IN THE PENSION APPEALS BOARD IN RE THE CANADA PENSION PLAN JOYCE HEADLAM. - and- THE MINISTER OF EMPLOYMENT AND IMMIGRATION.

Transcription

1 IN THE PENSION APPEALS BOARD IN RE THE CANADA PENSION PLAN BETWEEN: JOYCE HEADLAM Appellant - and- THE MINISTER OF EMPLOYMENT AND IMMIGRATION Respondent Appeal CP 3506 heard in Toronto, Ontario May 10, 1996 Before: The Honourable S.J. Walker The Honourable Mr. Justice Sirois The Honourable G.R. McMahon Counsel: Leo Dillon for the Appellant Nicole Gendron for the Respondent McMahon for the Board: The 55-year-old Appellant, Joyce Headlam, first applied for a disability pension as provided for by the Canada Pension Plan by application dated August 30, Her application was denied since she was not

2 -2- considered disabled and she was so informed by letter dated October 17, The Appellant never appealed this initial decision. The Appellant again applied for a disability pension on January 25, This application was also denied, as well as an appeal to the Respondent Minister. She then appealed to a Review Committee and her appeal was again denied on March 18, An application was made by the Appellant for leave to appeal the decision of the Review Committee to the Pension Appeals Board. This application for leave to appeal was denied by the Chairman of the Pension Appeals Board on April 30, The Appellant made a third application for a disability pension on September 1, The application was denied and the Appellant was so informed by letter dated November 30, The Appellant then appealed to the Respondent Minister who denied her appeal on May 6, On May 19, 1994, the Appellant informed the Office of the Commissioner of the Canada Pension Plan Review Tribunals that she wished to appeal to a Review Tribunal. Her appeal was heard before a Review Tribunal, and on September 5, 1994, the Review Tribunal dismissed the appeal. The Appellant applied to the Chairman/Vice-Chairman for leave to appeal to the

3 -3- Pension Appeals Board from the decision of the Review Tribunal and leave was granted on November 17, When this appeal came before this Board, the Appellant, who was represented by counsel, presented her case. The "appeal book," which included evidence presented by the Appellant and the Respondent to the Review Committee and the Review Tribunal, was tendered as an exhibit. The Appellant testified on her own behalf and was examined by her counsel and cross-examined by counsel for the Respondent. At the finish of the Appellant's case, counsel for the Respondent moved that the appeal be dismissed as no new evidence had been presented to the Board and that the matter was res judicata. The presiding Member of the Board advised the parties that the matter would be taken under advisement and requested the Respondent to proceed and present any evidence other than that contained in the "appeal book." The Respondent called one witness: namely, Janeen MacDonald, M.D. In order to be entitled to a disability pension, the individual must be disabled as defined in section 42(2) of the Canada Pension Plan and have made valid contributions to the Plan for a minimum qualifying period.

4 -4- Dealing first with the issue of res judicata raised by the Respondent, this Board is of the opinion that res judicata applies as the question of the Appellant's entitlement to a disability pension was decided when the Chairman of the Pension Appeals Board denied her application for leave to appeal on April 30, 1991 In Francis MacIsaac v. Minister of Employment and Immigration, CCH Canadian Employment Benefit and Pension Guide Reports, 1994, no. 8570, pp to 6067, the Pension Appeals Board on November 15, 1994, stated as follows: We agree that there is nothing in the Act which precludes a person from making more than one application, but in our view each application once finally determined is subject to the rules of res judicata and cannot be revived by a subsequent application. Counsel for the Appellant submits that a Review Committee is not a court of competent jurisdiction and that the decision of the Chairman of the Pension Appeals Board not to grant leave to appeal is not a hearing on the merits and therefore res judicata does not apply. Section 84(1) of the Act provides that the decision of a Review Tribunal (formerly Review Committee), except as provided by the Act, or the

5 -5- decision of the Pension Appeals Board, except for judicial review under the Federal Court Act, as the case may be, is final and binding for all purposes of the Act. In other words, a decision of a Review Tribunal (Committee) is as final and binding as a decision of a Pension Appeals Board, except that the Act provides for an application for leave to appeal from the decision of a Review Tribunal (Committee). Such an application was made and leave was refused in the present case. Therefore, res judicata does apply. In this third application, the Review Tribunal was correct in denying the Appellant's appeal and it would appear that the reason that leave to appeal was granted on this application was because of the new evidence or information. This Board agrees with the Review Tribunal that there are no new facts which warrant a reversal of the Review Committee's decision of March 18, If there were new facts then, according to section 84(2) of the Act and Francis Maclsaac v. Minister of Employment and Immigration (supra), an application would have to be made to the Review Committee that heard the matter in the first instance. Again, if res judicata does not apply and the Appellant meets or satisfies the minimum qualifying period, the appeal also fails as the

6 -6- Appellant's disability does not fall within the definition of disabled as set out in section 42(2)(a) of the Act. According to that section, the disability must be both severe and prolonged. The Appellant has a disability and it is prolonged, but she must also provide that it is severe. "Severe" is defined in section 42(2)(a)(i) of the Plan as follows: a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation. The Appellant, a registered nursing assistant, on December 26, 1983, was working with a patient and while attempting to prevent the patient from falling out of bed, injured her back. She returned to work on December 27, 1983, but could not continue due to the discomfort and pain. She returned to work on January 7, 1985, and worked until January 16, 1985, when she again had to quit due to the discomfort and pain. She has not worked since January 16, In her testimony before this Board, the Appellant states that some days are bad and others good. She attempts to manage the pain.

