CPP Disability Claims Advocacy Clinic
 
 

DCAC Blog


 

Frustration mounting waiting for Review Tribunal Appeals

by Allison Schmidt 02 November 2012 19:36

One of my clients called today wondering when he was going to get a Review Tribunal hearing.  He has been waiting for an appeal for 10 months now - it has been 22 months since he made his application to Canada Pension Plan for disability benefits.

I called the Review Tribunal office again to ask when this gentleman will get a hearing - and I am told that he is waiting to be heard - basically a non answer. 

My question is who am I going to have to call to get an answer? Ghost Busters?

I am patient for the most part - I understand the system but honestly these people are dealing with ill health, disability, stress, poverty, financial ruin, inability to fund their medication, the list is endless - and it is not fair to keep leaving these people in limbo.

We need some answers from the Feds. 

 

 

A change is going to come - April 2013

by Allison Schmidt 08 May 2012 10:46

When the Feds announced the budget in March included in the contents was this paragraph:

"The Minister will introduce legislative amendments to eliminate administrative duplication in appeals and tribunal services by replacing the current administrative tribunal system for major federal social security programs with a single-window decision body. The new Social Security Tribunal will continue to provide a fair, credible and accessible appeals process for Canadians."

This now means that the Office of the Commissioner of Review Tribunals as well as the Pension Appeals Board will cease to exist in its current format.

The Budget Implementation Act which came out April 26th, 2012 provided some information about what this new Social Security Tribunal would now look like.

The Social Security Tribunal will consist of the General Division and an Appeal Division.

The Tribunal will consist of no more than 74 full time members appointed by the Governer in Council.

The General Division can summararily dismiss an appeal if it is satisfied that it has no reasonable chance of success.

If you are denied at the General Division you can appeal to the Appeal Division and any appeal to this division may only be brought if leave to appeal is granted.

The only grounds for appeal are that

a) the General Dvision failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or

c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The head office of the Tribunal is in the National Capital Region or at any other place within Canada that may be designated by the Governor in Council.  I have also heard through that there is a push for electronic appeals - are the hearings going to be held in the location that the appellant resides in or are they going to be done just on paper alone?

Under the current system if you are denied at the Review Tribunal and you are granted Leave to Appeal to the Pension Appeals Board you get what is called a hearing "de nova" which means that the Pension Appeals Board will look at the appeal with 'fresh eyes" - you start from scratch and essentially the prior decision carries no weight on the decision making process.  However, under the new system the appeal division will only intervene if an appellant is able to establish the decision contained one of the above noted errors.  This concerns me - the average person will have no idea how to make these arguments.  How is a person with no education, or those who have language barriers, or those who are functionally illiterate, or who are sick ever going to be able to make a successful submission?

Every application to the Tribunal is to be heard before a SINGLE MEMBER.  Who are these members going to be? Are they going to understand the tenants of the CPP legislation? Are they going to have a medical background so they can understand the medical reports? The Feds at the Pension Appeals Board had a doctor who would explain the medical condition to the Board because they did not have medical expertise - the Review Tribunal have a medical member sitting on the Panel - are these new single members going to have the expertise of a lawyer or a medical person? Also, when the appeal is heard before three panel members I understand that they have the opportunity to deliberate among themselves and there is the opportunity to discuss all the points that have been made at the hearing - when there is an appeal before a single member - well I feel that that opportunity is lost - if the single member is having a bad day - who is going to hold that single member accountable? Where will the balance in the decision making be - it is no different from presenting the information at the initial application, and at the reconsideration - those decisions are made by a single member of the Federal Government - is that the same thing that is going to happen under the new system - only the single member is in a different location??

There is also a lot of discussion in this Bill about the Electronic Administration of the Canada Pension Plan.

 

So what does this mean? I am not a friend of the Federal Government - you have read my blog and likely noticed the disdain I have for the Feds. They state in their budget document that this new tribunal is going to "provide a fair, credible, and accessible appeals process for Canadians." - not likely. My first response to this was why would the Feds do this - the Tribunal and the Pension Appeals Board run well - the system has been in place for years. I believe and have stated many times that having a hearing before three independent arm's length community panel members is an excellent way for an individual to have his case and application for Canada Pension Plan disability fully explored.

