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CPP Social Security Tribunal - HRSDC Explanation of the Decision under Appeal

by Allison Schmidt 25 October 2013 10:50

Response to the Notice of Readiness by the Department (HRSDC or CPP Disability).

I have explained at length the Notice of Readiness that has to be signed by both parties to the Social Security Appeal - General Division.

I have signed and sent in several Notice of Readiness on clients and would now like to provide information about the next steps in the appeal process.

After the Social Security Tribunal received the Notice of Readiness, this was sent to Human Resources Development Canada (HRSDC) the Ministery responsible for Canada Pension Plan disability and who are a party to the appeal.

 

I have then received a letter back from the Social Security Tribunal with the following documentation.


1.  Another Notice of Readiness that has to be signed by the Appellant (the person who is appealing the decision).

2.  A signed Notice of Readiness signed by the department HRSDC.

3.  A Recommended Format of the Appeal to the Social Security Tribunal - General Division.  There are two options that the Minister would like to recommend.  They state that The Minister's position is that the appeal can proceed in writing based on the current record OR The Minister requests that an oral hearing be held for the following reasons......   I have only seen the Minister requesting the Appeal can proceed in writing based on the current record.

4.  Sometimes there is an updated Record of Earnings to provide evidence of the Minimum Qualifying Period.

5.  Then there is the HRSDC Explanation of the Decision under Appeal - which is the CPP argument about why the Appellant does not meet the criteria for CPP Disability.

 

I have seen several types of Minister's submissions that have been submitted - some are very detailed and look a little like legal documents - some are a little more informal but both address the following points:

 

A:  OVERVIEW

In this section HRSDC gives the overview of the case - they discuss that the evidence does not support the determination of disability and they note the Minimum Qualifying Period date.  They also describe the medical conditions and discuss what type of work the appellant did and when they stopped working, They summarize the main points of their argument and note why the Appellant does not meet the CPP disablity pension.

They also request that the appeal be dismissed.

 

B:  THE FACTS

In this section HRSDC talk again about the MQP and about the facts of the appeal - they note when the application was made and when and why the application was denied.  Basically in this section the sequence of the application and appeal is explained. 

 

C:  ISSUES

In this section the department states that the Issue before the Tribunal is whether the appellant has established that their condition is severe and prolonged within the meaning of the CPP on or prior to the MQP and continuously thereafter.

 

D:  LAW AND SUBMISSIONS

In this section the Minister outlines the deifintion of disability under the CPP - they describe what severe and prolonged are.

They talk abou the onus being the Appellants and state that the department is not required to prove that a claimant is capable of working.

They state that the main question is whether a claimant can prove that they suffered from a severe and prolonged disability by the expiry of their MQP and continuously thereafter. 

It is the capacity to work and not the diagnosis or the disease description that determines the severity of the disability under the CPP.

The incapacity must prevent a claimant from pursuing any substantially gainful occupation and an appellant must show that efforts at maintaining and obtaining employment have been unsuccessful by reason of a medical condition.

Medical evidence is required as is evidence of employment efforts and possibilities.

Socioeconomic factors are irrelevant to the determination of whether a claimant is disabled.

The capacity must be assessed in a real world context taking in to account age, experience, education, language proficiency and capacity for retraining.

Suffering of the claimant is not an element upon which the test of disability rests.

Financial or other hardship is not relevant to the determination of eligibility.

Incapacity not employment must be proven to be regular.  The employment, even if irregular, can be substantially gainful employment.

There is no firm demarcation between a return to work and a failed work attempt.  It is dependent upon the facts of a particular case.

The evidence does not support a finding of disability - lack of objective medical reports indicating incapacity.

There is evidence of residual capacity to work,

 

E;  FORMAT OF THE APPEAL

Here is is recommended that subject to a request for an oral hearing from the Appellant that the Minister's position is that the appeal can proceed in writing based on the current record.

 

F:  DECISION SOUGHT

The Minister here respectfully requests that this appeal be dismissed.

 

What should you do when you have received these documents.

This is your opportunity to submit your side of the case to the Social Security Tribunal member.

Firstly before you sign the new Notice of Readiness - you need to make sure you address the submission.

I would prepare a document similar to the format of the Minister,  You may agree with the Facts the Minister has outlined as that usually comes from the appeal documents and when you made your CPP application should not reallly be in dispute.

