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Statistics of Reconsiderations

by Allison Schmidt 07 January 2015 15:57

Yesterday I received information concerning Reconsideration appeals to Canada Pension Plan.  If you are a follower of the blog, you will have read my complaints about the stupid denials I have been receiving from certain regional offices.  I decided to request information to determine whether the trend of denials could be supported by actual figures and that is the what I received yesterday.

In 2013 -2014 fiscal year, there were 13,841 requests for reconsideration received by Employment and Skills Development Canada.  This is your first level of appeal.

Out of the 13,841 appeals received 8,564 were denied - this is a 61% denial rate.

Now that is not really surprising to me because that is what the denial rate seems to hover around.

What is surprising to me, is that in the Ontario region, they received 7,586 requests for appeals and they maintained the denial of 5,216 of them.  That is a whopping 68 percent denial rate.

So back to the stupid denials.  Many of those DCAC has received in the last several months, the Medical Adjudicator - has not waited for the additional information they were advised was being submitted in order to add more support to the appeal.  They have simply denied them without waiting, without contacting the client, without contacting anyone to ensure that the client is ready to proceed with the appeal.  And I do not have to tell you where these denials are coming from - you guessed it - CHATHAM ONTARIO.

In documents I have reviewed, it is noted that part of the Federal Government's response to reducing the horrendus 11,000 appeal back log at the Social Security Tribunal is to ensure proper adjudication at the administrative level - that is the reconsideration level.  So may I suggest to the Ministry that they check this issue out.  The client I am looking at right now there is no indication in the file that the client was even phoned to ask if there was additional information and despite a letter that had been sent to contact my office, there was no phone call to me either.  The decision to deny this benefit was made on November 28th this was despite a phone call to Service Canada to advise them that additional infomration was forthcoming and was sent on December 4th.  Is there miscommunication between the Service Canada office and the CPP Disability office?

A.L. Medical Adjudicator in Chatham office, that is just not cool - do your job - develop the file - it is not at all fair to this client who will now be stuck in the SST back log.

Tags:

Appeals

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

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

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.

 

My Committment to You

by Allison Schmidt 29 August 2012 13:54

Since the announcement of the new appeals system was made by the Harper government, I have been feeling very discouraged. The rug that has been under my feet and the system that I am familiar with, trust, and know well is changing significantly.

Change is hard.

I have worried about what the implications will be to the people who are currently in the appeals system, as well as the people who find themselves applying for CPP disability. I have worried everyday about what to do - and how I can help.

There is still a lot of waiting to be done as there is still no indication of what the new system will look like.

What I do know for sure, is that I am an expert in my field, the CPP tenants are not going to change, only the format of the appeal.

So my committment to you is that I am going to diligently work to understand the new processes, that I am going to figure out a way to case - manage an appeal, and I am going to ensure that any information I find out about the transition to the new Social Security Tribunal will be shared on this website so we can all be prepared together. I believe that knowledge is power and the more knowledge I can share, the better prepared we will all be.

Let's face it - the Feds cannot deny every case that appears before them - and I am going to continue to work hard to ensure that DCAC remains the most successful CPP case-management service in Canada. That is my goal.

 

Tags:

Appeals

I HEART the Pension Appeals Board

by Allison Schmidt 29 May 2012 13:09

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.

 

 

My week in review

by Allison Schmidt 27 January 2012 12:41

More complaints I am afraid......

Firstly I am finding that the wait times for processing CPP benefits is increasing - people are waiting for at least five months to hear a decision on their applications or reconsiderations.  I do not have to tell you about the state of most families' finances and how many rely on a double income in order to make the mortgage and whatever other obligations they have. I cannot for the life of me understand how putting individuals through the financial stress of repeated denial of disability benefits can help a person's medical condition.  Add stress, depression, frustration, marital conflict, guilt, and a whole host of other issues to the mix and you are certainly not helping a client improve.  It is so frustrating for me to see and hear first hand the toll the length of processing times and denial rates are having on good decent Canadian people who face life changing disabilities. It sickens me. And the number of calls and emails I get each week, each person expressing their despair and frustration with the system is a challenge.  My advice is to carry on - keep positive - and keep up the fight against the unfair denials - because at the end of the day - I believe that most people have legitimate claims - why else would they waste their time and cause anguish to themselves and their families for the fun of dealing with a bureacratic system. It is not logical.

