What is a Substantially Gainful Occupation?

It has been a remarkable week. I have been working solid for a week on five different Pension Appeals Board hearings.

I would like to thank all of the people who put together these appeals - the registrars who make sure everything runs smoothly - and the judges who sit on the Board who are just experts in finding out the facts and applying the legislative tenants.

I will even shout out to the Minister's team!

Okay so this week, two cases dealt with what is a Substantially Gainful Occupation?

The first case, let's call her June. June had been granted CPP disability due to significant Bipolar Disorder. She had had a long history of mental health issues, including hospitalizations. When she is not displaying symptoms - June is lovely with moments of real clarity - but then there is the other side of the coin. June can fluctuate rapidly cycling up and down sometimes in the same hour. June was a big challenge for me. I did not know how to manage her as she is tangetal - and goes off on crazy tangents when you ask her a question. Now June when she was off her medications, decided that she wanted to be "normal" and what is more normal than being part of society and getting a job. So June applied for a janitorial job as a relief worker and soon enough she began to develop sciatica and 11 months later, she had to have spinal surgery. That did not stop her though - in her unmedicated state - June was in a manic stage - and she still tried to keep working despite all of her symptoms. Well the Feds found out that June was working, and based strictly on the fact that she had earnings, June's CPP benefits were ceased. So June was left with no income, by this time her mental health had decompensated to the point where she was again hospitalized, and once she went back on the her medications, she regained some clarity in to her situation. Let's remember that June had mental health and physical health issues. She contacted my office. She was challenging for me to manage - I did not know if I was going to get clarity June, or whether I was going to get not-so-clear June. But we persevered with the appeal, she had been denied at Review Tribunal (she went alone) and so now we had a Pension Appeals Board hearing. Note to the Feds - there was no way this woman could manage the documentation and appeals system alone. There was no one I think how would have taken on her case frankly - as she had earnings while on disability - and on first blush -well you would think the Feds were right to cease her benefits. But sometimes you have to dig a little deeper, connect with a person, and take the time to find out what really went on. June has a great family, a sister and daugther, both of them named Sally (!) who were very helpful in helping me understand June.

So that is a little bit of the context of the appeal. The Pension Appeals Board hearing was this week, and in terms of a "cease benefit" case - the Feds cannot vary the decision that they made that she was disabled according to the legislation - the only issue that would be before the Board - was whether or not the Minister had established that June had "regained her capacity to work" and it was their responsibility to establish that. When I first spoke with the Minister's representative, she said that we would have to present our facts first - well I knew this was wrong - in fact I knew that June did not have to speak at all - it was up to the department to prove that she could work - and all of the information on file clearly indicated that she had not. Really the only reason the Feds has was that June had earnings. Okay so the judges they agreed with me - and the Minister's doctor got up to speak - that was interesting to say the least - and I think she toed the "party line" despite all of the information to the contrary. I did not ask June to speak because she would not have been able to manage this - her daughter Sally spoke on her behalf in a very compelling way clearly explaining her mother's mental health condition and how it has impacted her life - Sally if you are reading this - you know how impressed I am with your resiliance - you are lovely.

So why I am writing this long-winded essay?

The issue was - what is a substantially gainful occupation? You know the definitition - you must be regularly incapable of any substantially gainful occupation - I did some digging around - and according to The Adjudication Framework for Canada Pension Plan (google it - it is online) Substantially Gainful Occupation is defined as 12 times the maximum retirement CPP benefit amount. So I presented this document to the Pension Appeals Board - and stated my position - that the Feds are not even following their own adjudication guidelines. Now I must back up a bit - June was working alone, she would go in to work at all hours of the night - she would work so no one would see her and how she was not managing - all in an effort for her to be "normal" - because she was unsupervised she was able to pull it off right - no one know how crazy this was for June to be working - no supervisor would know what was going on in reality - and there must be an air of reality when assessing a CPP case.

The funniest thing to me was - that the Minister's representative said to the Panel - that the CPP Adjudication Framework - was just a "guideline" and that this was not binding on the Board - the Judge said - are you asking us not to follow your own guidelines? When the decision comes in I will let you know the result.