However the Minister's interpretation of how CPP disability is applied may be open to interpretation and there is a large body of decisions and tenants that can be submitted to support your appeal - if you read through this blog you will find many of these are discussed and explained.

There are also a large body of appeal decisions come down from the Pension Apppels Board which are still applicable to the interpretation of the CPP disability that you can find online - there is also the HRSDC adjudication framework and several online resources - ME/FM Action Network have an excellent resource available as do some of the legal aid clinics.

In many submissions I have seen the Feds point out sentences from the medical reports that are unfortunately not the totality of the information provided in the medical reports - if there is information missing and likely there will be - make sure you use this to rebutt the Fed's position.

When you are confident that you have submitted all the information you would like to argue your position then you can sign the Notice of Readiness.

I would also make sure that you indicate that you if the appeal cannot be settled IN YOUR FAVOUR on the record that you wish to have an in-person hearing - as I believe you have the right to be able to tell your side of the appeal - as well as describe the subjective evidence - as objective evidence is not the totality of the appeal.

 

What happens next?

When you have prepared your submission and sent off any additional information along with another signed Notice of Readiness - this then goes to the Social Security Tribunal.  At this time, they send the documents to the Department and then the Department again has an opportunity to rebutt and then they may send an addendum to their submission with another signed Notice of Readiness which will then be sent to you.  This ping pong can go back and forth until both parties sign the Notice of Readiness with no additional information or when the 365 days are up - then the hearing will be scheduled.

 

The take away.

This is a very complex process - get help with it. 

 

Allison


 

 

 

 

 

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Confirmation that only EI appeals being heard

by Allison Schmidt 08 October 2013 12:15

I had heard through the grape vine from the various people who are in the know - or who know someone who is in the know - that the only appeals that the Social Security Tribunal are hearing and processing are those related to Unemployment Insurance.  As you know, the Social Security Tribunal contains all four of the prior HRSDC tribunals - and Unemployment Insurance and Canada Pension Plan were the two streams the Social Security Tribunal are mandated to hear.

So again, I have just received confirmation that the only appeals being heard are EI appeals and I guess Summary Dismissals - which you can read about on this blog.  I know there were some Appeals Divisions hearings being heard - but the difference between those hearings and those that are waiting at the General Division is the Notice of Readiness process.

So review my blog entry about Mike and wonder how this government can get away with doing this to people who are disabled. 

Please to all the Feds who are reading this blog - if I am incorrect with my information I would really appreciate a phone call if anything needs correction that I have posted here.

 

Consequences of CPP Disability delayed..

by Allison Schmidt 08 October 2013 09:56

So far this week there have been several calls and emails to my office asking me when the client's appeal will be heard by the Social Security Tribunal.  I have no answers to give them.  In this blog entry I would like to highlight the cost to the client due to these delays. 

I have been helping a gentleman let's call him Mike.  Mike is a farmer who had an impressive record of earnings over 30 years of contributions to CPP.  He is 59 years old and due to a life time of smoking and dust exposure, Mike now has severe Chronic Obstructive Pulmonary Disease.  Mike could no longer farm so he took on lighter work as a meat cutter.  He has no additional education or training other than high school. He could no longer work due to his disability in February 2012 and applied for CPP Disability in March 2012.  Mike was denied twice - at initial and also at reconsideration and was now waiting for a hearing at the Social Security Tribunal.  I met Mike as he had contacted his local MP office and they then contacted me to see if I could help - as by this time Mike was reliant on oxygen. Mike had unfortunately racked up $30.000 in credit card debt trying to manage to keep himself and pay his rent, he had also now found himself on the Provincial disability role because he exhausted all of his credit.  I met Mike and he told me he wanted to die - I am not exaggerating. It is very difficult for me to hear this and to tell this man that he has to keep positive and that it will all work out okay. 

So I took his file, I requested some additional information from his specialist, and took the time to prepare a written case overview to explain how Mike would meet the CPP legislative tenants for disability.

The next time Mike called me, he was again in crisis. He had run out of his medication and unfortunately this drug was not covered by the Province.  He had not been taking his medication for weeks.  He was again crying and gasping for breath.  It took me a long time to calm him and I was able to get in touch with his respirologist to explain what was happening - thankfully his doctor agreed to provide him with the medication free of charge.