7 -7- Referring to her cervical spine, she states that she has spasms on the right side, right neck and weakness in right arm. Also pain in lumbar spine and right leg. She has pain and stiffness and never has a full night's sleep due to cramps in her leg. She walks, sits and sleeps in pain. She has daily dizziness and spasms, as well as trouble with her right shoulder and must be careful what she carries. In addition to all her problems which arose since her 1983 accident, she also has scoliosis (lateral curvature of the spine). In spite of all her problems, the Appellant has taken upgrading and courses in social work as well as participating in volunteer work. She lives by herself and can take care of herself although her friends help her with shopping. Since 1983, the Appellant has seen and been examined by numerous medical people including family doctors, a chiropractor, neurologists, orthopaedic surgeons, a pain specialist, therapists and technicians. She has had numerous X-rays, undergone bone densitometry and thermograms and has been hospitalized for therapy treatment. Dr. Jan Kryspin, a medical doctor and pain specialist, and the three orthopaedic surgeons, Dr. Garson S. Conn, Dr. Barry W. Malcolm and Dr. E.G. Kosinka, agree that the Appellant, due to her disability, is not able

8 -8- to return to her former job as a registered nursing assistant. Where they disagree is whether or not the Appellant is capable of performing light or sedentary employment. concluded: Dr. Jan Kryspin, in a report dated September 20, 1993,... that we have a case of Chronic Pain Dysfunction Syndrome with initial manifestations of reflex sympathetic dystrophy, predominantly on the right side of her body and with significant psychosocial distress that affects her life in a disruptive way. I am of the opinion that she is presently fully and permanently disabled and that she will be capable of only volunteer work or limited part-time activities in the future with no guarantee of stable income. Dr. Garson S. Conn, in a report dated July 23, 1986, stated that [the Appellant] suffered a myofascial strain to her back and her neck as a result of a lifting incident of December, On examination, however, I found very little in the way of abnormalities from an orthopaedic point of view.

9 -9- She does, indeed, have a significant thoracic scoliosis but this in itself is not usually a detriment to carrying on the kind of work that she was doing as an RNA and there are many young women and older women for that matter who have scoliosis and manage to carry on quite satisfactorily although they may have some aching associated with the imbalance of muscles, etc. Generally, however, it is not of restriction in my experience. Dr. E.G. Kosinka, in a report dated February 11, 1987, stated:... the patient's qualifications are satisfactory to perform clerical or organizational work which does not involve lifting patients or other strenuous physical work, such as public nurse etc. In a further report dated December 10, 1987, he stated: On examination there is no pain on mobilization of her spine and I feel that trial in suitable position in nursing would be the best how to get her back to gainful employment. Dr. Barry W. Malcolm, in a report dated October 3, 1991, stated: It is my opinion that this lady is not totally disabled. I do not feel that she is in an appropriate condition to return to work as an RNA,

10 - 10- but certainly feel that if she is able to do her studies at home and can attend community college for lectures, etc., that she should be capable of light sedentary work. One would then feel that a return to some clerical job, within the limitations of her education, would be reasonable. Dr. Janeen MacDonald, a medical advisor to the Respondent, testified before the Board that she had examined all the medical evidence filed with the Board and that she agreed with the three orthopaedic surgeons and not with the pain specialist or consultant. She stated that Dr. Kryspin is not a specialist in the medical sense that the orthopaedic surgeons are specialists and that he is a medical doctor with a diploma in pain management. In her opinion, Dr. Kryspin placed undue weight on the results of the bone densitometry and thermograms. After an examination of all the evidence, both subjective and objective, this Board finds that the Appellant has the capacity to regularly pursue a gainful occupation of a light or sedentary nature. The appeal is therefore dismissed.

11 We certify the foregoing reasons for decision and the Registrar is authorized to enter the decision and, by registered mail, send a copy of this decision and of the above reasons to the parties hereto. DATED this 8th day of July, (signed) G.R. McMahon I concur (signed) A.L. Sirois J.

12 -12- Walker: I concur in the disposition of this appeal of my colleague McMahon, namely, the dismissing of the appeal. I also concur without reservation in his reasoning and result in the area of the Appellant's disability within the meaning of the Act, namely, that the Appellant has not established disability. I have considered with care the question of the applicability of the rules of res judicata to the appeal. Indeed, this is proper since I stated at the hearing of the appeal that res judicata ought not to be decided in the course of the hearing, in offhand fashion, but given careful consideration as my colleague McMahon has done. Indeed, I am pleased he has done so. I assume, without deciding, for the purpose of my decision only, that res judicata does not apply on this appeal, in its precise circumstances, only to explain my resort to "disability" to dispose of the appeal. While I am inclined to the finding of my colleague McMahon on res judicata, namely, that the Appellant was attempting to "revive" an application already "finally determined" to use the words of Francis Mac/saac v. The Minister of Employment and Immigration (supra), I prefer to make the above assumption and base my decision on the lack of establishment by the Appellant of disability within the meaning of the Act rather than the operations of the rule of res judicata in an appeal turning on somewhat

13 -13- unusual facts. This is not intended to diminish or detract from what my colleague McMahon has said in the area of res judicata, but, for me, merely to leave the door somewhat open with respect to an important question and retain some flexibility for the future. The appeal is dismissed. I certify the foregoing reasons for decision and the Registrar is authorized to enter the decision and, by registered mail, send a copy of this decision and of the above reasons to the parties hereto. DATED this 12 th day of July, (signed) S.J. Walker