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.

 

Reasons People are Denied CPP disability Part One.

I receive phonecalls from clients who do not understand why they have been denied CPP disability benefits.  They are indignant that the Feds have denied their claims when they have support of their medical practitioners who state they cannot work. They simply do not understand why after paying into a program for years they cannot get the benefit to which they believe they are entitled to.

I remind these people that based on my research using the Freedom of Information Act, that the CPP denial rates have remained fairly stable over the last 10 years. And yes, I would say there is truth to the rumour that the Feds deny many claims on first application - unless of course you're terminal or the disability is really catastrophic.

I have been in "the trenches" now for 12 years. I think what is different in the last couple of years is what I call the perfect storm.  Aging baby boomers, a poor economy and more applications to Canada Pension Plan have lead to increased applications and more people being denied. People try not to take it personally - it is a system - and you are a number in that system.

So do not give up - do not get frustrated - get a plan of action. Figure out how to establish you meet the legislative criteria. It is your ONUS to establish that you are disabled.  Sometimes you just have to keep making your way through the steps. Do not be afraid of a Review Tribunal hearing. This is where I do most of my work. It is where you finally get to meet someone face to face to talk about your disability. It is a great opportunity so do not waste it by ranting about the Feds.

The most common reasons why CPP disability applications are denied is that the Feds decide the disability is not severe.  Most times you will note in your denial letter that HRSDC state "while you may not be able to do your usual work, we have concluded that you should still be able to do some type of work." If I had a dollar for everytime I have read that line....

HRSDC relies on what your doctors say about your medical conditions and limitations, and on any many reports that they have submitted.  It is important that your doctor's report explain your medical conditions and why this prevents you from working. Simply saying that your disability is "severe and prolonged" on a prescription pad is useless.  If for example your doctor says you are no longer able to do physical ACTIVITIES like bending and lifting, HRSDC may determine that you have the capacity for sedentary work.  If you doctor says your medical conditions are stable HRSDC may interpret your are capable of alternative work or that your condition is not serious enough to stop you from working. 

Often times it is difficult for clients to get information from the doctor - let's face it doctors are really busy - and they can charge a lot of money to prepare medical reports - their time is really stretched.  Many people simply cannot afford the cost of the doctors reports - it is a very difficult position to be in.  One of the next blogs I have to do will be on collecting medical information so stay tuned.

 

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."

 

Regulatory Changes Affecting Review Tribunals

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.

 

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

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.

 

 

The Minister's Explanation of Decision under Appeal.

When an appellant goes before a Review Tribunal the Minister of Human Resources Social Development Canada (HRSDC) is a party to the appeal.  They send a representative to the hearing to advocate the government's position as to why the appellant was denied. This is the Fed's argument and a good place to start when trying to sort out what the issues are under appeal.

In the remote past, the appellants were given these arguments at the hearing. This of course was a huge disadvantage to an appellant, as they would not be prepared for the arguments that may be made by HRSDC. So due to procedural fairness the department started to ensure these explanations were given to appellants prior to the appeal and this procedure has continued to present date.

There are many regional offices that adjudicate CPP applications. Most of the regions are very prompt in having their submissions sent to the Review Tribunal office so the appellant can prepare for the hearing and understand the issues under appeal.

However, there is a recent trend with the Ontario Chatham office - apparently there is a big problem getting information from this regional office.  This situation happened to me recently. I had a hearing adjourned in September 2009 as I submitted information two weeks prior to the hearing and the Chatham office did not have the opportunity to review the new information - we hoped that this new information may change the Fed's position.

So by the time the Review Tribunal contacted me again to reschedule the hearing - some 5 months later - we still had not heard what the Fed's position was on the new information.  Being a good representative and trying to avoid what I thought was an unnecessary hearing - I repeatedly tried to find out what was going on with the new information.

Long story short - the hearing proceeds - and I receive the Minister's explanation - 20 minutes before the hearing started. Now I am an experienced representative, I can think on my feet, but for someone who is appearing alone or with an infrequent rep - this is a huge disadvantage.

The reason I was given was that the nurses did not have time to look at the information I had given back in September 2009. Is this an isolated incident - I would like to know - please contact me at info@dcac.ca if you have also been in this position.