Then last week Mike phoned me to say that the CPP Disability has phoned and miraculously decided after 18 months that finally he did meet the criteria and he was disabled - but that he would have an onset of disability one year after he actually applied - yes they were screwing him out of a year's backpay because he was not on oxygen until March of this year.  So Mike who has struggled to keep his head above water, to do the honourable thing and pay his credit card bills - which he had relied upon to keep him for the 18 months it has taken CPP to decide he is finally disabled - has now resulted in him getting four months of retro payments out of them.

So I went to see Mike yesterday to talk to him about his options.  Mike again was crying and telling me that he has to do what he never dreamed of doing - declaring bankruptcy. This morning my email box is full of people wondering why it is taking so long to get an appeal.

Okay I have no idea how to illuminate these issues other than to hope someone somewhere is reading this blog.  If you need help call the office.  Allison

 

CPP disability denied and you need to request Reconsideration

by Allison Schmidt 02 October 2013 10:25

If you have been denied CPP disability and you need to request a reconsideration, this has to be done before your 90 day appeal period expires.  I would send off a letter of appeal stating the following:

I do not agree with your decision to deny my CPP disability benefits.  I am disabled according to the legislative criteria and I wish to request a reconsideration.

Additional information to support my appeal may be forthcoming and I request that your office contact me to discuss this appeal prior to making a decision to ensure that I have had the opportunity to submit all the information I can to support my reconsideration appeal.

Make sure you put your Social Security Number on this letter and if possible I would send this letter in some traceable way - registered, express post etc. or I would drop it off to a Service Canada office and get receipt that you submitted this appeal letter.  Within a month you should receive a letter from CPP disability acknowledging that they have received your appeal. Make sure you watch out for this - and if you have not received a letter check in to it.

I wanted to talk about some self-help strategies to increase your chances of success.  Make sure you have done the following:

  • Obtained and reviewed your Canada Pension Plan disability file.  You can get a copy of your file by completing the Personal Information Request form which you will find in the Downloads section of this website.  You will need to send this form in to the CPP regional office who is adjudicating your claim.
  • Understand why CPP Disability are denying your claim.  I have posted a lot of information on the blog about why CPP disability is usually denied - and how to understand the CPP disability language.  If you understand the reasons why CPP disability have denied your claim then you will better understand how to put together your appeal. 
  • Find out what your MQP is?  Minimum Qualifying Dates are extremely important and you need to review your file to see if the medical information that has been submitted provides evidence around the time of the MQP.
  • Once you have reviewed your file, it is important to decide what additional supportive documentation you may need to get and who to get it from.  Make contact with your doctor and any other people you might want to get letters from.  Most doctors charge money to obtain the evidence you need to support your appeal.  It is not helpful to get a doctor to write that your disability is "severe and prolonged".
  • Understand your responsibility to provide information to support your appeal.  Understand how CPP disability is determined. Read through the blogs and the appeals guide on this website.
  • Make sure all the information you have collected will help with your appeal. Sometimes clients get discouraged because their doctors write that they may be able to do "some light work" but keep in mind that the work has to be regular and substantially gainful.  It is a good idea to speak to your doctor about their thoughts on your capacity to work before obtaining a written report.
  • Your written submission should address when you stopped working and why you think you are unable to work in any job because of your disability.  It should discuss if you have tried to return to work and failed due to your medical condition, and if you looked for work, how your disability prevented you from finding a job.  The submission should outline your functional limitations.

I suggest that given the state of the new appeal process at the Social Security Tribunal and the delays it appears many appellants will be facing, I strongly suggest that if you have been denied your CPP disability benefits that you get some professional advice to put together your reconsideration appeal in the hopes that you avoid any further delay.

Speaking of the CPP Social Security Tribunal, this week (I know it is only Wednesday) has been frustrating.  I have got calls from people who have submitted their appeals to the Social Security Tribunal in June or before and their appeals have not been acknowledged.  I cannot understand why it takes three months for this new tribunal to acknowledge receipt of an appeal - also there are many files that I am waiting for case books from the Social Security Tribunal and it is taking months - how can appeals be prepared without the information I need to work on the file?  I just think the right hand does not know what the left is doing.  I am not slagging the staff - it is not their fault.  I am simply stating that this system as it currently stands is not working too well and something needs to change - more staff, more training, more efficiency -something.

Have a good week.

 

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