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.
Over the years that I have been representing clients appealing CPP denials, the issues that the decision makers focus on, swing back and forth like a pendulum. When the landmark Villani decision came along it changed the CPP landscape and although this is a very significant decision, if you are solely relying on Villani to win your appeal I would caution you to think twice.
The pendulum has now swung towards mitigation issues. What is mitigation and why is it important? Mitigation - to lessen, reduce, moderate, make less severe, ameliorate, to make better, or improve. How do mitigation issues pertain to a CPP disability appeal?
Well if you are bringing yourself before a CPP decision maker you have a duty or responsibility to mitigate your appeal. If there is evidence of work capacity you will normally be required to test this capacity - for further explanation check out the Inclima decision which is located in the FAQ section of the website.
You also have a duty to ameliorate your disability - this means that you are typically required to follow medical recommendations. Now of course there are reasons why an appellant may not have followed recommended treatment - for example financial hardship or intolerable side effects, but for the most part, you need to follow recommended treatment options.
If you have questions about mitigation, please feel free to email at email@example.com
The afternoon session of the Representatives Information Session included the opportunity to hear from sitting Panel Members who shared their thoughts on effective advocacy when appearing before the Review Tribunal. The Panel consisted of British Columbia members who have been sitting for some time and who I have had the opportunity to appear before.
Some of the tips the Review Tribunal panel members gave were - to use good time management - stick to the facts of the case, using your schedule appeal time to rant about the unfairness of the CPP legislation, or how you much you think "the Feds" suck is a complete waste of your time. Have a strong opening and closing statement and stick to the issues on appeal - use the Minister's Submission as a starting point - written submissions are helpful, and the Panel members really want to hear from the Appellant - what's the impairment and why you cannot work.
The Review Tribunal panel members are aware of the significance of the appeal and how much their decision will affect your life. All of the Panel members have the opportunity to write the final decision. However, although panel members are empathetic to each person's situation, they are obviously bound by the CPP legislation.
This was a good opportunity to hear what the decision makers think and what they feel is effective advocacy.
On March 31, 2010 I attended a seminar for those individuals who represent CPP disability appellants before Review Tribunals. OCRT held this event in Vancouver and it was attended by the Deputy Commissioner and senior OCRT staff who provided important information on their processes, key legal issues and current initiatives.
I have had the opportunity to attend this event on another occasion in Toronto, but because I enjoy a strong working-relationship with OCRT and because I like to keep abreast of current issues concering CPP appeals, I wanted to attend.
I felt that most of the information that was presented, although welcome, was geared toward those individuals who infrequently represented CPP appellants. I suppose the most important information that I learnt was that - The Minister requests Leave to Appeal on favourable Review Tribunal decisions 10 - 15% of the time, and that witnesses at Review Tribunal hearings will now be required to take an affirmation swearing that the evidence they shall give shall be the truth, the whole truth, and nothing but the truth.
Overall, I think that these events fostering outreach with OCRT are extremely beneficial and helpful.
Earlier this year, I attended a Review Tribunal hearing where my client - let's call her Bonnie - did not have a formal diagnosis - the doctors basically did not know what was causing her medical problems and symptoms. One of the reasons HRSDC was denying her was because the doctors could not provide treatment options for an individual when they did not know what the medical condition was - so the Feds were saying - the client still had treatment options available to her!
If anyone has watched the Discovery Health Channel's television series "Mystery Diagnosis" there are many people who sometimes go years with all types of symptoms before a medical professional can diagnose their condition - not having a "label" can be frustrating for an appellant - not only on a personal level - but when they try to apply for a disability benefit.
This was the case with Bonnie. Despite, numerous appointments with all types of medical practitioners - of all kinds of specialities - she still did not have a diagnosis.
Medical evidence is needed to show it is more likely than not, that a person meets the definition of disability. However, in Bonnie's case, as her condition has not yet been diagnosed, she had not received any beneficial treatment and she is, therefore, likely to continue from such conditions into the indefinite future. Therefore, we could argue her condition is prolonged.
As Bonnie's medical condition has not been diagnosed, it has not been successfully treated, and although she has followed various treatment recommendations to no avail and or despite significant side effects - she had made several attempts to mitigate. She also tried a return to work without success.
In Heisler v, MHRD CP 13450 (PAB), the Pension Appeals Board, after describing the Appellant's symptoms, stated the following: "there is some question as to the proper diagnosis of her ailments. . . While there is a shortage of objective evidence pinpointing the exact nature or cause of her pain, not one doctor has suggested that it does not exist or that the Appellant has exaggerated its intensity or frequency." Notwithstanding the lack of diagnosis, the Pension Appeals Board determined the Appellant's disability was severe.
This is what we argued at the hearing - despite lack of diagnosis - Bonnie was still disabled according to the legislative criteria. I am pleased to advise that Bonnie was successful with her appeal.