Date: 20001220
Docket: A-72-97
CORAM: LINDEN J.A.
McDONALD J.A.
| MALONE J.A. |
BETWEEN:
GERALD H. WIRACHOWSKY
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Regina, Saskatchewan on Friday, November 17, 2000
Judgment delivered at Ottawa, on Wednesday, December 20, 2000
| REASONS FOR JUDGMENT BY: McDonald J.A. |
| CONCURRED IN BY: Linden J.A. |
| Malone J.A. |
Date: 20001220
Docket: A-72-97
CORAM: LINDEN J.A.
McDONALD J.A.
MALONE J.A.
BETWEEN:
GERALD H. WIRACHOWSKY
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
McDONALD J.A.
[1] This is an application for judicial review of a decision of the Pension Appeals Board (the "Board") dated July 26, 1996 dismissing the applicant's appeal from a decision of the Review Board dismissing a prior appeal from the decision of the Disability Adjudicator which denied the applicant a disability pension as provided for by paragraph 44(1)(b) of the Canada Pension Plan1 (the "CPP").
[2] In the five years preceding the applicant's request for a disability pension on May 29, 1991, the applicant had been variously employed as a cook, taxi driver, carpenter and coffin assembler. In January, 1991, the applicant slipped and fell on a patch of ice, and has not worked since. In response to the questionnaire accompanying his application for a disability pension, the applicant identified his main disabling condition as the loss of strength and control in his arms and legs. He also stated that when he sits down or bends over and straightens back up, he comes very close to passing out. The applicant also claims to suffer from severe headaches, periods of reduced coordination and the inability to sit or stand for long periods of time.
[3] On April 30, 1991, the applicant was diagnosed by his family physician as suffering from a chronic pain syndrome known as fibromyalgia.2 The applicant has since been examined by a neurosurgeon, a neurologist, a rheumatologist, an orthopaedic surgeon, a radiologist, another family physician and a chiropractor. The medical reports prepared on the basis of these examinations were unanimous in restricting the applicant to work that did not involve any heavy lifting. Particular reports also ruled out "excessive bending" and "prolonged continuous sitting". The applicant was also diagnosed with degenerative disc disease causing chronic back, leg, neck and shoulder pain.3
[4] On July 30, 1991, the applicant's application for a disability pension was denied by the Disability Adjudicator. Unfortunately, due to an administrative error, the applicant received a letter dated January 6, 1993 informing him that his appeal from the Disability Adjudicator had been allowed and that he was disabled under the terms of the CPP. The applicant was informed of the mistake by letter dated April 20, 1993 enclosed with which was the correct decision denying his appeal. The applicant's appeal from this decision was in turn denied by the Review Tribunal on September 1, 1993. The applicant appealed to the Board.
[5] The Board denied the appeal on the basis that the applicant's disability was not "severe" within the meaning of the CPP. The Board explained that an applicant must have a disability that is "severe and prolonged" in order to qualify for a pension under paragraph 44(1)(b) of the CPP. The Board then stated that, according to paragraph 42(2)(a) of the CPP, a disability is severe and prolonged where it "renders a person incapable of regularly pursuing any substantially gainful occupation" and is determined to be "long continued and of indefinite duration or likely to result in death".4 Given that the applicant last met the minimum qualifying period for pension benefits in December of 1991, the Board held that the applicant had the burden of proving that his disability was "severe and prolonged" as of that date and up to the date of the application. Finding that the medical reports contained nothing that would prevent the applicant from pursuing gainful employment in a semi-sedentary occupation, the Board concluded that the applicant's disability was not "severe" within the meaning of the CPP and therefore dismissed the applicant's appeal.
[6] The applicant argues that the Board based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it as per paragraph 18.1(4)(d) of the Federal Court Act.5 In Powell v. Canada (Minister of Human Resources Development),6 this Court had the occasion to consider the appropriate standard to apply in reviewing the assessment of evidence by the Board in a paragraph 42(2)(a) "severe and prolonged" analysis. In that decision, Desjardins J.A. adverted to the functional and pragmatic approach to determining the appropriate standard of review; however, she concluded that
| [para13] In the case at bar, the applicant claims that the Board, while embarked on a paragraph 42(2)(a) analysis, ignored "the material before it". Her argument is based on paragraph 18.1(4)(d) of the Federal Court Act. The standard applicable for this statutory review is the same as the standard of patent unreasonableness. |
[7] I am satisfied that the Board failed to consider all of the medical evidence before it in deciding that the applicant was not disabled under the CPP. Of particular significance was the Board's failure to consider the evidence of the applicant's orthopaedic surgeon, Dr. Jugdeo, that the applicant "should also avoid jobs that involve prolonged, continuous sitting".7 Similarly, Dr. G.D. Chadwick indicated that the applicant "cannot lift or maintain an upright posture for long
periods of time".8 These medical opinions corroborate the information supplied by the applicant in the questionnaire attached to his application for the disability pension. That information indicated that the applicant could only sit and stand for short intervals before experiencing numbness and pain.9 In the circumstances of this evidence, the Board's holding that the applicant was capable of semi-sedentary work is untenable. I should also note that the phrase "semi-sedentary work" referred to in the medical evidence and the Board's decision is, in my opinion, incapable of conveying clear meaning for the purposes of assessing disability under the CPP.
[8] Having regard to all of the evidence before the Board, I am of the view that the decision cannot stand. The application for judicial review is allowed and the matter will be remitted
to the Board for reconsideration in accordance with these Reasons. The applicant should be reimbursed for his actual and reasonable expenses incurred both here and at the Board level.
| "F.J. McDonald" |
| ________________________________ |
J.A.
"I agree
A.M. Linden J.A."
"I agree
B. Malone J.A."
__________________2 Medical Report of Dr. Brian Gamborg dated April 30, 1991, Respondent's Application Record at 41-43.
3 Letter from Dr. S. Jugdeo dated September 1, 1992, Respondent's Application Record at 61.
4 Subparagraphs 42(2)(a)(i) and (ii) of the CPP.
7 Letter from Dr. S. Jugdeo dated September 14, 1992, Respondent's Application Record at 62.
8 Report of Dr. G.D. Chadwick dated May 8, 1991, Respondent's Application Record at 76.
9 Questionnaire, Disability Benefits, Canada Pension Plan, Respondent's Application Record at 44.