Checking me out

Happy New Year.

I have a lot of information that I am looking forward to sharing with you over this new year. 2011 marks my 13th year working in this field and this brings me to the reason for this blog.

Many people who contact me have no idea that there are individuals out there who can help you navigate the Canada Pension Plan appeal maze. It can be overwhelming. The reason why I have this blog and this website, is to provide this information and hopefully help out in some way, even if it is just to let people know that they should not give up, or that there are other people who are going through a similar situation, and finally to share what I know about the appeals system. 

With the launch of the website, I have for the most part been very well received. I hear from a lot of individuals who have found the information helpful.

I have also had some people question my integrity and services and feel that I am in some way not who I represent myself to be.

There have been some concerns that I run DCAC similar to the recently maligned National Benefits Authority, who take a fee for completing CRA disability tax credit applications. 

Please note, that I do not fill out forms for CPP. I never have - I may be able to give you some helpful advice on what information to include or answer your questions - and I do firmly believe that a well-completed application form is a good first step to success - it is not something that I involve myself in. I have outlined clearly on this website what I do and how I help.

There is legitimate concern about sharing Social Insurance Numbers and I totally get that - there is a real need in today's marketplace to be completely comfortable with the sharing of this type of information. 

I will continue to post current information on this website that I hope will help you if you are going to appeal a denial. That information is free for the taking!

If anyone has any concerns about the services provided by the Disability Claims Advocacy Clinic -please contact me directly - I will be happy to talk with you.

I have some really good information about CPP processing times for various different regions which I will post in the next few days.

 

A moment to catch my breath

Well what a whirlwind of a month.

CPP must be on a rampage of denials because the phone and emails have been busy. Thank you to all who email me and are pleased with the information the website contains. I am glad that it is of help to you.

So what is new in CPP land?

Well interestingly, I can do an analytic report on who visits my website by location in the country and I was wondering if any of you would hesitate to guess where most of my visits are from?

Okay I find it odd because I do not get a lot of calls from that region - but yes indeed - the most visitors to this site come from Ottawa.  What do you make of that??

Anyway if you are reading this blog my friends in Ottawa - hello!

I still have much to write about but little time right now. In November the work load will decrease a little so I will blog some more then. Take Care. Allison

 

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

 

 

CPP Early Retirement Benefits

Well here we are approximately two months since my last blog. The dog days of summer are upon us. 

I have had a very busy summer and have talked to many interesting people across the country about Canada Pension Plan disability and the problems they are facing - thank you very much for your good feedback about the website.

I chose to write this blog because on a daily basis I receive phone calls from individuals who have been denied CPP disability benefits because they have been in receipt of CPP early retirement benefits that they have taken after age 60.

Now, CPP disability will provide you a benefit until age 65 - after that your benefits would change over to retirement benefits. This is typical with most disability insurance policies as retirement age is usually 65. (I know there has been debate about this age - but for insurance purposes 65 is the magic retirement number.)

If you chose to take your CPP early retirement benefits before age 65 there is a pretty negative implication pertaining to your CPP Disability benefit.

Okay here is it - the legislation states that you are only able to receive one type of CPP benefit at a time - these are death, retirement, and disability.  The legislation also states that CPP can only pay 15 months of retroactivity from the date of your CPP application.  If you have been in receipt of your early retirement benefits longer than 15 months from the date you applied for disability benefits - then you be inelligible to change your benefit from early retirement to disability.

Some examples - Dave applied for early retirement benefits at age 60, and at age 63 he had a stroke disabling him from working. He would be inelligible to for CPP disability as he had been on early retirement for longer than 15 months. 

Susan was disabled from working at age 61.  She applies for CPP Disability benefits at the same time she applies for CPP early retirement benefits. If she is found disabled according to the legislative criteria - any disability benefits she received would be reduced by any early retirement benefits she had taken.

Lisa is disabled and applies for CPP disability - the feds send her a letter denying her claim - saying she is not disabled but lookey here - you can apply for your early retirement benefits instead - and here is a form for you to sign saying that you want to withdraw your disability claim and take your early retirement benefits. Okay, early retirement benefits are less than you would receive for a disability benefit - so get some advice before you sign that form.

Gus applies for CPP early retirement at age 60 and states that he stopped working due to disability.  He assumes the Feds will put him on the "correct" pension based on their review of the application. Two years pass and Gus realizes he is not getting a disability pension. He contacts CPP and is advised that he never applied for CPP disability even though he states he stopped work due to disability - you have to fill out a CPP disability application in order to apply for the benefit.

Bill applies for CPP early retirement and when he becomes disabled is told he cannot qualify for CPP disability based on the fact he has been on early retirement longer than 15 months - he is upset because CPP never advised him of the consequences of applying for early retirement benefit - sorry Bill - transparency is not the Feds greatest attribute.

