Going to the CPP Disability Review Tribunal

Transcription

1 Going to the CPP Disability Review Tribunal A Self-Help WorkBook created by funded by The Law Foundation of Ontario

2 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 2 Thank you to The Law Foundation of Ontario, Access to Justice Fund for funding this workbook. Writing Robin Loxton and Peter Beaudin Editing and Design Ann Vrlak Legal Consultation Jess Hadley, Community Legal Assistance Society W. Broadway Vancouver, BC V5Y 1R3 Tel: Toll-Free: Fax: [email protected] Web: Solid Black

3 page 3 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Inside This Workbook. Preface. 4 Introduction. 5 How To Use This Workbook 5 CPP Basics. 6 The Review Tribunal Hearing. 7. Starting Your Request for a Hearing 8 Understanding Why People are Denied CPP-D. 8 Deciding Whether an Appeal is Right for You. 9 Do You Need Help?. 10 The 90-day Deadline. 11 Case Examples. 13 Checklist For Submitting a Notice of Appeal 17 Preparing Your Case 18 Reviewing Your Hearing File. 18 Key Strategies for Success. 19 Obtaining Additional Information. 21 Case Examples. 23 Checklist for Preparing Your Case. 27 Deciding How to Present Your Case 28 Representatives and Support People. 28 The Hearing Date. 29 The HRSDC Submission. 29 Preparing Your Written Submission. 30 Legal Research. 33 Case Examples. 34 Checklist For Deciding How To Present Your Case. 36 Making Your Presentation 37 A Step-by-Step Look Presenting Your Case. 38 Tips to Help You at the Review Tribunal. 39 Case Examples. 40 The Review Tribunal Decision Beyond the Review Tribunal. 43 Conclusion 45 Frequently Asked Questions 46 Appendices 49

4 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 4 Preface On April 26, 2012, the Government of Canada introduced Bill C-38 in the House of Commons. This Bill contains drastic changes to many federal institutions, including the abolishment of the Office of the Commissioner of Review Tribunals and the Pension Appeals Board. Both bodies will be abolished as of April 1, 2014 and replaced by a Social Security Tribunal. This new super Tribunal will also handle EI appeals and other matters. The Review Tribunal and Pension Appeals Board will continue to function until April 1, After that time, there will be a one-year transitional period to the Social Security Tribunal. Most of the information in this Workbook will continue to be relevant. This is especially true of the sections covering written submissions. Written submissions will become more important than ever because there is no guarantee under the new changes that oral hearings will be held for all appeals. Decisions can be made based on written submissions alone. Please see Appendix E for more details on Bill C-38.

5 page 5 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Introduction This self-help Workbook is designed to help people whose Canada Pension Plan disability benefits (CPP-D) application and Reconsideration Request have been denied, and are contemplating the next level of appeal the Review Tribunal. We hope you will find it useful, especially if you live in a rural area and do not have access to an advocate or other resources. After providing an overview of the appeal process and the Review Tribunal hearing, the Workbook focuses on the following steps: Starting Your Request for a Hearing Preparing Your Case Deciding How to Present Your Case Making Your Presentation How To Use This Workbook For most chapters, we provide several case examples followed by questions and answers. The purpose of the cases is to illustrate how the appeal process works, what you need to do and decide, and what issues you need to tackle. You ll also see a checklist at the end of key chapters that will give you some things to think about or information to gather about your own case. watch for these symbols Case Examples See common appeal issues and problems Q & a Answer questions about the case examples checklist Gather information for your case tip Remember this tip or key issue

6 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 6 CPP Basics The Canada Pension Plan (CPP) is administered by the federal government. The department responsible for CPP is Human Resources and Skills Development Canada (HRSDC). The CPP operates in every province, except Quebec which has a similar program called the Quebec Pension Plan. The CPP legislation provides a number of different benefits including: Disability benefits (CPP-D), Benefits for children of people receiving CPP disability benefits, Retirement pensions, Death benefits, Survivor s benefits, and Benefits for children of deceased contributors. This guide deals with CPP-D benefits only. Qualifying for CPP-D To qualify for CPP-D, you need to meet three basic criteria. You must: 1. Be under 65 years of age. 2. Have made the required amount of contributions to CPP in the years before you became disabled. 3. Have a severe and prolonged disability, as defined in the CPP legislation. Overview of the Appeal Process There are three stages to the appeal process when your application for CPP disability benefits is denied. The first stage is the Reconsideration. The second stage is an appeal to the Office of the Commissioner of Review Tribunals (OCRT). The third stage is an appeal to the Pension Appeals Board. Stage 1 Reconsideration To appeal: write to HRSDC within 90 days of receiving your denial letter from HRSDC. Stage 2 Appeal to the Office of the Commissioner of Review Tribunals (OCRT) To appeal: write to OCRT within 90 days of receiving your denial letter from HRSDC. Stage 3 Appeal to the Pensions Appeal Board (PAB) For permission to appeal: write to the PAB within 90 days of receiving your denial letter from OCRT.

7 page 7 Going to the CPP Disability Review Tribunal: A Self-Help Workbook In this Workbook we focus on the second stage: appealing to the Review Tribunal. This means we start from the point where you have been told that your Reconsideration has been turned down. The Review Tribunal Hearing Review Tribunal hearings are set up and scheduled by the Office of the Commissioner of Review Tribunals (OCRT). The OCRT attempts to hold Review Tribunal hearings in the community of the person who is appealing the appellant. Hearings usually take place in hotel meeting rooms. If you live in a rural setting, you may have to travel to a regional centre near you for the Review Tribunal hearing. The OCRT can compensate you for the costs of attending the hearing. Also, the OCRT can arrange for any language interpretation or disability-related needs you may have at the Tribunal. A one-and-a-half hour time period is usually scheduled for the hearing. For each hearing, a three-person Review Tribunal panel is chosen by the Commissioner from a list of several hundred people appointed by the federal government. The Review Tribunal is independent from HRSDC, the government Ministry that made the decision to reject your application. The Chair of the three-person Review Tribunal panel is responsible for conducting the hearing and is always a lawyer. In appeals involving disability benefits, one of the other members is always a health professional, usually a doctor or registered nurse. The role of the Review Tribunal is to hold a hearing to decide whether your appeal for CPP disability benefits can be granted. The Review Tribunal has the power to: Allow your appeal: to decide if you are eligible for benefits and give you the full amount of retroactivity you are seeking, or Allow your appeal in part: to decide you are eligible for benefits but give you less retroactivity than you are seeking, or Decide it has no legal jurisdiction (legal authority) to rule on your issue, or Deny your appeal: to decide you are not eligible for benefits. The Review Tribunal makes its decision by applying the CPP legislation to the facts of your case. The OCRT has a website that describes its mandate and explains many aspects of the appeal process. See Appendix A for the website address.