I have also had my fill of bad hearings. I am not sure if Panel members feel rushed or overwhelmed with the amount of information they have to review, or whether they are burnt out with the number of appeals they are sitting on because of increased hearing numbers or because the amount of appeals are increasing - but lately I have not felt that all of the Panel members are prepared - and I also wonder if they are reading the files.  Again a caveat - many many members have done their homework and are ready - but some alas I feel are not.  I have had any excellent relationship with the Review Tribunal office but I feel this whole issue of documentation collation and page numbering (see prior rant) is not doing the panel members, the representatives, and most importantly the appellant any service at all. And this could be the problem and vibe that I am sensing in recent weeks. You would think that simple page numbering would not make a big difference but it does.

Maybe I am just frustrated with the whole system period.

I did have some good news this week. A client lets call him Roger won his appeal. He has had quite a time of it - firstly a bone head Panel member - made in my opinion a really stupid decision on the last hearing - it was postponed. He waited another 10 months in order to get the second hearing - with no resolution to the issues raised in the first hearing - but any way - he was waiting for a treatment - a treatment that has a waiting list of over two years - so what he is supposed to wait that length of time to see if this possible treatment may help his medical condition - I think not.  I must add that in the documents it stated that this proposed treatment was something that the doctors "hoped" might help - it was not like surgery or something that had a good chance of success - so in the meantime - Roger lost his house that he had paid for  over 25 years of hard work - his wife left him - and he is now housebound and mired in chronic pain and anxiety - an illustration of what happens to real good person - a person who was described by his previous employer as a "working-machine" - because of this system he found himself in - through no fault of their own. Anyway I just spoke with Roger and I am so hopeful that the feds do not appeal this decision - he has been through enough. Thank goodness the new panel saw Roger's reality and did not postpone the hearing again.  Even though I disagreed strongly with the first Review Tribunal panel if they decide they want to adjourn well good luck for an appellant. Again I find complaints are challenging for me - I know the Review Tribunal are down members and I worry about coming across a member I complained about in another matter.

Anyway that is enough for a Friday afternoon. Take care and hang in there. Allison

 

Tags:

Appeals

The Link between CPP and LTD Disability Insurance

by Allison Schmidt 03 August 2011 12:12

I often receive phone calls from individuals who are applying for CPP disability at the request of their private insurance companies. The insurance companies usually require that their clients make application to CPP disability, as CPP is first payer on most disability insurance policies (also many WCB programs, Provincial disability programs, Auto insurance programs etc.) When these individuals are denied CPP, the insurance companies require that they appeal and often I get called because there is a level of fear that if the client is denied again, the insurance company will also deny them as well. Most insurance companies do not provide the resources their clients need to handle these appeals, and if I may be frank, many of the disability insurance adjudicators do not understand themselves the procedure a client has to go through when appealing the denial of CPP disability benefits.

So it is a no brainer that I get panicked calls from private insurance clients who are now facing CPP appeals and the added stress and worry that because CPP has denied them, that their insurance company may shortly do the same.

I am not trying to malign insurance companies here, as getting their clients CPP disability saves them a large amount of money over the life span of a claim, so they are entirely motivated to get their clients on CPP disability. I recently made a presentation to the disability adjudicators at a large insurance company and at the end of the presentation it was clear to me that the adjudicators now had a better appreciation and understanding of the complexity of the CPP disability program. Although the adjudicators had received "outreach services" from the Feds - I believe sorry to say - their presentations may not accurately portray what is really going on in the trenches!

As I have said previously, CPP disability benefit is viewed as the "first payer" by most private insurance plans. This means that most insurance plans take CPP disability benefits into account when calculating a claimant's entitlement to disability benefits. Most private long-term disability plans require a claimant to apply for CPP disability and to appeal a denial. Many agreements also indicate that noncompliance with these terms can result in withholding or reduction of long term disability benefits by the estimated amount of the CPP disability benefit. This is standard practice and part of standard form agreements of most private insurance policies.

If you have been denied a CPP disability benefit and you have been asked to appeal by the insurance company, then make sure you follow their recommendations. I believe most insurance companies are aware that CPP disability has a fairly measurable denial rate and so they may expect that you will denied on application. Do not be fearful of the denial from CPP disability. Next make sure you send in for your reconsideration within the 90 day appeal period and ask your adjudicator if the insurance company has some resources available that can help with your appeal. Also ask the insurance company if they can provide you with the medical information that is on your file - that way you do not have to pay for photocopying charges from your doctor's office. Most insurance companies have collected medical evidence on you in order to support your LTD claim - so as collecting CPP disability is in their best interests - I really think they should help you out by providing you with this information. If there is an issue with this I would ask for a supervisor and explain your motivation for wanting to collect this information.

