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I have been thinking

by Allison Schmidt 31 December 2012 12:33

I am on a roll today - must just be because it is in the last day of the year - and I am reflecting - or perhaps because I have had some time off from the office -  and I have a lot to say!

There have been clients who have contacted me, who are appealing their Canada Pension Plan disability benefits and who are also clients of a disability insurance company. They may have disability coverage through work or they may have purchased it themselves - and if you read my blog you will know that Canada Pension Plan is typically first payer on any disability benefits.  When clients contact me who need the help and they are insurance clients - I ask them if the insurance company has been forthright in giving them the medical information in their files in order to help them support their appeal.  If they have not - I typically contact the insurance company to help facilitate this request.

Now most insurance companies are helpful - and why wouldn't they be? After all they have a very important stake in the outcome of an appeal -  because all the back pay goes back to the insurance company (most times) and then the benefit they pay, is reduced by the CPP disability benefit.  Some times insurance companies want to charge for photocopying - which I find a little cheeky.

Most insurance companies say that they have a "good working relationship" with HRSDC and CPP disability and that they have a good success rate in terms of getting benefits approved. I think the reason why is because insurance companies have the resources to fully explore a disability file - by that I mean they have the resources to send people to rehabs, to chronic pain clinics, for independent medicals, for functional capacity evaluations - all the typical medical and functional consults that establish whether disability exists.  However, insurance companies  still put the responsibility for applying for and appealing the denial on their client - I do not think most insurance companies are aware of the process and the challenges of making these applications - especially for brain-injured or clients who have problems with literacy as well as the added stress of dealing with this application with very little resources in terms of information about the process.  In my opinion, the declining levels of service from the Feds due to cut backs is also making this process more challenging.

Then I got to thinking, you know what about those people who cannot afford to pay for these assessments - again another uneven playing field and another example of how lopsided this process is for average Canadians.

At DCAC I try as many ways as I can to get the necessary assessments to support a disability claim through as many resources as I can - but when a doctor in BC wants to charge $900 for a medical report - there are challenges for both me and my clients.  When I am requesting medical evidence to support an appeal - I ask the doctor to advise me of the approximate cost of a report - and that helps me negotiate fees - however, doctors spend a lot of time doing paper work and need compensations - so it is a delicate line to walk.  I also discuss any fees for medical reports with my clients so they are aware of the costs. 

The CPP Adjudication guidelines state that an adjudicator must be "reasonably satisfied" that the disability exists - I explain that as any reasonable person who reads the information on file would agree that the appellant meets the legislative criteria.  The Onus or Responsibility to establish disability rests with the applicant on balance - which means more likely than not - the appeal should succeed - it is not "beyond a reasonable doubt" which is what I think CPP requires.

Anyway, it is yet to be seen what is going to happen with the Social Security Tribunal as now more than ever information on paper is going to be critical in the appeals process.  So being able to negotiate information from various sources and presenting them to the appeals body is going to be paramount. 

In the new year I have a lot of things to do in terms of preparing for this new system - I am committed to ensuring that this website and my office become a resource for Canada Pension Plan applications and appeals - if you chose to use DCAC services or not - at least here you will find the information you need to help with your case and if you are denied CPP Disability benefits.

I am always available to answer questions - so send me an email or call.

As always, hang in there - and do not give up.  Happy New Year.

Tags:

Appeals

Privacy Breach at HRSDC

by Allison Schmidt 31 December 2012 12:19

My office has been inundated with calls from clients concerning a privacy breach at HRSDC.

The Toronto Star reports that the lost data belongs to disability applicants which explains why so many of my clients have been calling me.

Human Resources and Skills Development Canada (HRSDC) confirmed that the electronic storage device was lost by a staff member in mid-November (really it took them six weeks to advise people) and the information contained information on "individuals in the midst of attempting to secure Canada Pension Plan disability benefits" (reported by the Toronto Star December 30th, 2012).

Hmmm........

Not good HRSDC.

Why are people in the department not encrypting personal information and why would they be carrying around data about applicants on a memory stick? Not really a good explanation is given - and there is no mention about how the USB stick containing all this data was lost. Was it lost - stolen - misplaced - destroyed - what happened??

Lots of nice platitudes from the department though - they are doing their best - yada yada yada.

Not so comforting for my clients who are at their banks and contacting various resources to prevent identity theft - not to mention personal information regarding medical issues - many clients have just described it as being "unsettling" not knowing where their information is.

Clients have been asking me what they should do - take safe guards - check credit reports - advise the banks.

Is HRSDC going to compensate if this information is used negatively?

 

Tags:

Appeals

Social Security Tribunal Regulations

by Allison Schmidt 31 December 2012 09:45

The regulations for the new Social Security Tribunal were finally posted in the Gazette. I am reviewing the regulations to determine how best to help my clients who will find themselves included in the new system with the changeover April 1, 2013.

Some of the changes to the current appeals system include the following:

The General Division must dismiss an appeal if it is satisfied that the appeal has no "reasonable chance of success" (summary dismissal).  Otherwise, the General Division must decide the appeal based on further evidence and subbmissions presented by the parties.   Before dismissing an appeal the General Division must give  notice in writing to the Appellant and allow the Appellant a reasonable period of time to make submissions. 

I would like to say that there have been many cases that I thought would have no chance of success based on initial review of the documentation - however, upon meeting the client and discussuing the situation, it becomes very apparent that there is a lot of information missing or what is on paper does not present the totality of the situation.  Also, how is an appellant supposed to understand the legislative tenants in terms of making written submissions, how is someone who is not particularly knowledgable about the "rules of the game" supposed to put forth a adequate argument on submission?


