The Link between CPP and LTD Disability Insurance

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

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

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!

 

Unpredictability of the Department

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

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...

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

 

 

Describing Subjective Conditions

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

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

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.

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."