any allowances. The Respondent insists that the Appeal Division has no legal authority to waive the Inclima requirement when there is evidence of work capacity. The Respondent argues that the Appeal Division is not bound by decisions of the Pension Appeals Board or by its own decisions.
 The Appellant, on the other hand, contends that such a rigid interpretation would undermine the underlying purpose of the Canada Pension Plan. She argues that it would be contrary to the principles and the broad and remedial nature of the Canada Pension Plan to require her to show that she tried to seek other employment without exception, when she had a legitimate explanation otherwise.
 The Respondent referred me to Rice,Footnote 4 but in the course of oral submissions, it indicated that Rice was inapplicable. In fact, I find it of some assistance. Rice resided in a small community where the possibility of obtaining employment was remote. In his case, labour market conditions appeared to represent a reasonable explanation why it would be nearly impossible for Rice to obtain a substantially gainful occupation, i.e. he had failed to provide any evidence of employment efforts and possibilities.
 The Court’s analysis in Rice is instructive. The Court acknowledged that subparagraph 42(2)(a)(i) of the Canada Pension Plan, which defines a severe disability, should be given a generous construction, but it found that the definition of a severe disability still had to be contained in the language of that provision. The Court found that there was nothing in the language of the subparagraph to suggest that labour market conditions were relevant in a disability assessment.
 The Court considered the words of Isaac J.A. in Villani.Footnote 5 It found that the necessity of “evidence of employment efforts and possibilities” referred to the capacity of an individual to be employed in any substantially gainful occupation, and not to whether, in the context of the labour market, it was possible to get a job.
 According to Rice, Villani stipulates that one cannot dispense with the requirement to provide evidence of employment efforts and possibilities (and of course medical evidence too). This requirement is similar to the test set out in Inclima. Both impose a requirement on an appellant to provide evidence of employment efforts and possibilities, though Inclima extends the test and requires that an appellant also show that any unsuccessful efforts are because of his or her health condition.
 While I recognize the Appellant’s legitimate concerns that her insurer may terminate her long-term disability benefits if she seeks alternative employment, this fact cannot supersede the requirements set out in both Villani and Inclima. After all, the overriding consideration is whether the Appellant has the capacity regularly of pursuing any substantially gainful occupation. As the Respondent notes, the Appellant does not dispute the fact that she has such capacity. The fact that her insurer may terminate her long-term disability benefits is of no relevance to whether the Appellant can be found disabled under the Canada Pension Plan.
 The Appellant referred me to only M.C. and H.W. to support her position. The Pension Appeals Board did not fully consider the requirements set out in Villani, Inclima or Rice. It may also be that when it wrote that an applicant was required to provide reasonable explanations or be disentitled to a Canada Pension Plan disability pension, it intended to confine this requirement to an applicant’s obligation to follow recommended treatment programs. With the greatest of respect, I find myself unable to agree with the Pension Appeals Board that an applicant can provide a reasonable explanation outside medical concerns as to why he or she failed to show efforts at finding other employment.
 As for H.W., the Appeal Division in that case did not explicitly address the issue of whether H.W. could provide a reasonable explanation to account for her failure to show that efforts at obtaining and maintaining employment had been unsuccessful by reason of her health condition. It stated that H.W. had failed to meet the M.C. test, but it defined the M.C. test as one in which applicants are “expected to show meaningful effort to find other reemployment suitable to their skills and limitations.” The Appeal Division did not indicate whether an applicant was permitted to provide a reasonable explanation as to why he or she had failed to show efforts at obtaining employment.
 Where an appellant has capacity, the General Division is required to determine whether he or she has shown that efforts at seeking and obtaining employment have been unsuccessful because of that health condition. There is no basis to depart from this requirement when assessing the severity of a disability. Neither labour market conditions nor the possibility of being terminated from long-term disability benefits excuses an appellant from providing “evidence of employment efforts and possibilities”. Given the foregoing reasons, this appeal is dismissed.
In attendance (via teleconference)
Appellant: A. M.
Representative for the Appellant: Daniel Griffith (counsel)
Representative for the Respondent: Viola Herbert (paralegal) and Dale Randell (counsel)
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