8 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 8 Starting Your Request for a Hearing By now, you have applied for disability benefits and been turned down twice: first on application and then on Reconsideration. You will have received a letter advising you of the Reconsideration decision. You now have the right to appeal to the Review Tribunal Understanding Why People are Denied CPP-D It is very helpful to know why other people have been denied CPP-D. The most common reasons applications are turned down are: HRSDC does not accept that the applicant s disability is sufficiently severe and/or prolonged, or The applicant has not made the required contributions to the Canada Pension Plan. Disability is Not Severe In Appendix C of this Workbook, you will see that the legislation says a person s disability is severe when the person is incapable regularly of pursuing any substantially gainful occupation. In other words, you must show that your medical condition(s) is so severe that you cannot work at any job regularly enough to earn a modest living. Typically, when an application or Reconsideration is denied, HRSDC has decided that although the person cannot do his or her former job, they should still be able to do some type of work suitable to their condition. Keeping in mind that HRSDC places a lot of importance on medical opinions about the degree of restriction arising from a medical condition, if your doctor has said that you are no longer able to perform physical activities, such as bending or lifting, HRSDC may have decided that you can do some kind of office work. Or, if your doctor says that you have responded well to treatment, HRSDC may have assumed that your condition is not serious enough to stop you from working. Disability is Not Prolonged CPP-D applications and reconsiderations can be denied because HRSDC has decided that the applicant s medical condition is not prolonged. According to the legislation, a disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.

9 page 9 Going to the CPP Disability Review Tribunal: A Self-Help Workbook A disability may not be considered prolonged if a doctor has written that the CPP-D applicant is awaiting surgery for the primary medical condition. HRSDC has been known to conclude that the surgery will result in the full recovery of the applicant and they can therefore return to work. Therefore, the prolonged requirement has not been satisfied. Not Enough Contributions to CPP An application or Reconsideration can be denied because HRSDC has determined that the person has not contributed enough to CPP, at the right time. The Minimum Qualifying Period (MQP) is the minimum period of time that you must have worked and contributed to CPP in the years immediately before you became disabled (as defined by the CPP legislation) in order to be eligible for CPP D benefits. Currently, in most cases, you must have made valid contributions to CPP in at least four out of the past six years, or three out of the past six years, if you have made CPP contributions for more than 25 years. See Appendix B of this Workbook for a more detailed explanation of the MQP. It is important to check that a mistake has not been made in calculating your contribution period, nor an omission or failure to apply a provision that affects your contribution period and MQP date. If you do not have sufficient contributions there is no basis for an appeal. In cases where a person is a late applicant HRSDC has applied the Late Applicant Provision a person is allowed to have an MQP closer to the onset of her or his disability (see W). Nonetheless, late applicants have to prove that their health restrictions have stopped them from working ever since their MQP which, because they applied for CPP- D late, may be a considerable time in the past. Deciding Whether an Appeal is Right for You Although you have the right to appeal to the Review Tribunal, there are a number of ways in which the Tribunal s authority is limited. For example, there is no provision in the Canada Pension Plan and Old Age Security Act that gives a Tribunal the power to grant an appeal simply on compassionate grounds. To receive CPP-D, you must meet the criteria in the legislation. In the following situations, the Tribunal will have no option but to deny your appeal: If you do not have sufficient contributions to the Plan, If you cannot show that your disability was severe and prolonged, as defined by the CPP legislation,

10 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 10 If you are a late applicant and you do not have any medical evidence to show that you were disabled at the time you last qualified for benefits, or If you have been receiving CPP early retirement benefits for more than 15 months, or if you became disabled after you took early retirement. So, you need to decide if your chances of success are good enough to make it worthwhile to appeal. If you are having doubts, answering these questions may help you decide: By what date does your denial letter say you have to prove that you were not able to work because of your disability? (the Minimum Qualifying Period) Do you think that your medical condition has stopped you from pursuing substantially gainful employment ever since your MQP date? Is your health improving, so that you expect to return to work in the near future? Do you think that you can be successfully retrained for some other kind of job? In addition to your medical condition, are your age, education and/or language skills major obstacles to working? Do you think that your doctor(s) agree that your medical condition prevents you from working? If your answers to these questions indicate that you cannot work or that you have significant barriers to employment for the foreseeable future, you should seriously consider appealing to the Review Tribunal. If you are still unsure about whether to go ahead, get the advice of an advocate or someone who has knowledge of CPP-D to help you decide. Do You Need Help? Sometimes it can be difficult to fully understand why your Reconsideration Request was turned down. Or, you may be in a situation where you do not think you can manage an appeal on your own. You have the right to seek the advice and/or help of another person, or representative, with your appeal. A representative can be anyone you choose: they may be a friend, family member, union representative, community advocate, health professional or lawyer. It may be easier for someone else to assess the strengths and weaknesses of your case, help you prepare your case, and plan the most effective presentation to the Review Tribunal.

11 page 11 Going to the CPP Disability Review Tribunal: A Self-Help Workbook If you think you will need help with your appeal, it is a good idea to look for that help as soon as possible. Please see Appendix A for Resources. The 90-day Deadline If you are approaching the 90-day deadline to appeal, and have not yet decided whether you want to pursue an appeal, we recommend that you submit your request for an appeal anyway. You can withdraw your appeal later, if you choose not to go ahead. If you do not make a request for a Review Tribunal and then change your mind after your 90-day deadline has expired, you are likely to lose your opportunity to appeal. If you lose your chance to appeal, your only option will be to make a new CPP-D application. You can either send the OCRT your own letter of appeal or you can use the Notice of Appeal form that is available on the OCRT website. Please see Appendix A for information on the form. When sending in a notice of appeal, you do not have to explain the reasons for your appeal. All you have to do is state that you want to appeal HRSDC s recent decision on your CPP-D benefits. A hearing date will not be set for several months, so there is no hurry. When you send in your notice of appeal be sure to include: The date, Your name, address, telephone number and Social Insurance Number, and Your signature. If possible, include a copy of the Reconsideration decision letter you are appealing, and make a note on the copy showing the date you actually received the decision letter. The Hearing File As soon as the OCRT receives your request for a Review Tribunal, they start building the Hearing File. They ask HRSDC to send them all the relevant CPP-D case file information you have submitted during the application and Reconsideration process. This includes your CPP-D application, medical information, doctors letters, record of earnings, CPP

12 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 12 contributions, decision letters and adjudication summaries. Also included will be the OCRT correspondence and any new information you have sent in. You should wait until you receive a copy of your Hearing File from the OCRT, before you put together your appeal arguments. Once you know exactly what material is in the Hearing File, you will be in a better position to get ready for your appeal. If you plan to have a representative help you with your appeal, you should tell the OCRT as soon as possible. OCRT Response The OCRT should send you a letter of acknowledgement within a couple of weeks of receiving your appeal request. With the letter, they will send you a brochure that describes the appeal process and asks if you would like a copy of a bilingual video called Your Best Shot. The video explains how Review Tribunal hearings work and has tips on how to prepare for the hearing. For more about this video, please see Appendix A. At some point, a Client Services Officer (CSO) will be assigned to your case. You can contact the CSO, if you have any questions about the appeal process.

