I HEART the Pension Appeals Board

This week I had a Pension Appeals Board hearing.

The Pension Appeals Board is the last level of appeal (typically speaking - there is appeal to the Federal Court of Canada if you are denied at Pension Appeals Board) but that is well out of my area of expertise.

The Pension Appeals Board is the appeal level you go to if you are denied at the Review Tribunal. Appeal rights are not automatic - and you have to be given permission or leave to appeal to attend at this level.

The Pension Appeals Board is made up of three usually retired judges - they are great, savy, and expert fact finders.

I heart the Pension Appeals Board.

My client this week was a lady let's call her Beth. Beth is complicated - she experiences significant pain - in both a physical and emotional way. Beth has been diagnosed with Fibromyalgia as her physical condition and many other mental health conditions. Beth has experienced chronic trauma her entire life - but I admire her - she is resilient, smart and tells it like it is.

Beth had a very unfortunate experience with the Review Tribunal - if I may speak frankly - the decision was, well let me just say it made me see red and only in my opinion re-abused Beth with their narrow minded and high browed condenscending writings as well as accusing Beth in no uncertain terms of fabricating her entire life experiences and trauma that she experienced. Yes panel members what happened to Beth does happen in the real world. I told Beth not to read the decision because I did not want her to be again abused by the system. Harsh words I know but I speak the truth.

Anyway, I convinced Beth that I would deal with this - I would submit the Leave to Appeal which I did and we were granted Leave which meant the decision of the Review Tribunal was set aside (good riddance in my opinion).

This is the second time that Beth's Pension Appeals Board hearing has been scheduled - the first time the CPP disability adjourned the matter so that they could get an Independent Medical Examination - I thought great - the Feds are developing the file - and Beth was sent to a Physical Medicine doctor who recognized she had significant pain but thought perhaps there were psychological issues as well contributing to her disability - and so the Feds then sent Beth for an Independent Medical Examination with a Psychiatrist. Good call I thought.

Two IMEs are very rare and not something that I have seen - so I thought for sure the Feds would settle - especially when the Psychistrist came back stating that Beth's residual capacity for work activity was very low and her prognosis is poor given the chronic nature of her condition.

But no the hearing was scheduled and the information in its totality appeared to be ignored.

Now Beth - she was adamant that she was not going to appear - she was disgusted by the way she was treated at the Review Tribunal, she had sent in every government form, she has consented to two Independent Medical Exams, she had openly discussed intimate and very difficult to hear details about her life - and she was not going to appear again and have her wounds relived (her words) - she wanted to quit and she was fearful that another negative experience would push her down too much. She kept asking me "what else do they (the feds) need?"

I did not know what to do - I contacted the lawyer representing CPP and told him that I did not think the hearing would proceed given Beth's feelings about the process - he told me that he would argue negative inference (which means that the Board should consider the appellant not appearing in a negative way) if Beth did not attend.

I called the registrar at the Pension Appeals Board - let's call her Jane - she was great and gave me some really helpful advice and encouragement and suggested that I try one more time to ask Beth to attend the hearing.

Well I picked Beth up and I got her to the hearing and I prayed to the heavens that I was doing the right thing by ensuring her that everything was going to be okay and that we would get through the hearing. I am so glad she agreed to attend.

I heart the Pension Appeals Board - the panel had obviously read through the entire file - they asked appropriate questions - they treated Beth with the utmost respect and kindness - I do not know how the decision will come down - but Beth was so happy because she felt she was heard and she felt VALIDATED.

The opposing side took their cue from the Board and they were also very respectful of Beth and even though I thought the lawyer asked a series of bonehead questions and was making very simplistic and grasping at straws arguments - he was good to Beth - the doctor (typically not my favourite) was dare I say it - fair and balanced. Although doc I do not agree that a little aquasize would solve the problem!

Anyway, why am I writing this? Well you know the big Harper Hammer is coming down on these appeals and I am really worried how people are going to cope in this new system - I am trying to keep the glass half full approach to this and believe that the new system may be a good thing. Right?

