Federal Court Decisions

     Date: 19990212

     Docket: T-1505-98

Between :

     FRANK STROUD

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

PINARD, J. :

[1]      This is an application for judicial review under section 18.1 of the Federal Court Act of a decision of the Vice-Chairman of the Pension Appeals Board (the "Board") dated April 29, 1998 denying the applicant leave to appeal and whereby the Board concluded that the applicant's disability was not severe within the meaning of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the "Plan"). The Board's decision reads as follows:

This is an application to appeal the decision of a Review Tribunal dated September 30, 1996.

The grounds of appeal submitted that the Review Tribunal "misinterpreted the medical evidence" and "failed to take into account the Appellant's own testimony."

In my view, the Review Tribunal's decision is reasonable and is supported by the evidence.

The family doctor, until he answered a questionnaire for Standard Life in July, 1996, had previously and consistently maintained that the applicant could do some form of work, but was unable to do the work he had done before. No explanation was given why this opinion changed - in the questionnaire, the specialist's opinion was always that the Appellant could perform light duties, however there may be a lack of such employment. Lack of type of employment is not within the mandate of the Review Tribunal or the Pension Appeals Board to consider if a person is disabled within the Canada Pension Plan.

As I stated earlier, I see no error on the part of the Review Tribunal. There was no misinterpretation of the evidence, nor can it be shown the Appellant's testimony was not considered. The Application for Leave to Appeal is denied.

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[2]      The applicant submits that the Board made an erroneous finding of fact that Dr. Gladwin had changed his mind about whether he could do sedentary work, and that the Board also erred in finding that his disability was not severe within the meaning of the Plan.

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[3]      In a medical report submitted as part of the applicant's Canada Pension Plan application, the applicant's family doctor, Dr. K.D. Gladwin, stated under "Summary and Prognosis": "Unfortunate man with severe back injury L-1 burst fracture. He's not been free of pain since accident and cannot stand, sit or carry without pain. He's always done heavy physical work. Certainly can never return to this type of work."

[4]      In a letter dated July 31, 1995, Dr. Gladwin also stated:

His last office exam by myself was on June 28, 1995. He still complained of daily pain and back stiffness. He cannot stand or sit for more than half an hour without considerable pain. He cannot lift or carry. [. . .]

In summary, this man suffered a severe injury to his lower back and has never fully recovered and I do not expect any further improvement. There are no other therapies to improve him. He will never be able to return to any heavy type of work and definitely cannot do his previous work as a truck driver.

[5]      Later, on July 16, 1996, Dr. Gladwin filled out a questionnaire for Standard Life, the applicant's long-term disability insurer. The questionnaire specifically asked if the insured could return to any remunerated function or work. Dr. Gladwin responded "never". Following the Review Tribunal's decision, which was the subject of the application for leave to appeal before the Board, Dr. Gladwin wrote a letter dated February 26, 1997, stating that the applicant can never return to work of any type.

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[6]      The Board may confirm or vary a decision of the Review Tribunal and has the authority to determine any question of law or fact relating to the eligibility for benefits of an applicant and the amount of such benefits (subsection 83.6). A member of the Board designated under subsection 83(2.1) of the Plan may grant or refuse leave.

[7]      The Rules of Procedure of the Pension Appeals Board for Appeals under Section 83 of the Canada Pension Plan (the "Rules"), adopted under the Plan, make it clear that the hearing of an application for leave to appeal before the Board is a de novo proceeding. Suffice it to refer to Rule 9(2) which states:

9. (2) The appellant may produce documents that the appellant considers useful in support of the application under section 4 or 5.

9. (2) L'appelant peut, à l'appui de sa demande aux termes des articles 4 ou 5, produire tout document qu'il juge utile.

[8]      Disability under the Plan is defined in subsection 42(2) of the Plan:

42. (2) For the purposes of this Act, a) a person shall be considered to be disabled only if he is determined in a prescribed manner to have a severe and prolonger mental or physical disability, and for the purposes of this paragraph,      i) a disability is severe only if by reason thereof the person in respect or whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and      ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death . . .

42. (2) Pour l'application de la présente loi : (a) une personne n'est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d'une invalidité physique ou mentale grave et prolongée, et pour l'application du présent alinéa :      (i) une invalidité n'est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice,      (ii) une invalidité n'est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès . . .

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[9]      The proper test in considering whether the Court ought to intervene in such a matter is the legality of the decision and not the correctness (see Martin v. The Minister of Human Resources Development (March 6, 1998), T-2588-97).

[10]      In the case at bar, as Dr. Gladwin did not state in his 1995 reports that the applicant was not capable of performing all types of work, it was not illogical for the Board to conclude that in stating in the subsequent questionnaire for Standard Life that the applicant could never return to any remunerated work, Dr. Gladwin had changed his opinion. In light of this specific evidence, given the plain language in the 1995 reports, it was certainly not unreasonable for the Board to infer that because the applicant could not do heavy work he could still do light work and, therefore, is not "disabled" within the meaning of the Plan.

[11]      In my view, the fact that Dr. Gladwin's letter dated February 26, 1997 is not specifically mentioned in the impugned decision does not necessarily mean that it was not considered by the Board. First, there is no obligation for the Board to specifically refer to all the documents adduced as evidence before it and second, even though the letter is more explicit than the questionnaire concerning the applicant's disability, it does not either contain any explanation as to why Dr. Gladwin's opinion changed.

[12]      Consequently, the intervention of this Court is not warranted and the application is dismissed.

[13]      Given the particular circumstances of this case, there is no adjudication as to costs.

                            

                                     JUDGE

OTTAWA, ONTARIO

February 12, 1999