13 page 13 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Case Examples Here are the first Workbook case examples. When you read these cases, you ll learn more about important parts of the CPP-D appeal process. Stella Stella is a 58-year-old woman who has worked many years as a Licensed Practical Nurse (LPN). She left school after Grade 10 and was hired as a nurse s aide shortly after that. A number of years later, after taking upgrading courses, she was hired as an LPN in an extended care facility. Stella stopped working about two years ago due to severe back pain. She has been diagnosed with degenerative disc disease and osteoarthritis. Her symptoms include chronic neck and lower back pain that radiates down her legs and up her arms. Her physical limitations include restricted mobility and range of motion: she cannot bend or lift and cannot sit or stand for long periods. More recently, she has also been diagnosed with major depression. This condition has resulted in low mood, fatigue, interrupted sleep, and poor concentration and memory. Her episodes of severe depression can last for several weeks at a time. Overall, she reports that she feels that her health is getting worse over time. Stella applied for Employment Insurance sickness benefits after leaving work. She received these benefits for 15 weeks and then enrolled in a job training program that teaches computer skills. Her attempt at retraining was unsuccessful: she had to drop out after only two weeks. She was not able to sit at her work station and focus on the assigned tasks due to pain and depression. She applied for CPP-D. Stella s CPP disability application was denied. She received the denial letter about four months after she submitted the application. The letter said that the information she provided did not satisfy HRSDC that her disabilities are severe enough to prevent her from working. HRSDC concluded, that although she could not do her old job, she still had the ability to do some type of work suitable to her condition. Stella decided to request a Reconsideration a few weeks after receiving the denial letter. She wrote a letter and enclosed a letter from her family doctor saying she believed her patient was unable to work, but did not provide reasons why. X-rays were also included along with a letter from a specialist stating that, although there was some evidence of arthritis in her neck and lumbar spine, he was recommending physiotherapy, exercise and medication to alleviate her pain. At the time of the Reconsideration, she had just

14 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 14 started seeing a counsellor and psychiatrist, but no psychiatric reports or assessments were available. About six months later, Stella received a letter stating that the HRSDC Reconsideration adjudicator upheld the denial of disability benefits. Reasons for denial included: There was not enough objective medical evidence to establish a finding of a severe disability, and The specialist had indicated her medical condition was likely to improve with the appropriate treatment. Therefore, HRSDC concluded she would be able to return to work in the near future. Questions 1. Could a case be made that Stella s medical conditions are a severe and prolonged disability? 2. Is it likely that Stella meets the contributory requirements for CPP disability benefits? 3. Besides her medical condition, what other aspects of her situation might help her case? Answers 1. There are facts that show that Stella has a severe and prolonged disability. Physically, she has a chronic back condition with persistent symptoms which make her unable to work as an LPN. There is documentation of her degenerative disc disease and osteoarthritis. Mentally, she has major depression which further restricts her ability to work and perform activities of daily living. She has been referred to a psychiatrist. All these conditions together arguably prevent Stella from performing any work. Stella also reports that she feels her disability is getting worse over time. Her attempt to take a re-training program was also unsuccessful due to her health limitations. 2. Stella s record of earnings and contributions to the plan will be in her hearing file. We can assume that she has sufficient contributions to qualify for CPP-D. First, the Reconsideration letter did not indicate there was a problem with her qualifying date. Second, we know that Stella has been working since she left school and stopped working, just under two years ago. It is likely that she made valid CPP contributions for at least 25 years, including three of the last six years. This means she has not reached the end of her MQP yet.

15 page 15 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Jack 3. In addition to her medical condition, there are a number of other factors that affect her ability to obtain substantially gainful employment. For example, she has a limited general education and has only had one type of job for most of her life. Her advanced age is also a consideration. Stella would not be a good candidate for retraining which has been tried unsuccessfully. Jack was working as a foreman on a construction site about two years ago, when he was injured on the job. He sustained multiple fractures to his right shoulder and has not been able to work since. He is right-handed and, along with chronic pain, he has limited use of his right arm, even after treatment. Jack is 45 years old and has had a number of different jobs over the years. He has made regular and consistent contributions to the Canada Pension Plan. He has a college education. Initially, he thought that he would only be off work for a couple of months after his injury. However, his recovery has taken much longer than expected due to complications and a couple of surgeries that did not produce the expected results. His family doctor advised him that he may have a permanent disability. At the time of his Reconsideration Request, his orthopaedic surgeon wrote a letter to his family doctor stating she believed his shoulder problem could be rectified by another surgery and she was hopeful he would eventually regain the use of his right arm. This letter was made available to CPP. When Jack received the Reconsideration decision, he had not had the proposed surgery it was still about two months away. The Reconsideration decision was denied because HRSDC said there was medical evidence showing his disability would be rectified by surgery. Questions 1. What challenges does Jack face in qualifying for CPP disability benefits? 2. Because he has not had his shoulder surgery yet, should Jack wait to submit his notice of appeal? Answers 1. Jack faces a challenge because there is a chance his medical condition may significantly improve if he has another surgery and he may be able to work. However, he cannot be sure. Past surgeries were not as successful as he had hoped, and his doctor has told him he may have a permanent disability. On the positive side, if the surgery is successful there is a good chance he would be able to get back to work

16 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 16 before too long and he would not have to worry about disability benefits. Another consideration is that his level of education and range of experience may mean that retraining is a viable option. However, if he assumes the best and does not submit a notice of appeal within 90 days, and his medical condition does not improve, he may miss out on the disability benefits he is entitled to receive. 2. Waiting until the end of the 90-day appeal period will not be enough time to know whether the surgery is effective or not. Therefore, it would be in Jack s best interest to assume the worst and file the notice of appeal before the 90 days expire. It can take several months for a Review Tribunal to be scheduled and adjournments can be requested which should give him more time to assess any improvement or deterioration in his health condition. Marco Marco decided to apply for CPP early retirement benefits, when he turned 60. Prior to taking early retirement, he did not have any significant medical conditions that limited his ability to work. When Marco was 63, he was examined by his family doctor who detected a number of cellular abnormalities. He was sent for a number of tests and he was diagnosed with a rare, aggressive form of cancer by a cancer specialist. In the opinion of the specialist, the cancer had established itself in the past few months and his prognosis is poor: Marco may have only a few years left to live. Questions 1. Can Marco qualify for CPP disability benefits? 2. Would it make a difference if Marco was not on CPP early retirement? Answers 1. Marco cannot qualify for CPP disability benefits. He has been on CPP early retirement benefits for more than 15 months and he became disabled after he started receiving early retirement benefits. Even though his cancer is severe and prolonged right now, the Review Tribunal cannot grant disability benefits on compassionate grounds. 2. Not necessarily. In order for Marco to qualify for disability benefits, his medical condition must have prevented him from working before the end of his Minimum Qualifying Period. If his cancer had developed after this time, it would still be too late to qualify for disability benefits.

17 page 17 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Checklist For Submitting a Notice of Appeal Make sure you have done the following: Made a note of when you received the Reconsideration decision letter and calculated when your notice of appeal is due at the OCRT (90 days later); Reviewed the Reconsideration decision s reasons for denial; Decided whether you have a reasonable chance of success with an appeal to a Review Tribunal; Decided whether you need help with your case; and Submitted your notice of appeal to the OCRT before the 90-day deadline.

