Decision
[1] Leave to appeal is granted.
Overview
[2] A. L. (Claimant), completed high school and qualified as a practical nursing care aide. She worked in this job until she was injured in a number of car accidents. She applied for a Canada Pension Plan (CPP) disability pension and claimed that she was disabled by these injuries. The Minister of Employment and Social Development (Minister) refused the application. The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division dismissed the appeal. Leave to appeal this decision to the Appeal Division is granted because the General Division may have erred by failing to consider the medical evidence, or in finding that her long-term disability benefits are substantially gainful earnings.
Issues
[3] I must decide whether there may be a reasonable chance of success on appeal that the General Division erred as follows:
- By failing to consider the medical evidence;
- By deciding that the Claimant’s long-term disability benefits are substantially gainful earnings under the CPP;
- By deciding that the receipt of long-term disability benefits is determinative of whether the Claimant’s condition was severe under the CPP;
- By deciding that the CPP disability program is a needs-based scheme;
- By finding that the Claimant’s CPP retirement pension would be affected by her receipt of a CPP disability pension; or
- The General Division was biased because it did not consider the Claimant’s arguments.
Analysis
[4] The Department of Employment and Social Development Act (DESD Act) governs the Tribunal’s operation. It provides only three grounds of appeal, namely, that the General Division failed to observe a principle of natural justice or made a jurisdictional error, made an error in law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.1 Further, leave to appeal is to be refused if the appeal has no reasonable chance of success.2 The grounds of appeal the Claimant presents must be considered in this context.
Issue 1: Did the General Division err by failing to consider the medical evidence?
[5] To be found disabled under the CPP, a claimant must provide medical evidence regarding their disability to establish their case.3 The Claimant filed a number of medical reports. While the decision maker need not refer to every piece of evidence presented, and is presumed to have considered all of the evidence,4 this presumption can be rebutted if important evidence is not referred to. In this case, the General Division failed to refer to any medical evidence. Its conclusion that the Claimant’s disability was not severe was based solely on her receipt of long- term disability benefits. The General Division may have made its decision without regard for all of the material that was before it. Leave to appeal is granted on this basis.
Issue 2: Did the General Division err by finding that disability benefits are substantially gainful earnings?
[6] The General Division’s decision that the Claimant was not disabled was based on her receipt of long-term disability benefits from her employer, and an interpretation of the Canada Pension Plan Regulations and how the Canada Revenue Agency characterized the Claimant’s disability benefits. However, the General Division did not consider the terms of the Claimant’s employment, including that she could not attend work to “earn” income, and her other circumstances to decide whether she was capable regularly of pursuing any substantially gainful occupation. This may be an error of law, and is an issue that bears further consideration on appeal.
Other Issues
[7] The Claimant presents a number of additional grounds of appeal. However, because I have found that at least one ground of appeal may have a reasonable chance of success on appeal, I need not consider the other grounds of appeal.
Conclusion
[8] Leave to appeal is granted.
[9] The parties are not restricted to the grounds of appeal considered in this decision.
[10] I note that the Minister did not make any submissions regarding the issue of what “substantially gainful” means to the General Division. It is encouraged to do so for this appeal.
[11] This decision to grant leave to appeal does not presume the result of the appeal on the merits of the case.