A "connected" person I know in the disability community who has the inside track on the Harper Hammer told me that the bureacracy is in chaos. I will leave it up to the readers out there to decide for themselves what they think - but that is what I was told and I hope that somehow all of this chaos will resolve itself to the benefit to Canadians at some of their most vulnerable times - when they are trying to apply for a CPP disability benefit because they contributed to the system over many years of work.

Have a good week friends.

 

 

Some Statistics

I submitted a Freedom of Information Request to find out what is happening with CPP disability applications and appeals - in 2010 - 2011 there were 73,179 applications for CPP disability - up 3965 applications from 2009 - 2010.

 

Of the 73,179 applications 39, 160 of them were denied.

 

The AVERAGE annual decision through put time of initial applications was:

National Region 104 days

Atlantic Region 94 days

Ontario Region 101 days

West Region 111 days

 

The AVERAGE annual decsion through put time of reconsiderations was:

National Region 105 days

Atlantic Region 114 days

Ontario Region 94 days

West Region 119 days

 

 

Another concern

Okay so you have been reading about my concerns and I have just thought of another thing.

Many individuals who go to the appeals - have witnesses - support people - and sometimes doctors or professional people attend the hearing to give evidence on their behalf. Sometimes, when there is say a stroke or a brain injury and there is cognitive issues - a professional or a spouse will give evidence to the Panel to highlight the changes that they have seen in the appellant's functioning. One of the ways to quantify cognitive decline is with a neuropsychological assessment but these are extremely expensive - so my question is how are people now going to be able to give evidence - how are the single members going to be able to hear all the aspects of the case?

Is everything going to have to be in writing?

Also how is the average person going to be able to afford the cost of the medical reports to support their appeal? I am able to finance medical reports for my clients - but it is very expensive - and is the average person going to be able to secure the evidence that they need in order to win their appeal - I also have the expertise to get the information that is required from a doctor to substantiate an appeal - writing that their patient is "severe and prolonged" on a prescription pad is not going to cut it.

In what format is a spouse or partner going to be able to give evidence? The Feds mantra about no "objective medical evidence" they often use in order to deny a claim - but how is an single member going to assess a person's credibility and experience when they are talking about subjective evidence like pain or mood? How is that going to be assessed on paper?

How is a person with mental illness or brain injured going to be able to coordinate all the information they require in order to have a comprehenive appeal?

So many questions - and so far no one will give me any answers - at least not from Human Resources Development Canada.

 

Canada Pension Plan disability Social Security Tribunal

If you have been following my recent blog entries, you will be aware, that included in the Haper Government's massive Bill C38 the Budget Implementation Act 2012, it outlines what is going to happen in terms of this new appeals system that is going to be put in to place for people who are denied Canada Pension Plan disability benefits as well as Employment Insurance benefits. These changes to the CPP disability appeals system have been overshadowed by so many other changes that the government is implementing, that there has been little in fact almost zero discussion amongst Canadians.

I would like to perhaps enlighten the masses what it is like for someone who finds themselves in the position of having to apply for disability under the Canada Pension Plan system. Firstly, unless a disability is catastrophic and immediate it can take a long time before a person ulitimately decides that they can no longer work. This decision is difficult to make - so much of our self esteem and dignity is tied in to what we do - where we work - how we make a living - and it often means giving up financial independence and putting a financial burden on yourself and your family. But you decide that you can no longer work, so you get the forms from Canada Pension Plan and you start to complete them. These forms can be quite onerous for an individual for numerous reasons, and then you have to get your medical doctor on board to complete the medical report required by CPP.

Some doctors are really great, the go above and beyond to help out their patient and support them fully in the application. Some however are very lukewarm, often because of the paper work and the extra time this takes, the small amount the Feds pay for their time, as well as the pervasive feeling among doctors that most of the claims are going to be denied anyway. Still an applicant perserveres and completes the application. Sometimes, they contact me and ask me questions about how best to succeed and try their very best to send in a complete and comprehensive application.

