Good Days versus Bad Days - Predictability is the essence.

One of the tenants of the Canada Pension Plan definition of disability is that the Appellant must be "incapable of regularly pursuing any substantially gainful occupation.

Remember this - Predictability is the essence of Regularity.

My client Bill had chronic fatigue.  The Tribunal in their decision found that Bill's evidence was credible and sincere.  The Review Tribunal accepted that he could no longer work due to the multiple effects of chronic fatigue, arthritic pain, and a general lack of energy.

The Minister argued that he still had capacity to work because he had "some good days".

The Review Tribunal found that the Appellant having "good days and bad days" did not equate to his ability to seek and maintain employment because he would not be predictable.

Chandler v. MHRD CP 4040 stated that "despite brief periods of work capacity, the unpredictability of the Appellant's chronic fatigue and pain flare-ups and his need for frequent rests, rendered him incapable of regularly maintaining any substantially gainful occupation in the real world."

 

Regulatory Changes Affecting Review Tribunals

Recent changes to the Review Tribunal Rules of Procedures include:

1.  A requirement that witnesses testify under oath - as a matter of practice, the Chairperson will ask the witnesses to simply state that he or she promises to tell the truth, rather than do so while holding a holy book or sacred object.  In law, this approach is called making a solemn affirmation.

2.  Review Tribunal panels will have the discretion to decide whether to exclude witnesses while others are testifying or to allow them to be present.  It is worth noting that formal rules of evidence requiring the exclusion of witnesses are intended to enhance the reliability and credibility of the evidence on which a decision-maker relies.

This information has been provided to me from the Office of the Commissioner of Review Tribunals by way of the Representative's Bulletin.

 

Has CPP cut off your disability benefits? What do you need to know about reassessments.

I have received a lot of calls surrounding the issue of reassessment. These are CPP disability recipients who are being reassessed by HRSDC to see if they still qualify for disability benefits.

Unfortunately, I receive a lot of calls in my office from individuals who have been working while collecting a CPP disability benefit, who are now facing significant overpayments, and who want me to do something about it.  Nothing frosts me more. Believe me, if you are working at a significant level while collecting CPP disability eventually you will be caught - word to the wise. 

And then there are individuals who try to do some work and they are cut off. My client let's call her Sue comes to mind.

Sue had been in receipt of CPP disability for approximately 10 years. She lived in cottage country. She had a large plot of land and she had a garden plot in which she grew vegetables in season. Over the summer months - she put a stall at the end of her driveway and she sold new potatoes and vegetables to the cottage crowd. She also was an artisan and as a hobby over the winter months she painted. She also sold some of these crafts at the end of her driveway.

A disgruntled neighbour who wanted to get even over a prior neighbourhood incident -  reported that she was "working" to Canada Pension Plan.

CPP disability started to investigate Sue's earnings with Canada Revenue Agency and soon found that these earnings were insignificant - less than $1500 per year - and well below the allowable earnings provision. Okay, so legitimately they were concerned how Sue had the functional capacity to "work" a garden. Sue submitted letters from her neighbours and family members supporting that she was not responsible for any physical work. They also wondered how she was capable of sitting at a stall all day - to which Sue provided evidence stating that her "customers" were regulars - who she had known for some time - and who called on her home if she was not in the stall - and that she also heard cars as they came to her driveway.

In order to develop the file, Canada Pension Plan sent her for a Functional Capacity Evaluation. This conveniently came back stating that she was capable of sedentary work - however - the report also said that her sedentary capacity was not consistent, that she had chronic pain, and a whole host of other comments that tended to mitigate the comment that she was capable of sedentary work.

Sue ended up having to appeal to the Office of The Commissioner of Review Tribunals - some 18 months after CPP cut her off - she had her hearing. Sue had to go on Social Services in order to survive.

When there is a reassessment hearing the onus to establish a client is NOT DISABLED rests with The Minister. That means HRSDC has to establish that the CPP recipient is capable of regularly pursuing a substantially gainful occupation. HRSDC also has to establish this on the balance of probabilites using the totality of the information on file, that the appellant is no longer disabled at the time the benefits were terminated.  The Minister cannot argue that the decision to allow the CPP benefits on application was incorrect - they cannot vary a prior decision confirming a claimant's eligibility.

The Review Tribunal found in favour of Sue, it was pretty obvious really;  a no brainer. The Feds had the opportunity to review the same information as the Review Tribunal yet they still maintained their position that the client was working.

There is an allowable earnings provision for individuals who are CPP recipients - stay tuned - I will tell you all about it.

 

 

The Minister's Explanation of Decision under Appeal.

When an appellant goes before a Review Tribunal the Minister of Human Resources Social Development Canada (HRSDC) is a party to the appeal.  They send a representative to the hearing to advocate the government's position as to why the appellant was denied. This is the Fed's argument and a good place to start when trying to sort out what the issues are under appeal.

In the remote past, the appellants were given these arguments at the hearing. This of course was a huge disadvantage to an appellant, as they would not be prepared for the arguments that may be made by HRSDC. So due to procedural fairness the department started to ensure these explanations were given to appellants prior to the appeal and this procedure has continued to present date.

