An Interesting Week...

This week I visited Ottawa. I called in to see the staff at the Review Tribunal office. I have been working with this office for some 12 years now, so it was nice to put faces to names.

While visiting in Ottawa I had the pleasure of experiencing my first earthquake!

After leaving Ottawa, I worked in Alberta. I have a very interesting case let's call him Wayne.

Now Wayne and I have known each other for many years. He is a client who has significant Osteoarthritis in numerous joints and he is in his late fifties. The reason why Wayne has been a client for so long, is that every year he tries to continue to work. He has a wife who is mentally ill and he is her primary caregiver.  This man tries each year to work to make money to support his family.

The thing is, he needs joint replacements which he refuses to have because he has no way to financially support his wife and to keep their home. So he gets up each day and picks garbage and bottles in order to survive. He also tries each year to be self-employed, gets a contract and then cannot complete the work because of his functional limitations. He cannot sleep due to chronic pain, and he is medicated all the time.

And to top it all off Wayne will not go before a hearing to "beg" for money - he says he is to proud to do this. Despite my advice that he has paid in to Canada Pension Plan for over 30 years and that this is not charity - but an entitlement - if you qualify.

The reason why I bring this case up, is because I have a client who has excellent medical evidence, who is working against medical advice, who relies on pain medication, who cannot have a joint replacement because he cannot afford to stop working, and the Feds say he is not disabled because he is working - and how can I argue this because technically he is.

However, there is provision in the legislation about what is a Substantially Gainful Occupation as well as an Allowable Earnings Provision. I could have argued whether he is working for a Philanthropic Employer - namely himself - and each case is a unique case to be assessed on its merits.

I went to Alberta quite prepared to run this by the Review Tribunal but - Wayne - who showed up to meet with me the morning of the hearing - could not handle appearing before the tribunal to "beg" for a benefit - he just would not do it.  So he left.  I really tried to help him understand the process but he just could not cope with attending the hearing.

I appeared before the Tribunal on Wayne's behalf and interestingly his Miminum Qualifying Period had changed allowing the Panel to consider his situation to date. Had I known this prior to the hearing I would have prepared myself differently. Rightly so, we did not proceed without Wayne and now I am going to submit all of the information back to the Feds and make a submission on Wayne's behalf to see what they will do - my guess - hold the line and say he is working.

Why am I blogging about this? It upsets and frustrates me that a man who has significant disabilities, supportive doctors, who has given it his all now since 2007, and who is in chronic pain, has to continue to struggle and pick garbage and bottles and not take surgery because he simply cannot afford to sustain himself and his mentally ill wife without losing his home.  He has applied for provincial benefits and they have also turned him down because they too say he is working therefore he is not disabled. What is wrong with this picture?

Well until next week, hang in there. If you need some help call or email me at info@dcac.ca

Chronic Back Pain...

I must apologize - it's been a while since I have had the time to blog. I have been travelling doing appeals out here in the West. In late May I attended four appeals - all men - and all different types of back injuries. Chronic Pain, Mechanical Back Pain, Low Back Pain, whatever you want to diagnose it as - has its challenges when trying to establish disability under the legislation.  The appellants were all different - the circumstances all unique - but the underlying issues were that none of them could work due to the pain and limited mobility they experienced.

Often times, there is argument by the Feds, that there is no objective information to substantiate the appeal.  Sometimes, they argue a Pension Appeals Board case that states that Back Pain is due to activity intolerance, or deconditioning.  This seems to be a favourite case of the Fed's that I have been presented at the various levels of appeals - http://www.pab-cap.gc.ca/english/docs/2007/cp24738e.web.pdf

Now keep in mind that this is only one case - and as we all know - there are cases that can support a claim for chronic back pain. I would just like to post this case so that you can be prepared  - as this seems to be the case de jour at the moment.

I will agree that chronic back pain, or myofascial pain, or chronic pain syndrome are challenging cases to establish eligibility.  The most successful appellants have done all that they can to mitigate their disability - they have gone to chronic pain clinics, they have tried to return to work in some capacity - if some residual capacity exists - they have tried everything they can think off to get back on their feet and back to work.

In these cases, The Feds will argue that there is no objective evidence - but remember objective evidence - is only one part of the overall picture.  Subjective evidence can be considered in the totality of the evidence presented to the Feds.  Credibility of the appellant goes a long way when assessing the weight of subjective evidence.  Also, chronic pain is often diagnosed in the absence of objective evidence. Here are some of the cases that I have been involved that may help:

http://www.pab-cap.gc.ca/english/docs/2009/cp26006e.web.pdf

http://www.pab-cap.gc.ca/english/docs/2009/cp26189e.web.pdf

http://www.pab-cap.gc.ca/english/docs/2005/cp22721-e.pdf

http://www.pab-cap.gc.ca/english/docs/2008/cp25115e.web.pdf

If you have any questions, please contact me at info@dcac.ca