Also, if there are insurance company staff who read this blog - I would like to ask them to consider having someone who works in the trenches, explain to them and their disability adjudicators the reality of managing a CPP disability appeal so they can help their clients secure the benefits that will offset their bottom lines.

Often I am asked by someone who has to appeal the denial of a CPP disability benefit who is receiving LTD private insurance what is the point to receiving CPP disability?

Although the income received from a CPP disability benefit is taxable and reduces your non-taxable long-term disability benefit, there are advantages to receiving a CPP disability pension:

· it places a freeze on your financial earnings as of the date of disability. This prevents CPP from establishing a record of zero of nil earnings to average into your future retirement or disability income calculation for the period you are disabled from working and not contributing to the CPP fund. Without this earning freeze your future entitlement to CPP benefits, including retirement benefits could be adversely affected.

· there is a federal tax credit available when a individual completes and submits the Disability Tax Credit Certificate (Form T2201) with their income tax.

· if you are in receipt of CPP disability benefits at the time of your death, CPP survivor benefits will be paid at the full level as though you have been working until the date of your death.

· CPP benefits provide a cost of living allowance every year. Any COLA increases will not be deducted from long-term disability benefits.

· if you have children they may be eligible for a children's benefit as long as you are receiving a CPP disability benefit. CPP pays benefits for children if they are:

a. under 18 years of age. These benefits are paid to the individual who has the care and custody of the children; or,

b. between the ages of 18 and 25 years old and attending school on a full-time basis. This benefit is paid directly to the child

 

 

 

 

MQP - The Magic Date

by Allison Schmidt 29 July 2011 10:24

Hello Everyone,

Yes I am still working here at the Clinic. It has been some time since I have been able to blog. Many things have happened and I have case managed a lot of files in the last six months that have been interesting to say the least!

My reason for blogging today?

Well in the mail today I received two files that were sent to me for review - and unfortunately both of these cases were rightly denied based on what are late MQPs.

A MQP or Minimum Qualifying Period date - is what I like to call THE MAGIC DATE. It is critically important to the adjudication of a CPP disability claim.

You know you have to be found "severe and prolonged" - but you also have to be found severe and prolonged at the time of the MQP.

If you have a late MQP your denial letter may say something like this -

"Unfortunately, you do not have enough earnings and contributions. However, Canada Pension Plan has a late application provision that allows us to consider if you had a disabilty that was both severe and prolonged and has been continuous since you made enough contributions to the CPP to qualify. In your case, you had made enough contributions to qualify until December of a given year"

Okay like I said this is a magic date and the decision makers have to find the applicant disabled as of that time and continuously to present - the lady whose file I reviewed this morning had an MQP of December 1997. This means she has to be found disabled from December 1997 until present. This is tough because it would require 14 years of continuous medical evidence to support this claim - sometimes this is easy to do - there may have been an accident or medical condition that has been clearly related to that time period - but most times I will say with a late MQP like that, is a challenge to establish disability.

Sometimes, there is a late MQP, and then a person tries to work after that MQP, and the feds deny because they say there is evidence of work capacity after the MQP.

This happened recently with a lady called Cindy. Cindy is very young 29 years - but she had been chronically sick with chrons since she was 19 years old - and I mean sick - surgeries, infections, abdominal pain, fatigue, malnutrition -the medical evidence was pretty conclusive - but the problem in Cindy's file was that she continued to try and work, and try to go to school, and try to do all those things that a young woman wants to do.

Cindy had earnings after her MQP - the Feds denied her because of this - they realized she was disabled now - but she was not disabled at the time of her MQP. Well her earnings were substantially gainful but she only lasted a short period of time - six months - before her chrons kicked up and she was hospitalized again - not to mention that throughout her work she repeatedly had to decline work shifts and often had to leave work because she was so sick - I really admired Cindy cause she continually tried to work and she felt so guilty because her parents were continually having to support her financially. I do not know what the results of the appeal will be but I will let you all know.

So you can see here how important the MQP is - it really is a magic date - it is like when your coverage expires like an insurance policy.

