CPP Benefit Claims – Does Choosing Your Own Doctor Affect Your Success?

Any person who makes a claim for Canada Pension Plan (CPP) disability benefits must supply medical evidence that he or she has a “disability” within the governing legislative definition. This is routinely done through expert evidence provided by a qualified, impartial doctor to whom the claimant has been referred by other treating physicians.

But what if the claimant refers himself to a doctor of his or her own choosing? For the purpose of establishing a claimant’s disability benefits claim, does that taint the doctor’s evidence, and make it less persuasive?

That was one of the questions tackled by the Federal Court in a case called  Rouleau v. Canada (Attorney General).[1]

Now aged 55, Rouleau had been involved in a motor vehicle accident back in 2005, and complained that he had medical problems ever since that left him unable to work.  He was dismissed from his last job as a line cook in 2010, after complaining of numbness in his arms that left him unable to fulfill his job requirements.  He made no effort to find work after that, and instead applied twice for CPP disability benefits in 2011 and 2012 – both times unsuccessfully.

To qualify, Rouleau had to prove that he had “severe and prolonged disability” within the meaning of the CPP definition.  In support, he offered reports from two doctors to whom he had referred himself for evaluation and treatment.  One was a psychiatrist, who diagnosed Rouleau with moderate to severe depression, concluding that he “would be expected to meet the requirements for CPP disability”.  The other was a pain expert, who reported that Rouleau was “incapable of regularly pursuing any substantially gainful occupation.”

After considering these reports along with other evidence, the Social Security Tribunal’s General Division (the SST) rejected Rouleau’s initial claim for CPP benefits, concluding that he did not meet the threshold of having a “severe and prolonged disability.” An appeal court refused him permission to appeal, and his later bid to a reviewing court was also rejected.

Throughout, Rouleau had argued that the various decision-makers had improperly negated the evidence from the two self-referred doctors, and had given it insufficient weight. More to the point, Rouleau claimed that if that evidence had been properly considered, his benefits claim would have been successful.

The Federal Court considered Rouleau’s argument in the context of the previous hearings.

It noted that the evidence that had been provided to the SST, respecting Rouleau’s medical and physical conditions, had been contradictory.  It was the job of the SST to review all of it, and to choose which of all the available expert reports should be given more or less weight.  The assessment was conducted against the background of the CPP definition of “severe and prolonged mental or physical disability” (where “severe” requires that Rouleau be “incapable regularly of pursuing any substantially gainful occupation,” while “prolonged” envisions that his disability is “likely to be long continued and of indefinite duration or is likely to result in death.”), and required assessing whether Rouleau was still employable in the “real world context.”

Looking at the evidence of the two doctors, it was true that it should not automatically be ruled out simply because Rouleau had referred himself for evaluation.  But this did not mean that their evidence was to be given the same weight as other expert medical evidence from elsewhere.  Rather, it had to be put in context:  Their evaluations and reports were requested by Rouleau himself, for the specific purpose of supporting his CPP disability benefit application. The bigger problem was that neither report provided any extensive analysis on how Rouleau’s medical conditions prevented him from performing some type of work in the “real world.”

With that in mind, the SST had properly evaluated and weighed all the evidence from all sources, to conclude that Rouleau did have some limitations, but had no “significant abnormalities” that left him incapable of working entirely.   It also noted that Rouleau had made no effort to look for alternative work after his last job ended in 2010.

The Federal Court ultimately decided that the lower court had made no error, and that the appeal and reviewing courts’ prior decisions on this point, which had been unfavorable to Rouleau, were also reasonable.

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[1] [2017] F.C.J. No. 558; 2017 FC 534.