So here are my final thoughts - statistically the incidence of disability increases as you age. If you want disability coverage under the your Canada Pension Plan then you do not apply for CPP early retirement benefits.  If you are disabled by age 60, then you can if you choose to,  apply for both the early retirement and the disability at the same time - and have someone review your file if you get the letter asking you to withdraw your CPP disability application and take early retirement benefits.

 

 

 

An Interesting Week...

This week I visited Ottawa. I called in to see the staff at the Review Tribunal office. I have been working with this office for some 12 years now, so it was nice to put faces to names.

While visiting in Ottawa I had the pleasure of experiencing my first earthquake!

After leaving Ottawa, I worked in Alberta. I have a very interesting case let's call him Wayne.

Now Wayne and I have known each other for many years. He is a client who has significant Osteoarthritis in numerous joints and he is in his late fifties. The reason why Wayne has been a client for so long, is that every year he tries to continue to work. He has a wife who is mentally ill and he is her primary caregiver.  This man tries each year to work to make money to support his family.

The thing is, he needs joint replacements which he refuses to have because he has no way to financially support his wife and to keep their home. So he gets up each day and picks garbage and bottles in order to survive. He also tries each year to be self-employed, gets a contract and then cannot complete the work because of his functional limitations. He cannot sleep due to chronic pain, and he is medicated all the time.

And to top it all off Wayne will not go before a hearing to "beg" for money - he says he is to proud to do this. Despite my advice that he has paid in to Canada Pension Plan for over 30 years and that this is not charity - but an entitlement - if you qualify.

The reason why I bring this case up, is because I have a client who has excellent medical evidence, who is working against medical advice, who relies on pain medication, who cannot have a joint replacement because he cannot afford to stop working, and the Feds say he is not disabled because he is working - and how can I argue this because technically he is.

However, there is provision in the legislation about what is a Substantially Gainful Occupation as well as an Allowable Earnings Provision. I could have argued whether he is working for a Philanthropic Employer - namely himself - and each case is a unique case to be assessed on its merits.

I went to Alberta quite prepared to run this by the Review Tribunal but - Wayne - who showed up to meet with me the morning of the hearing - could not handle appearing before the tribunal to "beg" for a benefit - he just would not do it.  So he left.  I really tried to help him understand the process but he just could not cope with attending the hearing.

I appeared before the Tribunal on Wayne's behalf and interestingly his Miminum Qualifying Period had changed allowing the Panel to consider his situation to date. Had I known this prior to the hearing I would have prepared myself differently. Rightly so, we did not proceed without Wayne and now I am going to submit all of the information back to the Feds and make a submission on Wayne's behalf to see what they will do - my guess - hold the line and say he is working.

Why am I blogging about this? It upsets and frustrates me that a man who has significant disabilities, supportive doctors, who has given it his all now since 2007, and who is in chronic pain, has to continue to struggle and pick garbage and bottles and not take surgery because he simply cannot afford to sustain himself and his mentally ill wife without losing his home.  He has applied for provincial benefits and they have also turned him down because they too say he is working therefore he is not disabled. What is wrong with this picture?

Well until next week, hang in there. If you need some help call or email me at info@dcac.ca

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.

 

The double-edged sword.

Warning I am going to rant!

I attended an appeal this week.  My client, let's call him Joe is a great guy - who has since the mid 90s been working with Osteoarthritis in many of his joints. He has continued to try and work but in 2005 - he was not longer able to do physical labour work. He then decided to return to school to reeducate himself into a sedentary occupation. However, the side effects of not sleeping due to pain, narcotic medications, and prolonged sitting left him unable to continue - and after six months he was no longer able to participate in college. He definitely gave it the old "college try".

Joe had a family to take care of, and although his wife works, most of us know, a double income is how most families maintain a reasonable standard of living, so rather than see his family lose their home, Joe went back to some type of work - most of you have probably seen these words in your CPP denial letter - you are not capable of your own job but you retain the capacity for some type of work. Joe applied for CPP in 2007 and was denied - he did not appeal but rather decided again to try some type of work and follow the CPP's suggestion.

So he worked reduced hours, what ever he could do, to keep his family fed. His pain levels increased, his disability increased, his family suffered because he was irritable and in constant pain, he was not able to sleep, he started to have anxiety attacks, basically his attempts at mitigation failed as a result of his disability.

In 2008, he reapplied to CPP for a disability benefit. He was again denied because he was working 13 hours a week. This was not substantial, it was not gainful, he was not productive, and he was working below the allowable earnings provision.

So what did CPP say? You are denied because you are working.

Now my pet peeve with the Feds - you are denied because you have not tried to work - and when you try to work - you are denied because you are working.

Does anyone see where I am going with this?

Anyway the hearing went well, we were prepared, he had a good panel, and I think he had a good hearing - the decision is yet to be determined - but I will keep you posted.

 

 

Mitigation, Mitigation, Mitigation

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 info@dcac.ca