The calculation of the MQP is very complicated and there are so many different ways the Feds calculate the MQP - all different requirements and legislative tenants go into the calculation of the MQP. But I just wanted to get it out there that the MQP is critical in the adjudication of a claim.

In the files that I reviewed this morning - the applicant went through the hearings without any understanding of the MQP - bad move.

If you have a hearing or your are appealing the denial of a CPP disability benefit - then make sure you know the MQP. If you have any questions about this send me an email. One thing I will tell you - if you have an MQP say December 2006 and you have only submitted medical evidence from 2009 forward then you have not met your responsibility to establish your disability at the time of your MQP. So that means you will need to submit medical information from December 2006 in order to establish that you were disabled at this time.

Hopefully this has all made sense to you!

For those of you who want further reading on this subject - the Office of the Commissioner of Review Tribunals has a good explanation of the MQP calculation rules and the link for that is

www.ocrt-bctr.gc.ca/hwt-cmm/cpp-rpc/req-cond-eng.html#more_MQP

 

 

 

 

Reassessments

by Allison Schmidt 03 February 2011 13:57

I am still getting a lot of calls from people who are being reassessed - some are grudge reports to CPP from ex spouses or crappy neighbours, but some are as a result of reported earnings.

Please, if you are trying to work - tell CPP this - it will avoid all of this hassle as well as perhaps avoid overpayments. There are allowable earnings provisions under the Canada Pension Plan and I will find information and post it on the blog - I may even contact a adjudicator in the reasessment department at CPP and see what she says people should do if they want to try to work - or they are working.

The point I am trying to get across is that the Feds will find out if you are working and you have not reported it to CPP.  There is some misconception out there that if you are on CPP you cannot work an hour - I was in Ottawa this weekend at the Council of Canadians with Disabiities meeting with representatives from the disability community from across the country and this came up - that you cannot work an hour and collect CPP - it just baffles me that there are is so much misinformation and rumour out there!

Anyhow, back to my point here - if you are working or if you want to work get in touch with me and I can give you some advice or directiion on how to proceed. If you have been reassessed the appeals are different - as I have said before the feds have to prove that you have the capacity to work - they cannot dispute their initial decision that you qualified for CPP, they can only argue that you have regained capacity - and unlike any other appeal to CPP, the onus or responsibility to establish you have regained capacity is theirs to meet. See what I mean - these appeals are not the usual run of the mill.

It is a fearful time for some people when CPP is reassessing your eligibility. Hang in there - and watch what you say and do to your ex spouses and neighbours!

 

Tags:

Appeals

Unpredictability of the Department

by Allison Schmidt 24 September 2010 13:47

This week I attended Pension Appeals Board hearings. This level of appeal is held after you have been denied a Canada Pension Plan benefit at Review Tribunal. The appeal rights are not automatic - that means you have to request the Pension Appeals Board permission or "leave" to hear the case. This one particular client of mine - let's call her Martha - well she had applied for CPP disability in March 2007 and was finally, in September 2010, having her appeal heard. Martha was very apprehensive about this appeal - she is a First Nations woman who has  a very limited education because until she lived in the city, lived in her First Nation quite traditionally.

Martha had a lot of health problems; Fibromyalgia, Osteoarthritis, Hyperlipidemia, Shortness of Breath, Obesity, and most prevalently Diabetes.  If anyone is familiar with the news in Canada, you will be aware of the high rates of obesity in our country, but also with the high rates of diabetes in the First Nations and Aboriginal communities.

I feel that Martha really lacked an understanding of her health - she never really had a doctor who explained to her the nature of her conditions - no judgment on doctors they are swamped - and also most sadly - she was on welfare and unable to afford to eat well.  I have read that poverty is strongly associated with diabetes.

Martha had a Grade 5 education. She had gotten by on labour jobs and really had a good work history - this was not a woman who rode the gravy train.

It took all of my efforts to prepare Martha for the hearing she was about to undertake - you got to imagine how intimidating this must have been for Martha to speak before "high peoples" as she called them. It only reminded me how necessary my work can be because without help I do not think this woman would have been able to do the paper work just to get a hearing - she was functionally illiterate.

Anyway, Martha is a sweet lady - very shy but she trusted me so we had a good rapport and like I said I was able to get her through the first part of her hearing.

What happened you wonder? Well half way through the hearing the Feds settled - yep that's right - they caved. Now I can tell you in my almost thirteen years of working in the field - this is only the second time this has happened during a hearing.