Okay, the next case concerning what is a substantially gainful occupation was about a woman - let's call her Lila. Lila has been diagnosed with relapsing-remitting Multiple Sclerosis. Lila has been working with her MS since 2005 at a local school doing lunch room supervision and teacher's assistant for a Pre-K class. Lila earnings just over the allowable earnings provision and way under a substantially gainful occupation earnings - but she was denied because she was "working". Okay I was pissed off by this stage. Seriously. The Feds give you all these pretty words like substantailly gainful, and allowable earnings, but they do not follow their own guidelines - they argue you are not disabled because Inclima says you must test your capacity to work - so you are denied - and then they say - you are trying to work within your capacity - but you are not disabled. It just really frustrates me - cause Lila - she was job sharing with another woman who is disabled and on CPP disability - and can only work 7 hours a week - before her MS symptoms like fatigue, brain fog, and muscle weakness kick in. Good for Lila - she loves to work cause it helps her mental health - to contribute to her family.

Any way, this whole point of this blog entry is to try to clarify what is a substantially gainful occupation? There is a dollar amount - and there are a lot of things that are taken in to consideration, like productivity and performance, and whether you are competitively employed, and if it is a philanthropic employer - a whole host of things.

But what I would most like to say - is that obviously the Adjudication Guidelines mean nothing -because the Feds - sure a heck do not follow them - they are only "guidelines". It sure would be a better system if the Feds actually followed their own guidelines.

 

Consultation

It is 6.30am in Saskatoon and I am getting myself ready for an appeal today. This appeal will likely be my last Pension Appeals Board hearing in this city.

I have been up for a while wondering about consultation. I was asked by a gentleman if I was aware of any consultations the HRSDC Bureaucrats may have undertaken before they decided to pull the rug out from everyone's feet concerning all the changes they are making to the CPP disability appeals system.

Consultation - what a concept - perhaps the Feds should have consulted with the community it serves before they decide to foist what I believe will result in an intolerable and inaccessible appeals system on to Canadians. It appears to me that saving money and slashing and cutting back, are all that is on the agenda.

I can illustrate the importance of an in-person hearing. Yesterday I had a Pension Appeals Board hearing in front of a Panel of expert fact finders. The client - let's call him Bob, gave his evidence in a very candid and forthright manner. After three previous denials, half way through the hearing, the Minister offered Bob a settlement. It appeared that the Minister had been able to assess the appellant IN PERSON, his credibility, and how his incapacity, prevented him from being able to work. They decided he met the criteria.

I keep thinking that some how the Feds are going to come to their senses and decide that they are making a collasal mistake - for crying out loud - they do not even have an office yet for the Tribunal and it is coming up to the beginning of November - 5 months away this whole new system is supposed to come in to being. Everyone I have talked to - from the employees at HRSDC legal and medical, the staff at OCRT, the staff at the PAB, the judges and the panel members have NO IDEA what is going on.

So please all my Federal friends who read this blog in the bureaucracy - how about telling us how you plan to make this appeal system work - why don't you CONSULT with the stakeholders you are mandated to serve.

I am sure we would all appreciate it it very much.

 

 

 

In Memory of Gordon Pynn

The print I have just uploaded hangs in my office. Mr Gordon Pynn accomplished artist gave this print to me after I won his Pension Appeals Board hearing. Mr. Pynn was a fighter - he did not give up - and fought the system. The hearing was the longest hearing I have ever been involved in - it was a slug fight from start to end - but we were successful.

The last time I saw Gordon and his wife Jo - they presented me with this print. He wrote - "To Allison, who fought for me, who never gave up, and who truly has the spirit of the cougar" This hangs in my office and I look at it often when I am frustrated or discouraged.

Gordon championed my work, he was an encouraging email away, he was a silent supporter, and an all-round good guy, and I will miss him. But like Mr. Villani (the Villani decision - who I met personally and kept in touch with until he passed) I know he is encouraging me on from a better place.

Rest in Peace Gord - and my condolences to Jo Anne and your family.

The Importance of a Review Tribunal Hearing

Yesterday I attended a Review Tribunal hearing - my client let's call her Helen had applied for CPP Disability twice and had been denied by then a total of four times.

Her insurance company contacted me and asked if I could case-manage her appeal as based on their Independent Medical Examinations she had been found totally and permanently disabled and they could not understand why she had been denied CPP disability.

This hearing was her first face to face appeal. The hearing went very well - Helen was a credible client with very supportive medical information. I think she had a great hearing and a good Review Tribunal panel who were very prepared and professional.