An individual from Service Canada told me that the adjudication time frame for an initial application is running as high as 32 weeks - that is eight months. Then 60% approximately are denied - and then you are waiting at least another 20 - 25 weeks for a reconsideration. I am still waiting for the results of a Freedom of Information request I submitted to formalize these statistics but things are pretty grim out there - at least that is what I hear from the daily calls of desperation to my office. So in the past I was confident that an appellant would have a good hearing before the Review Tribunal especially if they were prepared well - and now the Feds have completely changed the system and from what I read - the Canada Pension Plan Act itself.

Now everyone is up in arms about changes to the environment but what about all of these subtle changes that affect Canadians - believe me no one seems to care - unless it happens to them - and you have read my discussion about how this process and procedure negatively and significantly impacts Canadians at some of their lowest times - how exactly is that fair and credible, oh and lets not forget accessible?

So I am working here to evolve the website as these changes come in to place - I will tell you one thing I believe for sure - get help with the application - get help with your appeals - make sure you find someone - use the resources on the website - anything you can do to make sure you get a successful result before these changes came in to place.

I intuitively believe that the Feds are doing this for one reason alone - and that is to save MONEY - and of course in my opinion their CLAIMS EXPOSURE which will ultimately mean they will save MONEY.

Please check back as I make changes to this website to help you with your applications and appeals.

Credible. Fair. Accessible. My a$$

 

CPP Disability Review Tribunal hearings.

by Allison Schmidt 12 April 2012 12:33

The Review Tribunal uses the following information in order to make its decision: the information that was previously submitted to HRSDC - Canada Pension Plan during the application and reconsideration process. The Review Tribunal office will either send you or your representative this documentation which makes up the Hearing File.

As soon as the Review Tribunal office receives notice that you are requesting an appeal, they start to accumulate a hearing file. They contact the Feds and ask them to send all the documentation that they have collected during the application and reconsideration process. This would include the application, questionnaires, and any medical information that you have submitted. It would also include CPP adjudication worksheets and well as departmental correspondence and a record of your earnings and contributions to CPP.

As well as this evidence the Review Tribunal will also receive additional information you would like to submit - new documentation from your doctors or letters of support - although you can give these letters directly to the Panel it is best if you send this information in advance so that everyone has an opportunity to read and process the information - you may also like to write a submission arguing why you meet the legislative criteria - but make sure that you understand the legislative tenants - read the blog for suggestions on how to do this.

The Review Tribunal is a hearing de nova - which is latin- for a heaing anew - which means that they are going to consider all the information with "fresh eyes".

The oral information you give at a hearing is also an important source of information for the Review Tribunal and you will be encouraged to tell you own story and to give the Review Tribunal information about your condition - the Review Tribunal will also have questions for you arising out of your testimony or out of the Hearing File. You can ask witnesses to attend the hearing to give information on your appeal - you and your witnesses will be asked to affirm that the evidence you will give will be the truth the whole truth and nothing but the truth.

It is my recommendation that you have a representative - because I am a case manager and know the advantages to having someone help you who knows the lay of the land - the OCRT advises that appellants seem to have a more successful hearing if they have someone to represent them.

It is not effective to have someone who you have asked to be a witness to represent you as well. The representative and the witness should play their own unique role in the hearing. Sometimes witnesses are asked to be excluded from the hearing room while you are giving evidence so that their evidence is given appropriate weight and can be taken as credible.

As well you can have a support person at the appeal and they are able to stay in the hearing room throughout the hearing.

 

Canada Pension Plan and appealing to a Review Tribunal

by Allison Schmidt 11 April 2012 14:10

The Office of the Commissioner of Review Tribunals (OCRT) are responsible for scheduling Review Tribunals. The hearings are usually held in the appellant's community and they usually take place in a hotel meeting room.

If you are rurally located, you may have to travel to a larger centre near you, but your travel costs will be reimbursed. If you live in a rural area it may take you longer to get a hearing as the need for a Review Tribunal to attend a location is based on the number of appeals in that location. Therefore it can take some time to get a hearing in a rural location - you can however waive travel costs against the Review Tribunal to get a location change to an urban center which may expediate the length of time you will have to wait.

If you require language interpretors or have special needs - these will also be accommodated.

The Review Tribunal usually sit three times in one day - at 9.00am, 11.00am and 2.00pm and the hearings usually last around 90 minutes. Sometimes if you have a complicated case the Review Tribunal may schedule a longer time period.