Why am I telling you this story? Well, firstly  - how do people who do not have help and who are so disadvantaged in education and socio-economic status make it with these  complicated appeals - and two - do not ever try and predict what the Feds are going to do!

Things are plodding along here for me in the office. The phone has been busy and if you have called and I have not spoken to you yet - please hang in there. 

 

A Reassessment Case and Vocational Rehab

by Allison Schmidt 26 August 2010 10:39

I was away working yesturday and I would like to share this case with you. I am deliberately being vague with where I was because I would like to share information with you on the down low!  Smile

This case was a reassessment case - the Minister's representative came from the reassessment department who advised me that this department is really grown in staff and workload which indicates to me that the Feds are reviewing a lot more  CPP disability claimants.  Now do not get me wrong - I am all for kicking off people who are working under the table and claiming disability - if you follow  this blog - you know that I get angry when I hear that people play the system as there are so many legitimate people who are denied and really struggle financially and with the appeals process - sometimes at very great costs to their personal lives. So if you think you are pulling a fast one on the Feds - you best start watching your back - some people have contacted me with overpayments in the 50K range.

By the same token, I can also understand with the current CPP benefit rates, why some people feel they have no choice but to supplement their CPP benefit - that is why the Feds have the allowable earnings provision - also just FYI - in this case that I am going to talk about - the allowable earnings provision was not applied to the overpayment because the client did not advise CPP disability that he was working.  Apparently, (I am not 100% sure on this one but I will find out for you) - if you do not advise the Feds you are doing some work then the allowable earnings amount will not be applied to reduce any overpayment.

I also recently had a email from a man let's call him Sean Smile who asked some questions about Vocational Rehabilitation services offered by CPP and suggested that I blog about this topic.

Okay my client let's call him Ken. Ken was a rural man and supplemented his self-employment by working in construction.  In 2005, he was diagnosed with relapsing-remitting Multiple Sclerosis. After diagnosis he applied for CPP disability and was approved at reconsideration.  After diagnosis, Ken who had always been the "go-to-guy" in his community, fell into a depression.  His doctor thought that if Ken tried to get out in the community and find something he could do, his mood would improve. So Ken decided he was going to contact CPP disabiity and ask them about vocational services. Ken advised that the CPP staff who called him on this program were extremely rude to him and he felt immediately anxious as to the continuing status of his benefit.  After some time and no support from CPP, Ken made  use of the rehabilitation services of his provincial disability organization. They tried to get him typing and had him do some job shadowing - but based on his limitations - they felt that he should be referred on to an agency that found supportive employment and subsidized positions for people with disabilities.  Now this agency was able to find a couple of different positions for Ken and ultimately he was successful in securing a position. 

Now Ken was very happy - he felt he had a purpose - and he felt he was being useful - his self-esteem improved and he was really trying to keep on going.  However, four months into this position (which was entirely sedentary) his health began to decline rapidly - but Ken wanted to keep going so he relied on medication to keep him alert, medication to reduce his pain, and this dependancy became a viscious circle - he could not sleep, he could not concentrate - he could not keep up with the productivity and accuracy level demands of his position, and what started as a good thing for Ken - wound up costing his health dearly.  But all Ken wanted to do was keep on working.  His lack of clarity into the decline in his health and the dependence on medication and the personal costs to his family became secondary to trying to keep on working.  Finally, some 12 months after starting his work experience Ken had no choice but to quit due to medical reasons.

Okay, side story to this case, Ken tried to get in touch with CPP to advise them about his work trial - for some reason the Feds did not get with the program - and Ken kept receiving disability benefits.  After his frustration with dealing with the Feds, Ken contacted his provincial MS Society who told him that CPP and Revenue Canada are connected, so CPP would indeed know about his work activity.  So Ken thinks that CPP must know and he kept receiving his disability benefit.  Okay the MS Society got it partially wrong - yes the Feds can find out through Revenue Canada if a disabiity recipient reports income, this information is not received until you file your taxes - so the Feds do not instantly know that someone is working - which is why Ken had an overpayment - and also why the allowable earnings provision was not applied to the overpayment. He had a bad experience all around - there was lack of information, and to be frank he received some bad advice.