18 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 18 Preparing Your Case Reviewing Your Hearing File The Tribunal will send you a copy of the Hearing File two to three months after acknowledging your appeal. They will also estimate when your hearing will be held. It is very important to carefully review and familiarize yourself with all the information in the Hearing File. The Review Tribunal panel will read the Hearing File first when getting ready for your case. As you go through your Hearing File, check to see if there is any important information that is missing. In particular: Read all the medical letters and reports, Check the contribution record, and Look at HRSDC s adjudication summary notes for the application and Reconsideration decisions. You should keep the following questions in mind as you review your Hearing File: Is there new information in the file you were not aware of? Is there any important information that has been left out? What information supports your claim that you should qualify for CPP-D? What information creates doubt about your eligibility for CPP-D? Do the HRSDC adjudication notes give you more insight into why you were turned down? The answers to these questions will help you to decide what to do next. Remember to focus on identifying the things you need to do or obtain, to support what you are going to say at your Review Tribunal.

19 page 19 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Key Strategies for Success Here are some things to think about when putting together your case: It is up to you to prove that you meet the CPP-D eligibility criteria. It is not up to HRSDC to prove you do not. This means that it is your responsibility to identify and provide evidence showing that you fulfill the requirements of the CPP-D definition. Remember, the key is to prove you have a physical and/or mental condition that is both severe and prolonged, as defined in the Act. See Appendix C for the full definition of disability under the CPP legislation. Applying for disability benefits involves talking about your limitations and what you cannot do. Throughout the application and appeal process, you have to explain your health-related restrictions and how you can no longer do things you used to be able to do. This can be difficult, but it is very important that you acknowledge your limitations. The Review Tribunal needs to understand the full impact of your disability. Try to gather as much medical evidence to support your case as possible. Medical evidence, such as results of lab tests, X-rays and psychiatric assessments, is given a lot of weight by a Review Tribunal. Doctors opinions are also important, but they need to be detailed and provide the facts on which the opinion is based. A simple conclusion by the doctor that you are disabled will not be very helpful in your appeal. The doctor must explain why. The opinions of family doctors are always important, but there are some conditions that require a diagnosis by a specialist. For example, a Tribunal will not accept the diagnosis of a mental condition from a family doctor. The same is true of some other conditions such a fibromyalgia. Talk to your doctors and any other health professionals involved in your care. Find out what they can to do to help you qualify for disability benefits. It is not unusual for health professionals to lack knowledge about how your disability affects you on a day-to-day basis or what problems you have performing work activities. Educate your health care providers and make sure they are aware of your current circumstances. Many doctors will charge for a detailed medical letter. Although the OCRT will pay for the cost of obtaining copies of any existing medical records that are not part of the Hearing File, they will not reimburse you for the cost of obtaining new medical opinions. However, a good medical letter is a sound investment because it will improve your chances of success. Do not ask a doctor to write a letter, unless they support your claim.

20 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 20 If a health professional agrees to write a letter or you obtain new medical reports, gather them as soon as possible. You should review the new information for its relevance and submit it to the OCRT in advance of the Tribunal, if possible. Do not submit information that does not help your case. On the other hand, if your Hearing File already contains references to medical reports that are not on file or indicates that you have appointments coming up in the near future, you can be sure that the Review Tribunal will ask questions about the missing information or the outcome of the new appointments. You should be prepared to deal with these questions. Although medical information is important, consider other information that will help your case. For example, have you had any vocational assessments or taken any job training programs? Any information that shows your barriers to work or re-training is useful. A Review Tribunal is supposed to use a real world context to understand and assess your disability. This means, for example, that a 55-year-old person with a Grade 5 education, who has worked as a parking lot attendant all his life, cannot reasonably be expected to find work as an accountant. However, an accountant could be reasonably expected to find work as a parking lot attendant. Are there factors such as age, education and language skills that limit your ability to find new work or to be retrained? These are factors that can help your case. A month or two before your Review Tribunal, a Client Service Officer from the OCRT will contact you to see how things are going. Use this opportunity to ask any questions you have about your Tribunal.

21 page 21 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Obtaining Additional Information One of the most important things you can do to prepare for your Review Tribunal is to gather new information that supports your case. In making its decision, the Review Tribunal can consider any information that was previously submitted to HRSDC during the application and Reconsideration process. The panel can also consider any new information you or HRSDC submit. Medical Letters It is often important to include a letter from your doctor that supports your case. Make sure your doctor realizes that, to be eligible for CPP-D, you need medical evidence showing: You have been regularly unable to pursue substantially gainful employment, since your MQP ended, and Your condition is unlikely to improve in the foreseeable future. Be sure to show your doctor a copy of the letter HRSDC sent you denying your Reconsideration request. If your medical information is out of date or if you have started seeing new health professionals, you should ask for letters and medical records that will address your current health-related restrictions to work. It may be necessary to clarify any opinion that was previously given to HRSDC. Other Supporting Documentation Health Professionals In addition to letters from your doctors, you may also provide the OCRT with letters from other health professionals who have been involved in your treatment and care. For example, you can request letters from physiotherapists, mental health workers, nurses, podiatrists and psychologists, to name a few. Many of these professionals can provide relevant information that could help your appeal. Work-Related Contacts You may also provide the OCRT with letters from past employers and vocational rehabilitation personnel, who can comment on how your disability affects your ability to maintain employment.

22 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 22 Disability Programs If you have not done so already, it may be helpful to submit documentation related to any other disability benefits programs you have applied for. Be sure to review the documentation for relevance or for any information that could be used to discredit your appeal. Do not use documentation that contains unhelpful or confusing information. Family and Friends You can also ask family and friends to provide letters, if they can comment specifically on how your disability affects your ability to maintain gainful employment. Delays in Gathering Information Occasionally, there may be a crucial piece of information that you cannot reasonably expect to obtain in time for your Review Tribunal hearing. In these special situations, you should contact your Client Service Officer. It may be possible to postpone the Review Tribunal hearing and have it re-scheduled to a later date. This may also be a good time to start doing legal research. Appendix D in this Workbook looks at some important decisions that will show you how the law has been interpreted in Tribunals. Guidelines for Submitting Additional Information The Review Tribunal has developed guidelines you must follow when submitting additional information. The Tribunal expects you to provide all information you plan to use two months before the hearing date. While it is possible to go against this policy and send materials in later (or even at the hearing itself), we recommend you to get your information in by the two month deadline. If the Review Tribunal receives a lot of new information at the last moment, it may decide to adjourn the hearing to give the panel members enough time to review it thoroughly. This could result in a delay of up to six months. If everyone has a chance to review the material in advance, the hearing will be more efficient. Even better, HRSDC will sometimes offer a settlement without a hearing, on the basis of new information that is provided in advance.

23 page 23 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Case Examples Stella Questions Stella makes a list of all the health professionals she has seen about her physical and mental health: Dr. Brown has been my family doctor since I see her about once every three months. Dr. White, rheumatologist. One visit in September Dr. Black, psychiatrist. My first visit was in April I see her once every two months. Jack Green, registered psychologist. I have been seeing him once a month since September Susan Grey, physiotherapist. I first saw her for three visits in I went back to see her for two visits in the fall of Stella also notes there are a number of other people, in addition to the above health professionals, she can ask to write letters of support. This includes her former employer, the vocational training instructor that recommended she drop out of the computer training course, and even her family members. 1. Stella does not have much information about how her depression affects her daily functioning and her ability to work. Should she ask for letters of support from her psychiatrist and counsellor, or is it too late to get additional information about her mental condition? 2. Will the Review Tribunal attach more importance to certain letters and opinions, depending on who they are from? 3. Once support letters are obtained, should they be sent to the OCRT immediately, or should Stella keep them until she goes to the Review Tribunal hearing?

