Date: 19980923
Docket: T-610-98
BETWEEN:
SALVATORE GRAMAGLIA,
Applicant,
- and - THE ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
ROTHSTEIN J.
[11 This is a judicial review of a decision of Rutherford J., Vice-Chairman of the Pension Appeals Board, dated May 6, 1997, made pursuant to subsection 83(1)' of the Canada Pension Plan, R.S.C. 1985, c. C-8, dismissing an application for leave to appeal to the Pension Appeals Board from a decision of a Review Tribunal.
83. (1) A spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse or, subject to the regulations, any person on behalf thereof, or the Minister, if dissatisfied with a decision of a Review Tribunal made under section 82, other than a decision made in respect of an appeal referred to
in subsection 28(1) of the Old Age Security Act, or under subsection 84(2), may, within ninety days after the day on which that decision is communicated to the spouse, former spouse, estate, applicant, beneficiary, beneficiary's spouse, person or Minister, or within such longer period as the Chairman or Vice-Chairman of the Pension Appeals Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board.
Page: 2 Pursuant to section 822of the Canada Pension Plan, the Review Tribunal found that the applicant was not disabled within the meaning of subsection 42(2)3of the Act and was therefore not entitled to a Canada Pension Plan disability benefit.
[2l The decision of Rutherford J. is brief:
I have reviewed the material in this application and in the related 26page affidavit and appended materials (affidavit sworn October, 1986) and when it comes to the actual focus on medical evidence relating to the degree of disability the applicant suffers from, it is essentially the
2 82. (1) A spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse who is dissatisfied with a decision of the Minister made under section 81 or subsection 84(2), or a person who is dissatisfied with a decision of the Minister made under subsection 27.1 (2) of the Old Age Security Act, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal in writing within 90 days, or any longer period that the Commissioner of Review Tribunals may, either before or after the expiration of those 90 days, allow, after the day on which the spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse is notified in the prescribed manner of the decision or the person is notified in writing of the Minister's decision and of the reasons for it.
(11) A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age Security Act and may take any action relation to any of those decisions that might have been taken by the Minister under that section or either of those subsections, and the Commissioner of Review Tribunals shall thereupon notify the Minister and the other parties to the appeal of the Review Tribunal's decision and of the reasons for its decision.
in
3
42. (2) For the purposes of this Act,
(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,
(i) a disability is severe only if by reason thereof the person in the determination is made is incapable
gainful occupation, and
(ii) a disability is prolonged only if it is disability is likely to be long continued result in death; and
(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
respect of whom
regularly of pursuing any substantially
determined in prescribed manner that the and of indefinite duration or is likely to
Page: 3
evidence that the Review Tribunal had before it. The reports of Drs. Cole and Penney acknowledge significant disability, but they also acknowledge the residual capacity for lighter or sedentary work which led the Review Tribunal to its conclusion. Notwithstanding the additional and weighty material in the application, it does not provide a basis on which to foresee a different result on an appeal from the result reached by the Review Tribunal. I must therefore decline to grant leave to appeal to this Board, which is therefore refused.
[3] The applicant makes a number of arguments. First he says Rutherford J. did not have the relevant material before him when he made his decision. He says the certified record does not indicate when the material that was forwarded to the Court was filed before Rutherford J. On this basis he asks this Court to find that the material was not before Rutherford J.
[4] There is absolutely no evidence to support the applicant's allegation. On the contrary, the decision of Rutherford J. makes reference to salient portions of the record. There is no reason to believe the record forwarded to the Court was not before Rutherford J. and this argument is rejected.
[5] The applicant then says that Rutherford J. ignored the evidence that was before him. The applicant suffers from a severe spinal stenosis with disc bulging. The applicant points out medical evidence that his disability is permanent, that his condition will worsen, that treatment (physiotherapy and NSAIDS) have been only minimally effective, that no other future treatment is recommended and that the applicant cannot take any action to lessen the severity of the diagnosed condition.
Page: 4
In his decision, Rutherford J. notes that the medical reports acknowledge significant disability.
[6] However, Rutherford J. also notes that the medical reports acknowledge that the applicant may engage in light or sedentary duties. It is because the medical reports say that the applicant may engage in these activities that the Review Tribunal dismissed the applicant's appeal. There was no new medical evidence before Rutherford J. to cause him to conclude that the Pension Appeals Board might render a different decision than the Review Tribunal and therefore he dismissed the applicant's application for leave to appeal. Clearly, Rutherford J. considered the evidence before him. There is no basis for concluding that he ignored evidence.