So I attended his Review Tribunal yesturday.  I think the hearing went well - once you heard Ken's story you could understand how this all went down - and I get so annoyed that all the information is available to the adjudicators in the reassessment department if only they would ask - if only they would conduct a review of the file that does not just rely on the reporting of  T4 income - if only they just read the information in this file -  all of this stress and hardship could be avoided - instead it appeared to me that all this "reassessment" was, was another attempt to get another person off the "payroll" The facts were all available to me, I just took the time to find them out. Sometimes I think I am being really harsh on the Feds, but I am not telling you anything that is not the truth, and I think there are good people in the program - but why are there so many good Canadian people getting the run around and all this hassle?

The gentleman who recently emailed me and asked me if CPP provided meaningful rehabilitation services - take what you get from this blog and think hard. To be fair, I only hear the problems and not the good things about any programs and services that work well. If any one has had a good experience I would really love to hear from you.Wink

Bye for now. Allison

 

 

Chronic Back Pain...

by Allison Schmidt 19 June 2010 12:44

I must apologize - it's been a while since I have had the time to blog. I have been travelling doing appeals out here in the West. In late May I attended four appeals - all men - and all different types of back injuries. Chronic Pain, Mechanical Back Pain, Low Back Pain, whatever you want to diagnose it as - has its challenges when trying to establish disability under the legislation.  The appellants were all different - the circumstances all unique - but the underlying issues were that none of them could work due to the pain and limited mobility they experienced.

Often times, there is argument by the Feds, that there is no objective information to substantiate the appeal.  Sometimes, they argue a Pension Appeals Board case that states that Back Pain is due to activity intolerance, or deconditioning.  This seems to be a favourite case of the Fed's that I have been presented at the various levels of appeals - http://www.pab-cap.gc.ca/english/docs/2007/cp24738e.web.pdf

Now keep in mind that this is only one case - and as we all know - there are cases that can support a claim for chronic back pain. I would just like to post this case so that you can be prepared  - as this seems to be the case de jour at the moment.

I will agree that chronic back pain, or myofascial pain, or chronic pain syndrome are challenging cases to establish eligibility.  The most successful appellants have done all that they can to mitigate their disability - they have gone to chronic pain clinics, they have tried to return to work in some capacity - if some residual capacity exists - they have tried everything they can think off to get back on their feet and back to work.

In these cases, The Feds will argue that there is no objective evidence - but remember objective evidence - is only one part of the overall picture.  Subjective evidence can be considered in the totality of the evidence presented to the Feds.  Credibility of the appellant goes a long way when assessing the weight of subjective evidence.  Also, chronic pain is often diagnosed in the absence of objective evidence. Here are some of the cases that I have been involved that may help:

http://www.pab-cap.gc.ca/english/docs/2009/cp26006e.web.pdf

http://www.pab-cap.gc.ca/english/docs/2009/cp26189e.web.pdf

http://www.pab-cap.gc.ca/english/docs/2005/cp22721-e.pdf

http://www.pab-cap.gc.ca/english/docs/2008/cp25115e.web.pdf

If you have any questions, please contact me at info@dcac.ca

 

 

Tags:

Appeals

Describing Subjective Conditions

by Allison Schmidt 08 May 2010 11:10

When an appellant has a disability condition such as chronic pain, chronic fatigue, or depression, it is difficult to describe the subjective symptoms that one may experience. 

I recently had a case with a client who has Chronic Fatigue Syndrome.  This client, let's call him John, was in his late forties and had been unable to work due to his condition for approximately four years.  He had gone through a process of elimination with his physicians and specialists to see if there was an alternative illness causing his chronic fatigue which all came up negative. 

He was also referred to a Psychiatrist who specialized in Chronic Fatigue Syndrome and Fibromyalgia.  The reason why I am blogging about his particular case is due to this medical report

Saying one is simply fatigued does not really describe the condition - and this doctor quoted five variants of fatigue as identified in a recent scholarly article by Jason et al.  I did a google search and found a link to this article http://www.ncbi.nlm.nih.gov/pubmed/20185398?dopt=Abstract

When presenting a chronic fatigue case to a Review Tribunal it might be helpful to discuss each of these five variants of fatigue.  These are some of the examples we used in John's case -

Post-exertional Fatigue  - the more that John did, the longer it takes for him to recover, he has to pace himself with his activities, if he does an activity he has to rest after this activity. I often hear clients say if they do something they will "pay" for it later. I think it is probably better to give examples - like how does one "pay" - increased fatigue, increased pain, would be a more appropriate way to describe this.

