Date: 20011217
Docket: T-1466-00
Neutral citation: 2001 FCT 1393
BETWEEN:
VALERIE ZIMMERMAN
(Applicant)
and
THE ATTORNEY GENERAL OF CANADA FOR
THE MINISTRY OF HUMAN RESOURCES DEVELOPMENT
(Respondent)
[1] This application is for judicial review of a decision of the Honourable G.R. McMahon (the "Board Member") of the Pension Appeals Board (the "PAB") dated December 5, 1999 in which he denied the Applicant leave to appeal to the PAB from a decision of the Canada Pension Plan Review Tribunal (the "Review Tribunal").
The Review Tribunal
[2] The Review Tribunal acknowledged that the Applicant suffers from fibromyalgia. The central issue for the Review Tribunal was whether the disease had reached a stage at which the Applicant could be considered to be disabled for the purposes of the Canada Pension Plan.
[3] The Review Tribunal heard the oral testimony of the Applicant and her sister and considered conflicting reports from medical experts. It issued detailed reasons for its decision denying the Applicant's appeal from the negative decision of the Minister of Human Resources Development Canada.
The Issues
[4] Although a number of issues were raised, I will refer only to those which, in my view, were at least arguable. They were:
i) whether the Board Member erred when he failed to consider a letter of March 10, 1999 written by Dr. Lee, and
ii) the appropriate standard of review
Discussion of the Issues
(i) Dr. Lee's Letter of March 10, 1999
[5] Dr. Lee is a Rheumatologist who is a Professor of Medicine at the University of Toronto and a practitioner at the Mount Sinai Hospital in Toronto. He wrote a letter on the applicant's behalf dated March 10, 1999 (the "Second Lee Letter"). The Applicant's affidavit for this judicial review application which was sworn on September 1, 2000, indicates, in paragraph 18, that her counsel presented the Second Lee Letter to the Review Tribunal at its hearing on April 8, 1999. However, it was not referred to in the Review Tribunal's Reasons and does not appear in its certified record. Unfortunately, this problem did not immediately come to the Applicant's attention and the letter's absence from the Review Tribunal's record was not raised as a ground of appeal before the Board Member.
[6] Further, because she was not aware that it was missing, the Applicant did not offer the Second Lee Letter as new evidence before the Board Member on her leave application as she was entitled to do. Indeed, she offered no updated medical evidence on her leave application.
[7] The important question on this application is whether the Second Lee Letter contained new material information. It was not Dr. Lee's only letter. He examined the Applicant on February 19, 1998 and provided a detailed report dated March 11, 1998 (the "First Lee Letter"). It provided the history of her development of fibromyalgia and confirmed the diagnosis with an examination which showed that "All 18 tender points recognized by the American College of Rheumatology for the purpose of diagnosis of fibromyalgia were positive". Dr. Lee concluded that the applicant was severely functionally disabled, that she was not employable in any capacity and that her long term prognosis was extremely poor.
[8] The Second Lee Letter dealt with several subjects. Firstly, Dr. Lee commented on a Functional Capacity Evaluation and concluded that the evaluation confirmed his earlier opinion. Secondly, he noted that another doctor, Dr. Richardson, had confirmed his earlier findings by also basing a diagnosis of fibromyalgia on a score of 18 points. Thirdly, Dr. Lee provided a two sentence critique of Dr. Liao's opinion which he said appeared to be based on her belief that the Applicant did not have fibromyalgia. Lastly, he turned to the material provided by Professional Health Management Inc. and said: "I would agree that, based on the functional capacity evaluation, Ms. Zimmerman might be ‘able to engage in a number of areas of competitive employment at the sedentary level'." However, he expressed reservations about whether such employment could actually be found.
[9] In my view, when Dr. Lee made this observation, he softened his earlier opinion that the Plaintiff was not employable and accepted the conclusions which Professional Health Management Inc. had reached about the Functional Capacity Evaluation. Those conclusions were identical to those reached by the Review Tribunal when it held that the Applicant was not disabled because she was capable of some form of sedentary employment.
[10] In sum, I have concluded that, (i) the Second Lee Letter contained virtually no new material, and (ii) his own substantive evaluation was also before the Board in the First Lee Letter and (iii) the Second Lee Letter did not materially assist the Applicant's case. For these reasons, I am not persuaded that the absence of the Second Lee Letter from the Review Tribunal's record justifies a conclusion in the Applicant's favour on this application for judicial review.
(ii) The Standard of Review
[11] The Applicant has asked me to conclude that the applicable standard of review of a decision to refuse leave to appeal to the PAB should be correctness. However, even if correctness were the test (which I doubt), it is my view that the Board Member was correct when he denied leave for the reasons he gave.
Conclusion
[12] For all these reasons the application will be dismissed.
"Sandra J. Simpson" JUDGE
Ottawa, Ontario
December 17, 2001