24 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 24 Answers 1. It would be worthwhile for Stella to seek letters, and any other relevant reports, from both her psychiatrist and her counsellor. It is not too late. Her depression is having a significant impact on her daily functioning and her ability to work. It is important that she give the Review Tribunal a complete picture of her disabling conditions. Her psychiatrist and counsellor are qualified to provide relevant information about her mental health condition. 2. Yes, the Review Tribunal will place different levels of importance on different kinds of information, depending on who provides that information. One factor the Review Tribunal will consider is medical expertise. For example, a psychiatrist would likely be considered an expert in mental health disorders, but not in osteoarthritis. Another factor the Review Tribunal will consider is how well the doctor (or other witness providing information) knows the appellant. For example, a family doctor who has seen Stella over a long period of time on a regular basis may have more insight into her overall health limitations than a specialist who sees her once or twice. 3. We do not recommend that you send in support letters one at a time or keep everything until the Review Tribunal hearing. The best course of action is to compile all your supporting documentation, along with your written submission, and mail it to the OCRT office in one package as soon as you can. If you need to send more materials later, you can. Joyce Joyce stopped working as an office manager about eight years ago, as a result of injuries sustained in a motor vehicle accident. Due to financial pressure, she started looking for part-time work about four years ago. She was fortunate to be hired by an acquaintance to work in a flower shop for about 10 hours per week. Her employer allowed her to work at her own pace, in the back room of the shop. Even so, Joyce had to take frequent rest breaks, increase the amount of medication she took on the days she worked and take many sick days. For a period of 18 months, she earned about $500 per month. After that time, even working a few hours per week was too much for her. Joyce s Reconsideration decision letter denied her CPP-D on the basis that she did not have a disability that was both severe and prolonged, and that had also been continuous since her MQP ended eight years ago. The adjudicator referred to the fact she had been working part-time, with the support of her doctor, and that the information showed she still had the capacity to do some types of work suitable to her limitations after the date she last qualified for CPP-D.

25 page 25 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Questions Answers 1. Does the fact that Joyce has worked after her MQP mean she will not qualify for CPP disability benefits? 2. What can Joyce do to establish that she meets the definition of disability, even though she has worked after MQP? 1. If Joyce had the capacity to work on a full-time basis since her MQP, it would be very difficult for her to qualify for CPP-D. However, Joyce s medical condition prevented her from working more than 10 hours per week, she often had to take time off and her monthly earnings were very low. It can be argued she still has a severe disability because the work activity she engaged in was neither regular nor substantially gainful. The only reason she was employed was because of a benevolent employer accommodating her disability. 2. Joyce should talk to her doctor(s) about getting a letter that explains why her medical condition has regularly prevented her from working in a substantially gainful occupation. It is important for the doctor to point out that, during the months she worked, she was incapable of working any more than she did and that she stopped working after 18 months because of her disability. 3. Joyce could also get a letter from her former employer explaining that he needed to accommodate Joyce s disability on an ongoing basis and it was not a typical employment relationship. Joyce could also write a letter explaining the challenges that prevented her from working more and the negative health effects she experienced because of her efforts to work. David David has a significant neurological disorder and has been on provincial disability assistance consistently for the last 10 years. The provincial government has now told him he must apply for CPP disability benefits. David s CPP-D application was considered under the late applicant provision. The Reconsideration decision stated there is not sufficient information to confirm he had a severe and prolonged disability by the time he last qualified for CPP-D nine years ago. The challenge that David faces is he has only been seeing his current doctor for two years and his medical file is incomplete. His previous doctor, who saw him for over 20 years, is retired and is no longer living in the country.

26 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 26 Questions Answers Ten years ago, David was hospitalized due to his neurological disorder, but the hospital was in a different part of the province. 1. Is there any information that David can obtain to show that he was disabled as of nine years ago (the last time he had sufficient contributions to qualify for CPP-D)? 2. Is there anything to indicate David has been unable to work continuously since his Minimum Qualifying Period? 1. David can ask his current doctor, or the College of Physicians and Surgeons, for help to locate his former doctor s records. It is also important for David to contact the provincial government and request a copy of the provincial disability benefits application that was completed about 10 years ago. Provincial disability benefits applications have a section that must be completed by a medical practitioner. This section will likely address the applicant s restrictions to daily living at the time the form was filled out. David can also contact the hospital he attended 10 years ago and request a copy of his hospital records from that visit. 2. Yes. Because David has been on provincial disability benefits consistently for 10 years, and provincial disability benefits are income tested, it is extremely unlikely that he would have had any gainful work during that period. Also, if his disability was severe enough to prevent him from working 10 years ago, and his medical condition has not improved, then it is unlikely he would have regained the capacity to work.

27 page 27 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Checklist for Preparing Your Case Make sure you have done the following: Received and reviewed your Hearing File, Understood the specific reasons HRSDC has cited for the denial of your CPP-D, Decided what additional supporting documentation you need to get and from whom, Made contact with your doctor(s) and any other people you plan to obtain letters and written information from, and Planned to obtain all supporting documentation well before the time it should be submitted to the OCRT (two months before the hearing date).

28 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 28 Deciding How to Present Your Case Representatives and Support People You may also want to have a representative assist you with presenting your case at the Hearing. A representative can be anyone you choose: a friend, family member, union representative, community advocate, health professional or lawyer. It may be easier for someone else to assess the strengths and weaknesses of your case, and plan the most effective presentation to the Review Tribunal. If you plan to have someone help you with your appeal, it is a good idea to advise the OCRT as soon as you can. You can notify the OCRT by writing a letter and/or sending an Authorization to Disclose Form which allows the OCRT to share information about your case with your representative. You can access this form from the OCRT website or you can call them for a copy. Please see the Contact and Resources section at the back of this Workbook for information. You can also ask a friend or family member to attend the hearing simply to support you. Are There Witnesses Who Can Testify on Your Behalf? Oral testimony (from you and other witnesses) is also an important source of information for the Review Tribunal. At the hearing, the Review Tribunal panel will encourage you to tell your own story and answer questions from panel members and the HRSDC representative. If there is someone else available who has direct knowledge of your case, you can bring them along as your witness. Tribunals are often influenced by witnesses who know you well (older children, spouses/partners, close friends) and can provide evidence about how your life has changed over time. Since hearings are scheduled to last an hour and a half, the number of witnesses should be limited to one or two at most. One of the best kinds of witness is a health professional because most CPP-D cases hinge on information about the degree of your health-related limitations. Unfortunately, many doctors are unable to take the time to attend a hearing. Also, you may be expected to pay for their time. You can make arrangements with the Review Tribunal to have a witness provide testimony by speaker phone, rather than in person. A doctor