The Review Tribunal Panel itself has three members - the Chairperson, a medical member, and a member from the community. Most people assume that the panel members are from their community but panel members can be convened from all over Canada to sit at any location. The Chairperson is always a lawyer and is responsible for overseeing the hearing and usually for writing the decision.

The responsibility of the Review Tribunal is to decide whether or not your appeal for Canada Pension Plan disability benefits should be granted - the tribunal can allow your appeal, decide on the date of onset of your disability which will effect the amount of retroactive benefits you receive, deny your appeal, or decide they have no legal authority to hear your appeal. They can also grant an adjournment of the hearing. They cannot change the legislation no matter how much compassion they may feel or have for you.

 

A negative Review Tribunal decision

by Allison Schmidt 16 March 2012 10:38

In January I wrote a blog about a hearing that I had attended and I was complaining about the vibe in the hearing room. I had strongly felt that the client was going to be denied - based strictly on the panel that had convened to hear that appeal.

An this week I got the decision and sure enough it was dismissed.

You cannot win every appeal - I understand that - and if the decisions are evenly written and reasons are well thought out - I have no problem taking a denial - you have a different interpretation on the information that is fine - no complaints and that is why there are various levels of appeals.

However, this decision I am going to describe to you. The client has appeal rights thank goodness.

This client - let's call him James.

James is middle aged. He has several diagnoses - including systemic arthritis as well bowel disease due to adhesions from previous surgeries - and chronic pain and fatigue due to these conditions. He has been under specialist treatment since 2002 - so now ten years on.

He has an MQP of December 2008- remember that is the magic date - the date he needs to be found disabled.

He could not work in a competitive work force due to his disability - so he decided to do a home based business - which continued to grow - but soon he could not keep up with the demands because of his disability.

He bought equipment to help him manage the business but eventually he had to turn business away - he continues to earn around $200 per month as that is his capacity.

He has pain in his knees, hips, back, he has adhesions on his abdominal wall which leads to significant bowel issues. He also has chronic fatigue due to his systemic arthritis.

He was prescribed medical marijuana to manage his pain as well as other medications to manage the degeneration of his joints.

The analysis of the Panel and the reason for the denial.......

The Panel agrees that James has ongoing "problems" related to his medical condition. No significant increase in his symptoms from Jan 2002 to October 2007 - note this is one year before the MQP - and the doctor does not give an opinion as to whether the condition is disabling - note these where consultation reports from one doctor to another.

There is little medical evidence regarding the bowel issue- really??? Well James had been referred to several specialists as well as surgeons to see if they can do anything to help - all doctors say no. That if there is surgery it could make the situation of the adhesions worse - and James did not mention this pain enough to his doctor - yet he has been prescribed medical marijuana by the doctor who notes "for ONCE I am comfortable with this as a means of CHRONIC PAIN management" and the doctor also notes in evidence - that mobility is seriously impacted 8/10 - that the paitent is in pain sitting, standing, and lying down.

The medical conditions do not individually or collectively appear to disable him and that he is intelligent and articulate - and that he has not made attempts at employment - okay????? As explained he has been trying to operate within his functional capacity for many years.

So yeah there are pages of medical reports from specialists - his doctor characterizes his medical condition as severe.

There is no discussion about productivity - there is no discussion about how pain interferes with his day to day functiioning - there is no discussion about how this client cannot regularly attend at a place of employment - there is no discussion about his excellent work history. There is no discussion about his efforts at mitigation.

And one last thing that James mentioned to me when I called to see if I could put his story on the blog was - that the hearing was in the mid morning - the hearing took about an hour - and after the hearing James and I sat in the lobby and I was telling him about my negative feelings - less than ten minutes later the Panel left the hearing room and went to the restaurant to eat lunch - so James said to me - how much time was spent deliberating and discussing the file - he was not at confident that his case was given its due - and you know what I tend to agree.

Anyway just wanted to update you.

A new year rant

by Allison Schmidt 18 January 2012 12:03

Well firstly I would like to say that one of my goals for DCAC this year is to take the time to make regular blog entries. I get a lot of emails from people out there who find the blog entries helpful and informative and of course that is my goal, to keep you up to date on what is happening in CPP land.

