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.