Then they wait............. and they wait............. and they wait ............... and they phone .......... and likely after six months they might get a phone call from the adjudicator responsible for making the decision. Some of the adjudicators are very nice people and very nicely explain what their decision is - some of them - well don't get me started on that - and yes finally you get a decision - DENIED - you are denied - because while we understand you have physical limitations you are able to do "some type" of work so you do not meet the legislative criteria.

After a person reads this denial, I typically find a number of things will happen. One person may become enraged and immediately appeal, some might become discouraged and believe that the decision rendered is correct so they quit. Other appellant's may be heartbroken that their family has struggled to keep things afloat only to be denied and hope begins to fade - some people even force themselves back to work to prove that the government is wrong.

Of the people who appeal, well they go back to their doctors for more information. They try and call Service Canada to get the answers to no avail. They are lost and they do not know what to do - but they do know the decision is incorrect. Sometimes they find my office.

I do not have much faith that the appeals are fairly adjudicated - most times in the files - I just see a reiteration of the same information that the Feds relied on to deny the claim the first time around - sometimes I see pages of information that are ignored - which again only supports my belief - that there is an amount of claims exposure the Feds expect to have - not proven of course - I can never find a way to do that - but I believe it is true - but anyway you still have to go through the reconsideration.

And so they wait ......... and they wait........... and they wait - and again likely after another six months - you are denied again. So approximately 12 months after you applied you are still without any financial support and you are still unable to work.

As I have mentioned in previous blog entries, I have felt confident that an appeal that was arm's length and independent was a good thing. The Panel members and judges were well trained, and there were three people involved that would make a decision on the appeal. They were able to meet the client in person and talk about the disability - not just rely upon written information.

Now the Harper government is changing all of that. They are also pushing for appeals that are going to be held using electronic means - phone or video conferencing - or even just paper appeals - and as I have said before - how is one - appointment by the government tribunal member - going to have all the necessary experience - medical, legal, etc, to adjudicate an appeal?

It is very unfortunate that Canadians are being denied this opportunity to an arm's length independent appeal - unfortunate and shameful. All the good people at the Review Tribunal and Pension Appeals Board have worked diligently to ensure appellants got fair and non adverserial hearings and now it is all being dismantled.

Readers may assume that I am self-interested because I am a private advocate who makes her living off successful appeals - but it is more than that - I am not concerned about putting together an application or appeal that would be successful and identifying the merits of an appeal - my real fear is the impartiality and that this new appeal will simply be another way to rubber-stamp another denial - closing options for legitimate good Canadian people who have paid in to CPP and who are disabled.

These changes are coming in to effect in April 2013. So please if you are in the appeals process it is critically important that you find someone who is experienced to help you either with the application or appeals process.

I will keep you posted.

 

Forgive my spelling

I am having trouble getting my blog software to allow me to edit posts - I keep losing them when trying to edit - so forgive my spelling errors. Will edit my posts when I can get to the bottom of it GRRRR.

A change is going to come - April 2013

When the Feds announced the budget in March included in the contents was this paragraph:

"The Minister will introduce legislative amendments to eliminate administrative duplication in appeals and tribunal services by replacing the current administrative tribunal system for major federal social security programs with a single-window decision body. The new Social Security Tribunal will continue to provide a fair, credible and accessible appeals process for Canadians."

This now means that the Office of the Commissioner of Review Tribunals as well as the Pension Appeals Board will cease to exist in its current format.

The Budget Implementation Act which came out April 26th, 2012 provided some information about what this new Social Security Tribunal would now look like.

The Social Security Tribunal will consist of the General Division and an Appeal Division.

The Tribunal will consist of no more than 74 full time members appointed by the Governer in Council.

The General Division can summararily dismiss an appeal if it is satisfied that it has no reasonable chance of success.