The first thing I would like to talk about the changes that the Office of The Commissioner of Review Tribunals has made which have significantly impacted my work as well as other individuals who case manage CPP appeals. I also believe it has impact on the client as well which has been born out in the appeals that I have been at since the change was implicated. I am not critizing the staff at OCRT, budgets have been cut and changes to meet budget have to be made. In the past the Review Tribunal would send both the client and the case manager a copy of the hearing file that was numbered, indexed, and bound. This will no longer happen. As well, the Appellant will no longer receive copies of documents that HRSDC has sent to the Review Tribunal office - they will only be sent to the case manager or advocate. The Appellant will also not receive a copy of the any of the hearing documents - other than a letter which says when their appeal is scheduled.

Okay so for me, the person who I am helping will have no idea what is in their file before the Review Tribunal unless I copy the file and send it to them - which essentially means - while the government is saving money - the people who are helping the people, who the Feds have often in my opinion unfairly denied to begin with - are not. Do you get my drift here?

The only way the Appellant can keep on top of what is going on in their appeal or know what documents exist is if I send them a copy. So many times clients have gone through their files and have had no idea of the reports that have been written or conversations with Feds that have been taken out of context - all of this just adds another layer of complexity to the mix.

For individuals who pay disbursements the fees will become increased.

But even with all of this - what I find the most disturbing - is that the Tribunal hearings are becomming more and more challenging -without page numbering there are delays as we all shift through documents - it disrupts the flow of the hearing - and it wastes time - an appellant is typically allowed one and a half hours to explain why they meet the legislative criteria - and now I am spending time with panel members shuffling documents. My last issue is the fact that often there are documents missing - it happens to me all the time.

Grrrrrrr.

If you do not have someone to advocate for you then all the documents will still be sent to you. But just keep in mind that you have to manage these documents and sometimes I find it an overwhelming task - let alone a person has a disability - the paper trail for me is onerous.

I wonder how the cuts in the Fed's budget is going to impact the denial rates. I think it is going to be a very interesting year. It is almost a perfect storm for claims - aging populations, the economy, and I really anecdotally see the increase in denials, the increase in processing times to even hear a decision. I know I got an email last week from someone who told me she had put her application in two weeks ago and she wanted to know what the hold up was - I did laugh out loud - and this person was really ticked at the answer I gave her.

So please keep me informed of what is going on in the trenches. If you need help do not hesitate to email - it may take me a bit to get back to you though so please be patient.

Happy New Year.

 

An Interesting Week...

by Allison Schmidt 26 June 2010 11:33

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

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.

 

Regulatory Changes Affecting Review Tribunals

by Allison Schmidt 14 April 2010 15:39

Recent changes to the Review Tribunal Rules of Procedures include:

1.  A requirement that witnesses testify under oath - as a matter of practice, the Chairperson will ask the witnesses to simply state that he or she promises to tell the truth, rather than do so while holding a holy book or sacred object.  In law, this approach is called making a solemn affirmation.

2.  Review Tribunal panels will have the discretion to decide whether to exclude witnesses while others are testifying or to allow them to be present.  It is worth noting that formal rules of evidence requiring the exclusion of witnesses are intended to enhance the reliability and credibility of the evidence on which a decision-maker relies.

This information has been provided to me from the Office of the Commissioner of Review Tribunals by way of the Representative's Bulletin.

 

Adidas US NIKE MEN'S ZOOM KOBE VENOMENON 5 EP SHOES Timberland 6 Inch Boots Nike KD 9 Shoes Supra Skytop NIKE KOBE 9 EM XDR LOW Nike Air Force One High Timberland Boots KOBE XI ELITE MEN'S BASKETBALL SHOES Under Armour Stephen Curry Shoes Adidas NMD XR1 Sneakers LEBRON XII NIKE LEBRON SHOES Nike Flyknit Air Max Shoes NIKE LEBRON 10 COLORWAYS Air Jordan Flight 89 LEBRON 9 PS ELITE FINALS NIKE LEBRON 12 BOYS UA SPEEDFORM GEMINI RUNNER'S WORLD Adidas Yeezy 350 Boost Turtle Dove Adidas Ultra Boost Shoes UK

© Copyright 2016, Disability Claims Advocacy Clinic Inc. All rights reserved.
Codetech Web Development