Brain Fog Fatigue - John described this type of fatigue as being in the "twilight zone" - he was unable to take in information or react to outside stimulus - he talked about how hard it was to him to follow a story line in a book, and how it was difficult to arrange his thoughts.  When he was experiencing this type of fatigue he was unable to focus on anything.

Flu-like Fatigue - John described this type of fatigue as that he "just feels ill"

Energy Fatigue - this was described by John as him feeling okay and then something happens to "pull the plug" and he feels his energy draining away.  If this happens, his need to rest is immediate.

Wired Fatigue - John described this aspect of fatigue as not really making sense to him in that when he seems to get really really tired, he gets "wired" by which he meant he was hyper - and that this was the hardest aspect of his fatigue to manage.

Some of the other ways that John described his condition was that he was irritable, and that he could not tolerate noise especially in the morning, that he ability to deal with money and numbers is impaired, that more than two people at a time is too stressful for John to manage.

John was successful with his appeal and the Panel considered the following factors - he was credible, he had a strong work history and attachment to the work force, that John's evidence at Review Tribunal gave them a clear idea as to the severity of his condition, that the Panel was impressed with John's diligence to  find the appropriate diagnosis and treatment (efforts at mitigation) and that he had pursued treatment options that were recommmended by all the physicians to whom he was referred to, that it was not reasonable for him to try alternative employment (Inclima - if evidence of work capacity) and that his symptoms are unpredictable, which would make regular attendance at a place of employment either difficult or impossible - there was no evidence of functional overlay (ie: malingering, secondary gain). 

I hope this helps clients who have any subjective symptoms to understand the importance of trying to quantify these symptoms to help the Panel gain a clear idea of the severity of your condition.

 

Appealing within your 90 days

by Allison Schmidt 05 May 2010 11:42

If you are denied CPP disability benefits please make sure that you appeal within your 90 day period.

For initial denials to Canada Pension Plan when you are requesting a reconsideration, I would suggest the following:

I have received your letter dated _________ denying my application for Canada Pension Plan disability benefits.  I wish to request a reconsideration of this decision.  I do not agree with your decision and believe I do meet the legislative criteria of Canada Pension Plan disability benefits.

Additional information may be forthcoming.

This will advise the Feds that you are wanting to appeal - Make sure you include your Social Insurance Number.

The same letter can be sent to the Review Tribunal office. 

If these appeal letters are sent, it will allow you time to collect additional information to support your appeal and also to have a professional review your file.

If you have been denied at Review Tribunal and have to appeal to the Pension Appeals Board this is slightly more complicated. Please contact a professional for further information.

Please people maintain your 90 days.

Reasons People are Denied CPP disability - Part Two

by Allison Schmidt 01 May 2010 13:34

Another common reason why HRSDC denies Canada Pension Plan disability benefits is to do with the Late Applicant Provision.

When a person who becomes disabled and does not apply for CPP disability soon after they become disabled, they may not meet the four out of six year contribution test. However, there is a Late Application Provision which can be applied in these types of situation. 

The late application provision helps people who did not apply for CPP disability because HRSDC will look at their contributions to CPP to see when they last paid in  enough to qualify for benefits.  For example, if someone has enough contributions to the plan from 1988 - 2002 (but not after that date) the Minimum Qualifying Period rules would state that under the Late Application Provision they would need to be found disabled by December 31, 2004.

Yes it is complicated, but I want you to get the jist of what this means.

In this situation, you would have to establish that you have been disabled according to the legislative criteria since December 31, 2004 and continuously to present.

Now sometimes the Feds say, you have a MQP of December 2004 but you have earnings after this date.  Often clients try to return to work and perhaps this attempt fails, but you have earnings listed in your Record of Earnings, or sometimes clients might try to remain at work but their earnings are not substantially gainful, but still the Feds will say that you have contributions after your Minimum Qualifying Period - therefore you are denied.  There might be dangling years - say one time you might try to work and only last six months - many years after you have become disabled.

I hope you get the message here that just because you have some earnings after your MQP that this does not automatically disallow your claim.  This issue needs to be flushed out by someone with the knowledge to do so - do not just rely on the determination of HRSDC.

A typical denial letter using the Late Application Provision will state - "While you have not been able to return to your previous work, we have concluded that you should have been able to do some type of work since December 2004."