If you are denied at the General Division you can appeal to the Appeal Division and any appeal to this division may only be brought if leave to appeal is granted.

The only grounds for appeal are that

a) the General Dvision failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or

c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The head office of the Tribunal is in the National Capital Region or at any other place within Canada that may be designated by the Governor in Council.  I have also heard through that there is a push for electronic appeals - are the hearings going to be held in the location that the appellant resides in or are they going to be done just on paper alone?

Under the current system if you are denied at the Review Tribunal and you are granted Leave to Appeal to the Pension Appeals Board you get what is called a hearing "de nova" which means that the Pension Appeals Board will look at the appeal with 'fresh eyes" - you start from scratch and essentially the prior decision carries no weight on the decision making process.  However, under the new system the appeal division will only intervene if an appellant is able to establish the decision contained one of the above noted errors.  This concerns me - the average person will have no idea how to make these arguments.  How is a person with no education, or those who have language barriers, or those who are functionally illiterate, or who are sick ever going to be able to make a successful submission?

Every application to the Tribunal is to be heard before a SINGLE MEMBER.  Who are these members going to be? Are they going to understand the tenants of the CPP legislation? Are they going to have a medical background so they can understand the medical reports? The Feds at the Pension Appeals Board had a doctor who would explain the medical condition to the Board because they did not have medical expertise - the Review Tribunal have a medical member sitting on the Panel - are these new single members going to have the expertise of a lawyer or a medical person? Also, when the appeal is heard before three panel members I understand that they have the opportunity to deliberate among themselves and there is the opportunity to discuss all the points that have been made at the hearing - when there is an appeal before a single member - well I feel that that opportunity is lost - if the single member is having a bad day - who is going to hold that single member accountable? Where will the balance in the decision making be - it is no different from presenting the information at the initial application, and at the reconsideration - those decisions are made by a single member of the Federal Government - is that the same thing that is going to happen under the new system - only the single member is in a different location??

There is also a lot of discussion in this Bill about the Electronic Administration of the Canada Pension Plan.

 

So what does this mean? I am not a friend of the Federal Government - you have read my blog and likely noticed the disdain I have for the Feds. They state in their budget document that this new tribunal is going to "provide a fair, credible, and accessible appeals process for Canadians." - not likely. My first response to this was why would the Feds do this - the Tribunal and the Pension Appeals Board run well - the system has been in place for years. I believe and have stated many times that having a hearing before three independent arm's length community panel members is an excellent way for an individual to have his case and application for Canada Pension Plan disability fully explored.

An individual from Service Canada told me that the adjudication time frame for an initial application is running as high as 32 weeks - that is eight months. Then 60% approximately are denied - and then you are waiting at least another 20 - 25 weeks for a reconsideration. I am still waiting for the results of a Freedom of Information request I submitted to formalize these statistics but things are pretty grim out there - at least that is what I hear from the daily calls of desperation to my office. So in the past I was confident that an appellant would have a good hearing before the Review Tribunal especially if they were prepared well - and now the Feds have completely changed the system and from what I read - the Canada Pension Plan Act itself.

Now everyone is up in arms about changes to the environment but what about all of these subtle changes that affect Canadians - believe me no one seems to care - unless it happens to them - and you have read my discussion about how this process and procedure negatively and significantly impacts Canadians at some of their lowest times - how exactly is that fair and credible, oh and lets not forget accessible?

So I am working here to evolve the website as these changes come in to place - I will tell you one thing I believe for sure - get help with the application - get help with your appeals - make sure you find someone - use the resources on the website - anything you can do to make sure you get a successful result before these changes came in to place.

I intuitively believe that the Feds are doing this for one reason alone - and that is to save MONEY - and of course in my opinion their CLAIMS EXPOSURE which will ultimately mean they will save MONEY.

Please check back as I make changes to this website to help you with your applications and appeals.

Credible. Fair. Accessible. My a$$