[7] Then the applicant says that the decision of Rutherford J. was not issued
until May 23, 1997 and that on May 15, 1997 he submitted a new medical report
for consideration on his application for leave to appeal. He says he called the
Pension Appeals Board and was told that the decision was issued May 23, 1997.
However, a letter dated May 23, 1997was sent by the Registrar of the Board to
the applicant stating:
I acknowledge receipt of your letter dated May 15, 1997, together with Dr. Coppola's medical report dated May 6, 1997, and the radiology reports dated May 5, 1997, and July 25, 1996. I regret to inform you that the appeal process stops when leave to appeal is refused by the Chairman or Vice-Chairman of this Board. I am sorry that there is nothing I can do to assist you further. If your condition has deteriorated
Page: 5
since you applied, you may wish to make another application for benefits.
The decision of Rutherford J. is dated May 6, 1997. It was sent to the applicant by registered mail on May 9, 1997. The letter of May 23, 1997 reflects these dates. I can only conclude that the applicant misunderstood exactly what was told to him when he called the Board. There is no credible basis to this argument.
[81 The applicant then says that in proceedings he took in the Alberta Court of Queen's Bench with respect to a claim for benefits under Albertalegislation, Prowse J. found that there was no evidence that he could do light work and only speculation that he might be able to do such work. See Gramaglia v. Porisky et al., Alberta Queen's Bench, Action No. 9701-02287, September 16, 1997, para. 12. The applicant says that the decision of the Review Tribunal and that of Rutherford J. are inconsistent with the decision of Prowse J.
[9l The applicant conceded that the medical reports that were before the Review Tribunal and Rutherford J. were not before Prowse J. In the absence of medical reports, I would agree that whether the applicant could or could not do sedentary or light work in the future would be speculative. However, medical evidence that provides a considered prognosis cannot be said to be speculation. The medical reports are based on tests and clinical examinations and must be relied upon to determine whether, and the extent to which, an individual may be disabled such
Page: 6 that he is incapable of regularly performing any substantial gainful occupation for a long and indefinite period. Unlike the case before Prowse J., such evidence was before the Review Tribunal and Rutherford J. Their decisions were not based on speculation.
[ 101 Next, the applicant says the decision of the Review Tribunal from which Rutherford J. dismissed leave to appeal was not signed by members of the Tribunal. The Commissioner of Review Tribunals notified the applicant of the decision of the Review Tribunal in accordance with subsection 82(11). The formality for issuing decisions was properly followed in this case.
[1 11 The applicant has questioned the honesty of everyone involved in this matter. Indeed he has attempted to impeach the evidence of his own doctors whose reports state that he could engage in light or sedentary work. Allegations of dishonesty or fraud are serious matters. In the proceedings before me there is absolutely no foundation for such allegations. I expect that if the applicant had been represented by counsel, allegations of dishonesty without any foundation would not have been made. Should the applicant be involved in future court proceedings, he should take care not to make such allegations without any basis to support them.
Page: 7 [121 I have no doubt the applicant suffers from significant disability and he feels he is entitled to CPP disability benefits. Counsel for the respondent represented to the Court that if the applicant could demonstrate that he had a disability entitling him to benefits prior to December 31, 1997, he would qualify for such benefits.
He further indicated that benefits could be retroactive for up to fifteen months from when a new application for benefits is made. The applicant does have a medical report dated May 6, 1997stating that the applicant "is incapable of any suitable job" and that "he is markedly restricted both by pain and functional limitations which would preclude him from seeking gainful employment". The applicant should make a new application under the Canada Pension Plan for disability benefits without delay. Of course, it is for officials acting under the Canada Pension Plan and ultimately the Review Tribunal and Pension Appeals Board to decide whether he does indeed have a disability that entitles him to benefits under the CanadaPension Plan. However, if he does, an application filed immediately will maximize the benefits he may receive.
[131 The judicial review is dismissed. There shall be no award of costs. Marshall Rothstein
J U D G E
OTTAWA, ONTARIO SEPTEMBER 23, 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-610-98
STYLE OF CAUSE: SALVATORE GRAMAGLIA v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 17, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE ROTLi:~'fLi ~1
| DATED: |
Septemher 23, 1998 |
|
| APPEARANCES: |
|
|
| Salvatore Gramaglia |
|
|
| (representing himself) |
|
FOR APPLICANT |
| Me Daniel Roussy |
|
!,OR RESPONDENT |
| SOLICITORS OF RECORD: |
|
|
| Morris Rosenberg |
|
|
| Deputy Attorney General |
|
|
| of Canada |
|
FOR RESPONDENT |