There are many regional offices that adjudicate CPP applications. Most of the regions are very prompt in having their submissions sent to the Review Tribunal office so the appellant can prepare for the hearing and understand the issues under appeal.

However, there is a recent trend with the Ontario Chatham office - apparently there is a big problem getting information from this regional office.  This situation happened to me recently. I had a hearing adjourned in September 2009 as I submitted information two weeks prior to the hearing and the Chatham office did not have the opportunity to review the new information - we hoped that this new information may change the Fed's position.

So by the time the Review Tribunal contacted me again to reschedule the hearing - some 5 months later - we still had not heard what the Fed's position was on the new information.  Being a good representative and trying to avoid what I thought was an unnecessary hearing - I repeatedly tried to find out what was going on with the new information.

Long story short - the hearing proceeds - and I receive the Minister's explanation - 20 minutes before the hearing started. Now I am an experienced representative, I can think on my feet, but for someone who is appearing alone or with an infrequent rep - this is a huge disadvantage.

The reason I was given was that the nurses did not have time to look at the information I had given back in September 2009. Is this an isolated incident - I would like to know - please contact me at info@dcac.ca if you have also been in this position.

 

The double-edged sword.

Warning I am going to rant!

I attended an appeal this week.  My client, let's call him Joe is a great guy - who has since the mid 90s been working with Osteoarthritis in many of his joints. He has continued to try and work but in 2005 - he was not longer able to do physical labour work. He then decided to return to school to reeducate himself into a sedentary occupation. However, the side effects of not sleeping due to pain, narcotic medications, and prolonged sitting left him unable to continue - and after six months he was no longer able to participate in college. He definitely gave it the old "college try".

Joe had a family to take care of, and although his wife works, most of us know, a double income is how most families maintain a reasonable standard of living, so rather than see his family lose their home, Joe went back to some type of work - most of you have probably seen these words in your CPP denial letter - you are not capable of your own job but you retain the capacity for some type of work. Joe applied for CPP in 2007 and was denied - he did not appeal but rather decided again to try some type of work and follow the CPP's suggestion.

So he worked reduced hours, what ever he could do, to keep his family fed. His pain levels increased, his disability increased, his family suffered because he was irritable and in constant pain, he was not able to sleep, he started to have anxiety attacks, basically his attempts at mitigation failed as a result of his disability.

In 2008, he reapplied to CPP for a disability benefit. He was again denied because he was working 13 hours a week. This was not substantial, it was not gainful, he was not productive, and he was working below the allowable earnings provision.

So what did CPP say? You are denied because you are working.

Now my pet peeve with the Feds - you are denied because you have not tried to work - and when you try to work - you are denied because you are working.

Does anyone see where I am going with this?

Anyway the hearing went well, we were prepared, he had a good panel, and I think he had a good hearing - the decision is yet to be determined - but I will keep you posted.

 

 

Mitigation, Mitigation, Mitigation

Over the years that I have been representing clients appealing CPP denials, the issues that the decision makers focus on, swing back and forth like a pendulum. When the landmark Villani decision came along it changed the CPP landscape and although this is a very significant decision, if you are solely relying on Villani to win your appeal I would caution you to think twice.

The pendulum has now swung towards mitigation issues. What is mitigation and why is it important? Mitigation - to lessen, reduce, moderate, make less severe, ameliorate, to make better, or improve. How do mitigation issues pertain to a CPP disability appeal?

Well if you are bringing yourself before a CPP decision maker you have a duty or responsibility to mitigate your appeal.  If there is evidence of work capacity you will normally be required to test this capacity - for further explanation check out the Inclima decision which is located in the FAQ section of the website.

You also have a duty to ameliorate your disability - this means that you are typically required to follow medical recommendations. Now of course there are reasons why an appellant may not have followed recommended treatment - for example financial hardship or intolerable side effects, but for the most part, you need to follow recommended treatment options.

If you have questions about mitigation, please feel free to email at info@dcac.ca

 

Review Tribunal Panel Discussion

The afternoon session of the Representatives Information Session included the opportunity to hear from sitting Panel Members who shared their thoughts on effective advocacy when appearing before the Review Tribunal. The Panel consisted of British Columbia members who have been sitting for some time and who I have had the opportunity to appear before. 

Some of the tips the Review Tribunal panel members gave were - to use good time management - stick to the facts of the case, using your schedule appeal time to rant about the unfairness of the CPP legislation, or how you much you think "the Feds" suck is a complete waste of your time. Have a strong opening and closing statement and stick to the issues on appeal - use the Minister's Submission as a starting point  - written submissions are helpful, and the Panel members really want to hear from the Appellant - what's the impairment and why you cannot work.

The Review Tribunal panel members are aware of the significance of the appeal and how much their decision will affect your life. All of the Panel members have the opportunity to write the final decision. However, although panel members are empathetic to each person's situation, they are obviously bound by the CPP legislation.

This was a good opportunity to hear what the decision makers think and what they feel is effective advocacy.