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.
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 firstname.lastname@example.org
I would like to take this opportunity to tip my hat to the fine advocates at the BC Coallition Advocacy Access program. I was made aware that the advocacy program had lost their funding March 31, 2010. They have been helping appellants since approx 1990. I wish them well in their future endeavours.
The afternoon session of the Representatives Information Session included the opportunity to hear from sitting Panel Members who shared their thoughts on effective advocacy when appearing before the Review Tribunal. The Panel consisted of British Columbia members who have been sitting for some time and who I have had the opportunity to appear before.
Some of the tips the Review Tribunal panel members gave were - to use good time management - stick to the facts of the case, using your schedule appeal time to rant about the unfairness of the CPP legislation, or how you much you think "the Feds" suck is a complete waste of your time. Have a strong opening and closing statement and stick to the issues on appeal - use the Minister's Submission as a starting point - written submissions are helpful, and the Panel members really want to hear from the Appellant - what's the impairment and why you cannot work.
The Review Tribunal panel members are aware of the significance of the appeal and how much their decision will affect your life. All of the Panel members have the opportunity to write the final decision. However, although panel members are empathetic to each person's situation, they are obviously bound by the CPP legislation.
This was a good opportunity to hear what the decision makers think and what they feel is effective advocacy.
On March 31, 2010 I attended a seminar for those individuals who represent CPP disability appellants before Review Tribunals. OCRT held this event in Vancouver and it was attended by the Deputy Commissioner and senior OCRT staff who provided important information on their processes, key legal issues and current initiatives.
I have had the opportunity to attend this event on another occasion in Toronto, but because I enjoy a strong working-relationship with OCRT and because I like to keep abreast of current issues concering CPP appeals, I wanted to attend.
I felt that most of the information that was presented, although welcome, was geared toward those individuals who infrequently represented CPP appellants. I suppose the most important information that I learnt was that - The Minister requests Leave to Appeal on favourable Review Tribunal decisions 10 - 15% of the time, and that witnesses at Review Tribunal hearings will now be required to take an affirmation swearing that the evidence they shall give shall be the truth, the whole truth, and nothing but the truth.
Overall, I think that these events fostering outreach with OCRT are extremely beneficial and helpful.
Earlier this year, I attended a Review Tribunal hearing where my client - let's call her Bonnie - did not have a formal diagnosis - the doctors basically did not know what was causing her medical problems and symptoms. One of the reasons HRSDC was denying her was because the doctors could not provide treatment options for an individual when they did not know what the medical condition was - so the Feds were saying - the client still had treatment options available to her!
If anyone has watched the Discovery Health Channel's television series "Mystery Diagnosis" there are many people who sometimes go years with all types of symptoms before a medical professional can diagnose their condition - not having a "label" can be frustrating for an appellant - not only on a personal level - but when they try to apply for a disability benefit.
This was the case with Bonnie. Despite, numerous appointments with all types of medical practitioners - of all kinds of specialities - she still did not have a diagnosis.
Medical evidence is needed to show it is more likely than not, that a person meets the definition of disability. However, in Bonnie's case, as her condition has not yet been diagnosed, she had not received any beneficial treatment and she is, therefore, likely to continue from such conditions into the indefinite future. Therefore, we could argue her condition is prolonged.
As Bonnie's medical condition has not been diagnosed, it has not been successfully treated, and although she has followed various treatment recommendations to no avail and or despite significant side effects - she had made several attempts to mitigate. She also tried a return to work without success.
In Heisler v, MHRD CP 13450 (PAB), the Pension Appeals Board, after describing the Appellant's symptoms, stated the following: "there is some question as to the proper diagnosis of her ailments. . . While there is a shortage of objective evidence pinpointing the exact nature or cause of her pain, not one doctor has suggested that it does not exist or that the Appellant has exaggerated its intensity or frequency." Notwithstanding the lack of diagnosis, the Pension Appeals Board determined the Appellant's disability was severe.
This is what we argued at the hearing - despite lack of diagnosis - Bonnie was still disabled according to the legislative criteria. I am pleased to advise that Bonnie was successful with her appeal.
After months of toil the new DCAC website has finally gone live.
We have published quite a bit of information about CPP Disability claims and appeals. We hope this information helps our visitors to better understand the issues and obstacles they may face if appealing a denied CPP Disability benefits claim. New content will be progressively added to our blog when time permits.