29 page 29 Going to the CPP Disability Review Tribunal: A Self-Help Workbook may be more willing to help with your hearing without charging you, if they can do it from their office. Job placement or vocational counselors are also good potential witnesses because they know which skills are required in the job market. Of course, you are the best witness because you are in a position to tell the Review Tribunal about your condition and how it prevents you from working. Tips About Witnesses If someone agrees to testify on your behalf, be sure to speak to them before the hearing. You do not want to be surprised. Find out what they can say that will help your case and review with them the issues you want them to respond to. A witness should expect to answer questions from the panel members and the HRSDC representative. Do not use a witness, unless the person agrees you have a severe and prolonged disability. If a potential witness cannot come to your Tribunal Hearing, you can ask them to write a letter to submit as written evidence. Or, you can contact the OCRT and see if the Review Tribunal would be willing to let the person give evidence by telephone on the day of the hearing. The OCRT does not pay any costs for witnesses. The Hearing Date Hearings are usually scheduled to take place about eight months after you filed your appeal. A CSO will contact you to ask if you are ready to proceed and to set a date. The HRSDC Submission HRSDC prepares a written submission for the Review Tribunal the HRSDC Explanation of Decision Under Appeal explaining why they think you do not qualify for CPP-D. The submission may be in the Hearing File, but it will more likely be provided separately at a later date. It includes: A summary of the issue under appeal, Some of the information you have submitted,

30 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 30 A list of the medical documentation and other information HRSDC relied on to make their decision, and HRSDC s reasons for denying your appeal. At the Review Tribunal, the HRSDC representative will use this submission as the basis for any comments they make. By getting the HRSDC submission in advance, you can consider and plan your response to HRSDC s position. There should not be any surprises for you about what HRSDC says at your Tribunal. Preparing Your Written Submission There are several reasons why it is a good idea to prepare a written outline of your argument. For most people, going to a Review Tribunal hearing is stressful. When you are nervous you can go blank or forget important things you want to say. With a written statement or outline, you do not have to depend on your memory. Even at the best of times, it can be difficult to remember important details. Writing things down will help you to organize the information you want to present and ensure you include all the points you want to make. If you write things down in advance, you can improve what you want to say. You can prepare several drafts, until you are satisfied you have included everything you believe is important. You may also find it helpful to show your outline to other people for feedback or practice reading it aloud.

31 page 31 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Key Issues to Include Your written submission should address the most important issues of your case. Here are some key topics you should try to include in your submission. 1. A brief autobiography saying where and when you were born, your education, and a summary of your work history. If you have limited formal education, or if you are not fluent in the official language where you live, be sure to note this in your submission. 2. Details leading up to your application for CPP disability benefits: State when you stopped working and when you think you were unable to work in any job because of your disability. If you tried to work but couldn t, explain how your disability made it impossible. If you looked for work but couldn t find a job, explain how your disability made it impossible to get a job. Remember that a lack of jobs in your region does not, on its own, make you eligible for CPP-D. You must show that your disability regularly prevents you from pursuing substantially gainful employment. If you have been doing some work, explain why this work is not substantially gainful, either because your attendance is unpredictable or the amount you make is very low. If you have been doing a course or other training since the date you became disabled, explain why your ability to do the training does not mean you are able to pursue substantially gainful employment. If your record of earnings shows income for a year you did not work, be prepared to explain the earnings. Otherwise, the Tribunal may conclude that you were working. If you have received regular Employment Insurance (EI) benefits since the date you became disabled, explain to the Tribunal why you told the EI authority that you were ready, willing and able to work. Perhaps you were overly optimistic or were not then ready to accept you were disabled in the sense required for CPP. 3. What your MQP is (see Appendix B for a discussion of MQP). 4. Details about your medical condition(s).

32 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page Which health professionals you have seen and when. If there are conflicting health-related reports, it is best to tackle this issue head on and argue which report should carry more weight. You might consider the following: Which doctor was more thorough? Who spent more time with you? In the case of specialists, are they providing information about their area of specialization, or are they discussing something your family doctor actually knows more about? 6. The treatments you have tried and how effective they have been. 7. If your family doctor has referred you to specialists or for treatments and you have not followed up, why not? Are specialists available? Are you on a wait list? Are treatments available in your area? Can you afford them? 8. Why doing a different kind of a job or being retrained is not a realistic option. 9. If you refer to the documents in your Hearing File, provide the page numbers of the documents. 10. Conclusion: summarize your most important points. The OCRT expects that written submissions and any other supporting documentation be sent to the OCRT office at least two months in advance of the hearing, so this material can be distributed to the panel members and the HRSDC representative. If you cannot send it that far in advance, send it as soon as possible. If you cannot send it in advance at all, bring five copies to the hearing, so you can give everyone a copy of your written submission. You should be prepared to answer questions about your written submission. If your submission was sent in before the hearing, the Tribunal will have read it in advance. If you hand in your written submission at the hearing, the Tribunal will probably either ask you to read it out or take the time to read it during the hearing.

33 page 33 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Legal Research In addition to oral and written testimony, it is a good idea to look into the case law that may help your case. Using case law in a written submission to the Review Tribunal can be a powerful tool. Try to find cases that show how previous claimants in a situation similar to yours have succeeded in getting CPP-D. In your written submission, refer to these cases and explain how your case is similar. Review Tribunals will only pay attention to certain types of decisions. Previous Review Tribunal decisions are not binding on the Review Tribunal and have little, if any, persuasive value. While Pension Appeals Board decisions are not binding on the Review Tribunal, the Review Tribunal is often influenced by them. The Tribunal Book of Authorities contains many PAB decisions. It is a very good idea to refer to any Pension Appeals Board decisions that support your case. Federal Court decisions regarding CPP issues are binding on the Review Tribunal. Again, it is a very good idea to refer to any court decisions that support your case. If you choose to refer to case law in your written submission, always provide a citation for each decision that you use. For Pension Appeals Board decisions, the citation should be formatted in this way: Tasse v. MSD (PAB CP24087, November 27, 2006). The Tribunal s CPP Book of Authorities has a link to all the leading CPP cases at the Pension Appeals Board and Federal Court levels. This is a valuable resource put together by the OCRT legal department for use by Tribunal members. Scan the index to see if there are cases that refer to your type of disability or relate to other issues in your appeal. The Pension Appeals Board also publishes all of its decisions, including ones that are not in the Tribunal s Book of Authorities. See Appendix A for more information about how to access this information. Appendix D lists some decisions of interest. If you are using cases from the CPP Book of Authorities, you do not have to provide the Review Tribunal with a copy of those cases. However, you should send the Review Tribunal a copy of any cases you are relying on that are not in the CPP Book of Authorities.

