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.

 

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