So this is the thing - if she had been denied by CPP disability four times already ON A PAPER REVIEW and she has medical information that has for the past 10 years supported the fact that she is totally disabled - how is a paper review at the new CPP Social Security Tribunal going to be any different than the previous denials the Feds had made on paper?

There is no substitute for a in-person hearing. How a person presents in person is completely different to how a file reads on paper, and if you have been denied twice already on paper - what difference is a third in paper review going to make?

Okay, there is still no word on the new system - what it is going to look like what the policy and procedures are going to be. I do not think they even have an address for where the office is going to be located - and the Feds beilieve that this will all be in place by April 1, 2013.

An article in The Hill Times - Jessica Bruno September 2012 quotes that numerous sources have wondered how the new SST is going to handle the workload and that there could be a 16 month back log on hearing cases - when 74 people try to replace thousands the only thing one can conclude is that access to the system will be completely compromised for Canadians.

After 15 years in the trenches I believe that there is some sort of "ratio or quota" in terms of the CPP denial rate. Although it can never be established - sometimes when I see the denials I wonder what on earth the CPP adjudicators are reading - so I have to wonder.

If there are only going to be 34 members in the new Social Security Tribunal working on 4000-5000 cases a year - and the current 250 or so Review Tribunal members only hear 8 cases a sitting - and there are approximately 8 hearings a week in maybe 70 locations across the country - and they currently work on reviewing the cases, plus sitting on the hearings, plus writing the decisions taking at least 70 hours - how is it that these 34 new full time members are going to handle the current case load - not to mention the continual denials that the CPP Disability are pumping out on a daily basis???

This is an impossible suggestion.

I have heard through the grapevine that the Feds were not happy that their denials were being overturned by the higher arm's length levels of appeals - which I estimate perhaps overturned half of the CPP Denials. Okay the reasons I believe this happened are the case should not have been denied in the first place and two, an in person hearing and the appropriate application of the legislative tenants by professional Panel members who did their work on the file and three, an expert case-manager who put together the appeal, led to a successful result for a person who is disabled and cannot work.

The independent system also avoided the decision making process done by a government who in my opinion simply wants to save money and not to honour the tenants of the CPP Disability legislation - the Feds have indicated that they are going to save $25 million on administration costs - but how much are they going to save ripping people off from getting their benefits? One has to wonder right? That old nasty feeling concerning the quota or ratio of denials is going happen because the new Panel members are simply not going to have the time to handle the number of appeals - the math does not lie.

I believe I can say with confidence that the exisitng case load is not going to be handled by a limited number of Panel Members that the bureaucrats have identified will be working full time for the Social Security Tribunal hearing CPP Disability appeals.

Canadians are entitlted to a fair independent hearing especially when it is dealing with a pension that might be in place for many years. Under this new system I believe it is unlikely this will happen.

Deny Deny Deny

The phone has been ringing all day. The emails come in constantly.

Why am I being denied CPP disability benefits?

This system sucks - says one of my clients.

What does CPP disability want from me? Says another.

Why does this system that we have paid in kick us down at our lowest point - Allison - I am going to lose my house. Says another.

I am not exaggerating - that is just what has happened this morning.

I am so angry. Clients cannot even get appeals - when I call all I am told is that the appeal is waiting to be scheduled.

I have recently received a document that projects there are as of August 2012 between 4000 - 6000 appeals currently in the system waiting to be heard. By April 2013, when the system changes it is projected there may be as many as 8000 appeals waiting to be heard.

Each one of these appeals is a person. What is wrong with this government?

This is not a welfare program, it is a CONTRIBUTORY PROGRAM which means folks - we pay in to this system based on years of working.

Has any one seen the movie The Rainmaker? Deny, Deny, Deny.

Okay - so I am asking - for the online community - if there is any one out there - who knows any one that may be able to help me expose to the general public what is going on with this system - can they please contact me.

I am overwhelmed by your support - the people who call me and encourage me - I am humbled by that. One of my most recent callers told me to take it day by day - and that is what I am doing.

Okay folks - the best defense is a good offense - so call me so that we can continue to put together comprehensive applications and appeals. Do not give up - that is what this system appears to want you to do.

I will keep you posted as always - and again - thank you all for your support.

Allison