Court File and Parties

Citation: Peplinski v. Ontario (Disability Support Program), 2012 ONSC 2972 Divisional Court File No.: 191/12 Date: 2012-06 Superior Court of Justice – Ontario Divisional Court

Re: Bernadette Peplinski, Appellant And: Director of Ontario Disability Support Program of the Ministry of Community and Social Services, Respondent

Before: Aston, Swinton, Herman JJ.

Counsel: Lesli Bisgould and Richard Owen, for the Appellant Cheryl Ellison, for the Respondent

Heard: at Toronto, May 16, 2012

Amended Endorsement

Aston J.

[1] Ms. Peplinski appeals a decision of the Social Benefits Tribunal (“Tribunal”) dated December 29, 2010, affirmed by that Tribunal on March 28, 2011. Those decisions upheld the determination by the Director of the Ontario Disability Support Program that the appellant was not a “person with a disability” within the meaning of s. 4(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c.25, Sch.B (“ODSPA”).

[2] Section 31 of that Act provides a statutory right of appeal to this court but only on a question of law. Existing case law has established that the standard of review is correctness.

[3] The appellant raises two issues:

(i) Whether the Tribunal erred in law by disregarding medical information in a letter from the appellant’s family doctor, Dr. Coulas, dated May 17, 2010, submitted to the Tribunal July 7, 2010 by counsel for the appellant; and

(ii) Whether the Tribunal erred in law by taking the word “ache” to mean something less than “pain”.

[4] Ms. Peplinski suffers from fibromyalgia, chemical/air pollution sensitivity, irritable bowel syndrome and nutritional deficiencies. She applied for income support under the ODSPA on September 18, 2009. September, 2009 is the same month that Ms. Peplinski became a patient of Dr. Coulas. Before that, she had been without a family doctor for quite some time, accessing a hospital for ongoing medical care.

[5] The Tribunal was satisfied on the evidence that the appellant’s impairments are continuous or recurrent and expected to last one year or more. It was also satisfied that a qualified person had provided the required verification on the Health Status Report submitted with her original application. That Health Status Report had been completed by Dr. Ivan Hoogenhuize on July 13, 2009. However, the Tribunal held that at the time of the Director’s decision November 24, 2009, the appellant had failed to establish one of the essential elements under s. 4 of the ODSPA: that her impairments were “substantial”, citing a lack of evidence to support such a finding.

[6] Before looking at the evidence or lack of evidence on the question of whether the appellant’s impairments meet the “substantial” threshold in the definition of disability in s. 4 of the ODSPA, the Tribunal explicitly recognized appropriate passages from the leading authority on that issue found in Gray v. Director, Ontario Disability Support Program (2002), 2002 7805 (ON CA), 59 O.R. (3rd) 364 (C.A.).

[7] In addition to its consideration of the appellant’s own evidence, the Tribunal looked at the medical information from Dr. Hoogenhuize and the hospital reports that had been provided. The Tribunal’s factual determination that this evidence was inadequate to support a finding that Ms. Peplinski’s impairments were substantial is unassailable on appeal to this Court because an appeal only lies on a question of law.

[8] However, subsequent to the date of the Director’s November, 2009 decision, Ms. Peplinski submitted a new medical report, relying upon s. 64(1)(a) of O.Reg. 222/98 under the ODSPA which reads in part as follows:

On an appeal to the Tribunal from a decision that a person is not a person with a disability, a report described in paragraph 5 of subsection 14(2) that was not provided to the Director before the decision was made shall be considered by the Tribunal if it relates to the appellant’s condition at the effective date of the Director’s decision.

[9] This new medical report consists of a single page letter found at page 90 of the Record of Proceedings. This letter from Dr. Coulas dated May 17, 2010 responds to a letter from counsel for the appellant. It states that Ms. Peplinski has been a patient of Dr. Coulas “since September, 2009”. It confirms that she “has been suffering” from certain impairments and “is suffering” from the same impairments identified by Dr. Hoogenhuize. The letter concludes “I do not feel that at this time she would be a candidate for work because of her health conditions”.

[10] The Tribunal considered this new medical evidence by acknowledging it. However, it found this report “irrelevant because it does not reflect the appellant’s medical state at the time of the Director’s decision and therefore [the Tribunal] has not given consideration to this document”. Given the reference to September, 2009 in that letter, it would have been preferable for the Tribunal to give a fuller explanation for why it decided the letter did not “relate to” the period predating the Director’s decision or why the letter had no value in the decision making process.

[11] However, in our view, the Tribunal did not err in law in failing to afford any weight to the letter of May 17, 2010.

[12] Though the letter indicates that Ms. Peplinski has been a patient of Dr. Coulas’s since September, 2009, there is nothing specific in her report addressing the appellant’s medical condition in the specific period September, 2009 to November, 2009 when the Director’s decision was rendered. The only specific date referred to is an office visit on April 12, 2010. It would have been easy enough for Dr. Coulas to give information about the appellant’s condition in September, October or November of 2009 if she could, but she did not. The appellant has thus failed to establish that the information in that letter “relates to” Ms. Peplinski’s condition at the effective date of the Director’s decision as required by s. 64(1)(a) of the ODSPA regulation.

[13] Furthermore, and perhaps more to the point, the Tribunal had already accepted that Ms. Peplinski’s impairments are continuous or recurrent and expected to last a year or more, findings which did not need corroboration by Dr. Coulas. Without reference to specific dates, the new letter could not assist the appellant in establishing that her impairments were “substantial”. On that critical issue the letter has no probative value.

[14] On the appellant’s own evidence, as noted by the Tribunal on page 3 of its decision, Ms. Peplinski’s condition worsened after the date of the Director’s decision so it cannot be assumed that the impairments described by Dr. Coulas in the Spring of 2010 relate back to the Fall of 2009.

[15] In Jemiolo v. Ontario (Director, Disability Support Program), 2009 9420 (ON SCDC), [2009] O.J. No. 884 (Div. Ct.) this Court held that new medical reports submitted under s. 64(1)(a) “are presumed to outline the appellant’s condition at the date on which they were written unless there is a specific indication to the contrary”. In this case, the only “specific indication to the contrary” is the statement that the appellant “has been my patient since September 2009” without any reference to the circumstances of that initial relationship or any indication that from September to November, 2009 the doctor/patient relationship had anything whatsoever to do with the conditions upon which the application was made or the issue of whether those conditions were substantial within the meaning of the ODSPA.

[16] The appellant also submits that the Tribunal erred in law by taking the word “ache” to mean something less than “pain”. The specific sentence is found on the last page of the Tribunal’s Reasons and it reads: “The Tribunal finds that the appellant often described her symptoms as aching as opposed to pain, which the Tribunal finds is less than pain”. This sentence needs to be read in the context of the paragraph in which it is found. The Tribunal acknowledged that the appellant’s main impairments are pain and fatigue but was examining the appellant’s evidence to determine the substantiality of her impairments and the reliability of her evidence. In doing so, it observed that there were inconsistencies which made it difficult for the Tribunal to determine the level of her impairments. One of the specifics that the Tribunal noted was the appellant’s evidence that she is “aching” after driving 30 minutes while at the same time, saying that she was “in constant pain”. The Tribunal was not looking for dictionary definitions. It was attempting to understand the appellant’s own evidence. It understood that she intended to convey a different meaning by using the words “ache” and “pain”. If the Tribunal made any error (and it is not apparent to us that it did) it would be an error in weighing the evidence, not an error of law.

[17] The Tribunal did not err on any question of law. The appeal is dismissed without costs.

Aston J.

Swinton J.

Herman J.

Date: June , 2012