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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.

 

What is a Substantially Gainful Occupation?

by Allison Schmidt 19 October 2012 09:20

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.

 

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