34 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 34 Case Examples Stella Questions Answers Stella has obtained a number of letters of support from health professionals in support of her case. However, none of these people are available to testify as witnesses at the Review Tribunal hearing. Stella is considering asking her husband, Antonio, to be a witness at the hearing. 1. Because Stella s husband is not a health professional, is it worthwhile for her husband to testify at her hearing? If so, what sort of issues can he address? 2. Will Antonio be questioned by other people at the hearing? 3. If Stella has information that does not appear supportive of her claim, is she required to submit it to the OCRT? 1. There are several good reasons for Stella s husband to testify at her hearing. Although he is not able to offer a medical opinion, his observations about changes in his wife s condition over a period of time, and how her health limitations restrict her day-to-day activities, can be valuable information for the Review Tribunal to hear. Antonio can also verify what his wife says about her disability. 2. Antonio or any other witness can be questioned by the panel members or by the HRSDC representative at the hearing. Each witness must be prepared to clarify or expand upon anything he or she may say at the hearing. 3. Stella is not obliged to submit anything that is not supportive of her case. However, it is not unusual for differing opinions about certain aspects of her case to be contained in the Hearing File. Stella can anticipate there might be some difficult questions that need to be answered. Prior to the hearing, Stella needs to be aware of both the positive and negative elements of her case. If there are issues that are difficult to explain, she should carefully consider how to approach these issues and may wish to seek advice.

35 page 35 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Joyce Question Answer Joyce has successfully obtained a letter from her doctor stating she has never been able to work more than 10 hours per week since her MQP, as a direct result of her physical limitations. She is now wondering if there is any case law that will help her with the argument that her medical condition prevents her from pursuing any substantially gainful occupation. 1. After reviewing the case law examples in Appendix D, is there a case that Joyce can refer to that supports her claim that she was unable to engage in substantially gainful employment after her MQP? 1. In Tasse v. MSD (PAB CP24087, November 27, 2006), the Pension Appeal Board examined the issue of what constitutes gainful employment and entitlement to CPP disability benefits. There are a number of parallels between Ms. Tasse s case and Joyce s. For example, both Joyce and Ms. Tasse were incapable of working full-time as a direct result of disability (this was confirmed by the doctors involved) and their employment activity was not regular. Furthermore, Ms. Tasse s earnings of approximately $500 per month, which are similar to Joyce s earnings, were recognized as being below the poverty line set by Statistics Canada and thus not substantially gainful.

36 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 36 Checklist for Deciding How to Present Your Case Make sure you have done the following: Made a note of the time, date and location of your Review Tribunal hearing, Decided whether you will ask a witness to testify at your hearing, Looked into any case law that supports your argument that you qualify for CPP-D, Prepared a written submission (this is highly recommended), and Submitted your written submission and supporting documentation to the OCRT or as much of it as possible well in advance of the hearing.

37 page 37 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Making Your Presentation Review Tribunal hearings are usually held in hotel meeting rooms in your community. Allow extra time to arrive at the hearing early. Do not arrive late. Bring five copies of any documentation you have not previously sent to the OCRT. As noted earlier, it is important to make every effort to submit written submissions and letters of support well in advance of the hearing. Although the Review Tribunal can accept new material, if this material is too extensive, the Chair may adjourn the hearing or refuse to accept it. A Step-by-Step Look When the hearing is about to start, a panel member will invite you and anyone you have brought with you into the meeting room. A representative of HRSDC will usually also attend to explain why they have denied your request for CPP. The Chair will welcome you and ask everyone to introduce themselves. The Tribunal Chair will then ask you and any witnesses to affirm they will tell the truth. The Chair will ask if everyone has a complete Hearing File, including any information that was sent to the OCRT after the Hearing File was compiled. You will be asked if there is any last information you want the panel to consider. This is your last opportunity to give the panel and the HRSDC representative any new information or written submissions you have not already provided. Usually, the panel will take some time to read the new material. The Chair will ask both parties if they agree on the Minimum Qualifying Period (MQP). If you disagree with the MQP that HRSDC has given, this is your chance to say why (see Appendix B for more information on MQP). The Chair will ask you to present your case first. If you have asked a witness to attend, you may ask that your witness give his or her evidence before you give yours. If you go first, your witness may be asked to leave the room while you give your evidence.

38 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 38 Presenting Your Case Now, it is time to present your written submission, if you have one. If you sent your submission to the OCRT in advance, you probably don t need to read it all aloud, but you may want to highlight some of the key points and talk about any new material you have given the panel since you sent in the written submission. If you didn t provide the written submission to the OCRT in advance, then it is usually a good idea to read the submission out loud so the Tribunal can hear your arguments. You may also tell the Tribunal your key points or you may simply tell the panel that you are ready to answer questions. Whether you have a written submission or not, be prepared to answer questions from any or all the panel members and the HRSDC representative. The questions can be about anything in the Hearing File, written submissions, supporting documentation or any of the oral testimony. An example of a typical question from a panel member is to ask you what an average day is like. After the panel and the HRSDC representative have asked you questions, it will be the representative s turn to explain why HRSDC thinks you do not meet the CPP-D eligibility criteria. The representative will base his or her presentation on the HRSDC Explanation of Decision Under Appeal document. Once the representative has finished, the panel will ask them questions. You will also be given the opportunity to ask questions. After all the Tribunal has heard your evidence and arguments, and HRSDC s evidence and arguments, and has asked all its questions, you will have a chance to make closing remarks. Although it is not necessary to say anything further, we recommend that you take a couple of minutes to summarize the key points of your case. In your closing remarks, it is helpful if you can summarize why you disagree with HRSDC s reason for saying you are not eligible for CPP-D. For example, if HRSDC s denial letter said even though you have a disability you could still do another type of work, you can conclude by reminding the Panel of all the evidence you presented that shows you cannot work in any capacity.

39 page 39 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Tips to Help You at the Review Tribunal Be yourself. The Review Tribunal hearing is your opportunity to tell your story in your own words. The proceedings are intended to be as informal as possible. It is important to be polite, but you don t need to dress or act formally. It is normal to feel nervous. Take deep breaths. Ask for a break if you need one. If you are not clear about how things work, ask questions. Panel members cannot give you medical or legal advice about your case. They are there to hear all the facts of your case and make a decision based on the CPP legislation. Stay focused on the reason you are there: to explain why you think you meet the eligibility criteria for CPP-D. Remember, the panel cannot allow your appeal on compassionate grounds or on the basis of financial need. It is your job to explain why you think the facts of your case satisfy all the eligibility requirements. The HRSDC representative is entitled to see and comment on any new information you give to the panel members. Be sure to give him or her a copy of anything you are giving to the panel members. Be prepared to answer some difficult questions. Panel members may zero in on the weak parts of your case. Be truthful and straightforward in your answers. It is better to answer I don t know than to guess at an answer you are not sure about. Be respectful to everyone at the hearing. You may get frustrated or angry with some of the questions. Try to stay calm. If you disagree with something that is said, try not to interrupt when someone is talking. Write down what you want to say and say it when you are given the chance to respond. Always follow the directions given by the Chair. It is impossible to know what panel members are thinking. Do not make assumptions, other than assuming that the panel has an open mind.