The proposed regulations identify email as an acceptable communication method for the Social Security Tribunal. Electronic communication would be encouraged for the filing of an appeal and relevant documentation, as well as a way for SST to respond and to issue decisions. 

The Social Security Tribunal or a party to the appeal would be able to request that parties participate in three new approaches to settling an appeal: (1) pre-hearings, (2) conferences, or (3) dispute resolution processes.  The latter two may be requested at any time during the appeals process. 

The proprosed SST regulations would provide that hearings may be conducted a variety of ways, including through written questions and answers, by video or teleconferencing, or in person.  How a hearing is conducted would be decided by Members.

I think that the Appellant should decide how they want the appeal to be heard - after all - it is their appeal and their pension benefits that are being decided upon.  I am still working my way through these regulations - how disability is defined under the Canada Pension Plan is not going to change.  So you will still have to be found disabled based on the same criteria as before.  Do not leave these applications and appeals to chance in the hopes the the appeal will be developed - you need to present the case in its totality right off the bat - and with experienced representation and case-management your chances of success will be increased. 

 

 

Have you been denied Canada Pension Plan Disability Benefits?

by Allison Schmidt 31 December 2012 08:46

If so, then the Disability Claims Advocacy Clinic is the place to come for help. 

I have noticed lately, that there are some new websites that are popping up on the internet, offering assistance with appeals.  These websites say that they have been representing people for many years and have a wealth of experience.  They also post blog entries that appear very closely related to the entries I have posted here.

Now I have been in this business for 15 years in March 2013 and I know many of the experienced people who work in this field, so I am very cautious about these claims of experience that are out there. I am also cautious of websites that give no information about who it is that operate or provide advocacy services - no details - no credentials, only a phone number.  So I am advocating buyer beware here.

I would highly recommend if you are looking for some help with your appeal, that you ask any service provider how many appeals that they have worked on - and ask for a way to verify this information.

I would also make sure you feel confident in who you choose to help you. With the new Social Security Tribunal coming in to place next year - it is more important than ever that your application to CPP disability as well as any appeals you make, are done by an experienced case manager who understands the legislative tenants.  Not some fly by nighter wanting to make a buck.

 

 

Tags:

Appeals

End of Year Reflections

by Allison Schmidt 19 December 2012 15:47

Well here I am again winding up another year of work at DCAC.

It has certainly been an interesting year with lots of twists and turns and certainly the major changes coming in the new year the details of which are still unknown.

I have some people that I would like to thank and send my warmest wishes out for the festive season - the registrars and staff and the Pension Appeals Board - the scheduling officer - who is always working hard to organize the scheduling of the hearings - to the staff and scheduling officers at the Review Tribunal office - and the Management and Legal Team who are always helpful when questions arise - and to the staff at CPP offices who handle all of the numerous Personal Information Requests that I send in from all over the country.

The first three months of the new year are going to be very busy with the wrap up of the existing appeals system.  The regulations for the Social Security Tribunal have not yet been released and we are all waiting for these with baited breath to see what the new system will look like.

It has been a very busy year and I am ready to break over the holiday season.

In the new year I will be bringing some additional services to DCAC which I am excited about - as well as some new staff members - and changes to the website - hang on to your hats it's going to be a fun ride I think.

So I would like to wish everyone a very Merry Christmas, a joyous Holiday Season, and Prosperity and Good Health for the New Year.

Take Care - Allison

 

Tags:

General

An update on what is a substantially gainful occupation.

by Allison Schmidt 19 December 2012 11:11

I recently added a post to the blog which discussed two cases that I appealed to the Pension Appeals Board.  Both of which dealt with; what is a substantially gainful occupation?

There was two different scenarios - June who was on a Canada Pension Plan disability who had been cut off for working - and then Lila who was appealing because she was found capable of working doing seven hours a week job sharing with another lady who ironically is on Canada Pension Plan disabiliity.  For the details on these cases please review the prior blog post.

I am happy to report, that both of these cases were successful in their appeals.

I would like to thank "Sally" at the Pension Appeals Board as the decision for June was sent within two weeks of the hearing - which is something that I have not experience before - and the favourable decision was welcomed by June and her family.

When I attended these hearings, I took with me a copy of The Adjudication Framework For Canada Pension Plan Disability Benefits: Severe Criterion for "Incapable Regularly of Pursuing any Substantially Gainful Occupation."

The point of me doing this is because I get so frustrated with the constant denial letters which quote "while you are unable to do your current job you still have the capacity to do some type of substantially gainful occupation." Or they will say - well you are working earning whatever amount (which is often well below what is considered substantially gainful) so you are not disabled according to the legislative criteria - it is just maddening.

So now these two decisions will hopefully give some reference for people who are appealing a denial decision. 

The Board state:  "I find it interesting the document submitted in Ms. Schmidt's submission entitled "The Adjudication Framework..."  On page 11 of the document it states:  The substantially gainful amount is the maximum monthly CPP retirement pension.  The annual amount is equal to twelve times the maximum monthly CPP retirement pension....  An individual who is working to the maximum capacity that his or her disability permits, and whose earnings are less than the substantially gainful amount, is not productive and is not performing.  This individual can be determined incapable of working at a substantially gainful level."

Lila was earnings for 2006 - 2011 never exceeded the substantially gainful earnings amount and for 2010 her earnins were about one third of the allowable amount - yet she was denied by the Feds because they said she was working.  Just another example of how despite guidelines being in place - they never appear to be followed.

 

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