This happened to a client of mine - let's call her Sally.  Sally had chronic depression and her doctor noted that in 2005 after months of treatment, decided she would try to return to working a day or two a week. Sally was only able to last at this work for five months before she decompensated and the stress of work exacerbated her recovery.  She was denied because the Feds said she worked after her Minimum Qualifying Period date of December 2004, therefore she showed capacity.  Yet she stopped working in 2002, she went through years of treatment, she tried to return to work one time and failed, and she was still disabled to present. We won this appeal, but you can see how if you are not aware of these technical rules it can cause confusion and acceptance of a denial that might not be valid.

So if you are facing this type of situation please get it checked out by a professional who knows the rules of the game. Bye for Now.

 

Good Days versus Bad Days - Predictability is the essence.

by Allison Schmidt 22 April 2010 10:27

One of the tenants of the Canada Pension Plan definition of disability is that the Appellant must be "incapable of regularly pursuing any substantially gainful occupation.

Remember this - Predictability is the essence of Regularity.

My client Bill had chronic fatigue.  The Tribunal in their decision found that Bill's evidence was credible and sincere.  The Review Tribunal accepted that he could no longer work due to the multiple effects of chronic fatigue, arthritic pain, and a general lack of energy.

The Minister argued that he still had capacity to work because he had "some good days".

The Review Tribunal found that the Appellant having "good days and bad days" did not equate to his ability to seek and maintain employment because he would not be predictable.

Chandler v. MHRD CP 4040 stated that "despite brief periods of work capacity, the unpredictability of the Appellant's chronic fatigue and pain flare-ups and his need for frequent rests, rendered him incapable of regularly maintaining any substantially gainful occupation in the real world."

 

Has CPP cut off your disability benefits? What do you need to know about reassessments.

by Allison Schmidt 14 April 2010 12:36

I have received a lot of calls surrounding the issue of reassessment. These are CPP disability recipients who are being reassessed by HRSDC to see if they still qualify for disability benefits.

Unfortunately, I receive a lot of calls in my office from individuals who have been working while collecting a CPP disability benefit, who are now facing significant overpayments, and who want me to do something about it.  Nothing frosts me more. Believe me, if you are working at a significant level while collecting CPP disability eventually you will be caught - word to the wise. 

And then there are individuals who try to do some work and they are cut off. My client let's call her Sue comes to mind.

Sue had been in receipt of CPP disability for approximately 10 years. She lived in cottage country. She had a large plot of land and she had a garden plot in which she grew vegetables in season. Over the summer months - she put a stall at the end of her driveway and she sold new potatoes and vegetables to the cottage crowd. She also was an artisan and as a hobby over the winter months she painted. She also sold some of these crafts at the end of her driveway.

A disgruntled neighbour who wanted to get even over a prior neighbourhood incident -  reported that she was "working" to Canada Pension Plan.

CPP disability started to investigate Sue's earnings with Canada Revenue Agency and soon found that these earnings were insignificant - less than $1500 per year - and well below the allowable earnings provision. Okay, so legitimately they were concerned how Sue had the functional capacity to "work" a garden. Sue submitted letters from her neighbours and family members supporting that she was not responsible for any physical work. They also wondered how she was capable of sitting at a stall all day - to which Sue provided evidence stating that her "customers" were regulars - who she had known for some time - and who called on her home if she was not in the stall - and that she also heard cars as they came to her driveway.

In order to develop the file, Canada Pension Plan sent her for a Functional Capacity Evaluation. This conveniently came back stating that she was capable of sedentary work - however - the report also said that her sedentary capacity was not consistent, that she had chronic pain, and a whole host of other comments that tended to mitigate the comment that she was capable of sedentary work.

Sue ended up having to appeal to the Office of The Commissioner of Review Tribunals - some 18 months after CPP cut her off - she had her hearing. Sue had to go on Social Services in order to survive.

When there is a reassessment hearing the onus to establish a client is NOT DISABLED rests with The Minister. That means HRSDC has to establish that the CPP recipient is capable of regularly pursuing a substantially gainful occupation. HRSDC also has to establish this on the balance of probabilites using the totality of the information on file, that the appellant is no longer disabled at the time the benefits were terminated.  The Minister cannot argue that the decision to allow the CPP benefits on application was incorrect - they cannot vary a prior decision confirming a claimant's eligibility.

The Review Tribunal found in favour of Sue, it was pretty obvious really;  a no brainer. The Feds had the opportunity to review the same information as the Review Tribunal yet they still maintained their position that the client was working.

There is an allowable earnings provision for individuals who are CPP recipients - stay tuned - I will tell you all about it.

 

 

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