40 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 40 Case Examples Stella s submission to the Review Tribunal Introduction My name is Stella C. I am a 56-year-old woman who was born and raised in Vancouver, BC. I have been married for 28 years and have two adult children. My daughter helped me write this submission. I will be asking my husband, Antonio, to testify at the hearing. My Education and Work History I have a Grade 10 education and it was never easy for me at school. I have wanted to be a nurse for as long as I can remember. It took me a while to complete the LPN course I was working in a boarding home as a nurse s aide and taking night courses. I finally got my LPN qualification when I was 32. I have worked in Extended Care facilities since then, until I had to stop due my health problems. My back condition started affecting my work about five years ago. I was taking sick days due to recurring pain. I asked to be assigned to lighter duties in This happened, but I struggled to work full time for about a year. I left my job in June 2010 due to poor health and applied for medical EI benefits. My Contribution Requirements (Minimum Qualifying Period) According to HRSDC, I will last meet the Minimum Qualifying Period in December I believe that this MQP calculation is correct. My Medical Conditions My back problems started when I fell off a ladder in After the fall, I aggravated my back condition at work when I tried to lift heavy patients. At first, the back pain was only bad some of the time, but by 2009 I was experiencing pain and restricted movement on a daily basis. My family doctor sent me for X-rays and I was diagnosed with degenerative disc disease and osteoarthritis of the neck and lumber spine [page reference]. In 2010, the rheumatologist, Dr White, agreed with the diagnosis and has listed my current physical restrictions [page reference]. I am not able to raise my arms without severe pain. I cannot bend and lift. I experience pain when standing and sitting for more than a few minutes. I have been diagnosed with major depression. I first experienced periods of depression when I was a teenager. At that time, I did not get help. Since the onset of my back problem and the debilitating pain, my depression is worse and the periods of low mood last longer. A psychiatric assessment was done by Dr. Black in April 2011 [page reference]. During the last two years in particular, I have experienced poor concentration, insomnia, lack of motivation and irritability. When I go through a bad spell, which can last

41 page 41 Going to the CPP Disability Review Tribunal: A Self-Help Workbook several weeks, I often don t get out of bed in the morning or leave the house. I become very isolated. I don t think I could have managed without the help of my husband who makes sure I am eating and taking my medication. Health Professionals I have Seen Dr. Brown has been my family doctor since I see her about once every three months. Dr. White, rheumatologist. One visit in September Dr. Black, psychiatrist. My first visit was in April I see her once every two months. Jack Green, registered psychologist. I have been seeing him once a month, since September Susan Grey, physiotherapist. I first saw her for three visits in I went back to see her for two visits in the fall of Treatments I have Tried Dr. Brown has been giving me prescription analgesics (Tylenol #3) and anti-inflammatories (Naproxin) since My dosages have gradually increased. I usually take between four and six Tylenol #3 tablets per day, although on a bad day I might take as many as eight. I always take two 500mg Naproxin tablets per day. I find that the medication does help relieve the acute pain, but the pain never goes away and I have to limit the medication I take sometimes due to unpleasant side affects. My chronic pain interferes with my sleep and daily activities, and no treatment has resolved the pain and discomfort. I have tried going to physiotherapy on two occasions. I went back the second time because Dr. White suggested I give it another try. My experience is that physiotherapy has tended to aggravate my symptoms so I stopped going. I have been doing limited exercises, however, by following a home program that was recommended by my physiotherapist. Dr. Brown first prescribed me anti-depressants (Prozac) in Dr. Black changed my medication to Effexor last summer. It took me a while to adjust to the new medication and I have noticed some improvement in my mood, but I am still experiencing lengthy episodes of depression. On the recommendation of Dr. Black, I started seeing Jack Green for counseling. I have been going for monthly one-hour counseling sessions since September 2011.

42 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 42 Why My Disability is Prolonged I submit that both my physical and mental conditions are long term and of indefinite duration. My back problem has existed for several years and, in June 2010, it finally got so serious I had to stop working. My chronic pain and restricted movement from my back problem have been getting worse over time. Dr. White wrote that I have chronic conditions: specifically degenerative disc disease and osteoarthritis [page reference]. Although treatment has provided some relief of my symptoms, Dr. Brown in her most recent letter has confirmed that the improvement she anticipated has not in fact occurred [page reference]. As far as my mental health is concerned, I was diagnosed with major depression in April 2011, but I had debilitating symptoms prior to this date: Dr. Brown wrote that I had recurring depression on my CPP-D application [page reference] and I have been taking anti-depressants since Dr. Black has written that my depression has been slow to respond to treatment and can be triggered by my chronic pain. Dr. Black does not know how long my severe depression will last and my counsellor, Jack Green, has also expressed the same concern [see letter]. Why My Disability is Severe My physical and mental impairments are severe enough to prevent me from pursuing any kind of work. I have not been able to work at all since June My back problem and chronic pain stop me from doing any physical work. I have also discovered that my physical limitations make it difficult for me to sustain even sedentary work activities. I would also like to point out that in the last two years, my depression has become a major barrier to securing any kind of employment. When I have episodes of severe depression I lack motivation, I cannot concentrate and I do not want to be around people. These are not the attributes of a reliable employee. Dr. Brown has confirmed that I am unable to work at any job due to my physical and mental conditions: she has also written that my physical symptoms can exacerbate my mental symptoms and vice-versa. [page reference]. Why Retraining is Not an Option It has taken me a long time to come to terms with my disability. When I first left my nursing job, I was optimistic that my health would improve so I could do some other kind of work. I enrolled in a training program as I was hopeful that I could learn to use a computer so I could do some kind of office work. After a couple of weeks, the pain of being seated for over an hour and using a computer was too much for me to handle. I was also very depressed and was not able to keep up with the course assignments. I spoke to my instructor and he suggested I drop the course until such time my health improves (see transcript from job program). Unfortunately, my health has not improved and this has been very hard for me because I used to be an active person. I have gradually lost my ability to work; my income; many of my friends; and my confidence. I feel very alone.

43 page 43 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Conclusion To sum up, when all the documents and testimony are considered, the evidence shows I have a severe and prolonged disability that began before the end of my Minimum Qualifying Period. Therefore, I respectfully request that the Review Tribunal allow my appeal. The Review Tribunal Decision After you and the HRSDC representative have left the meeting room at the end of your Review Tribunal hearing, the panel members will discuss your case in private, keeping in mind all the information in the Hearing File, any new material that was given to them prior to or at the hearing, and all the oral testimony from the people who attended the hearing. The panel will then decide whether there is enough evidence for them to rule that you meet the legislative requirements for CPP-D. They will write up detailed reasons for their decision. The Review Tribunal will send its decision to the OCRT which will send the decision on to you and to HRSDC. The OCRT tries to ensure that appellants receive their decision within eight weeks of their hearing. Beyond the Review Tribunal The Pension Appeals Board (PAB) is the next stage of appeal and, like the OCRT, the PAB operates at arm s length from HRSDC. If the Review Tribunal turns you down for CPP-D, you can ask for a review of this decision by requesting that the PAB give you leave to appeal. You must make this request within 90 days of receiving the OCRT decision letter. A PAB judge will review your request and decide whether you can proceed to a PAB hearing. We suggest you speak with an advocate, if you plan to ask for leave to appeal to the PAB. HRSDC can also request permission for a PAB hearing, if they believe the Review Tribunal s decision to grant you CPP-D benefits was wrong or inconsistent with CPP legislation. In other words, even if you win your case at the Review Tribunal, there is a possibility it can be overturned by the PAB.

44 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 44 If a PAB judge decides to grant a hearing, you will be able to provide any relevant new information before the hearing. We recommend you obtain legal advice before you attend a PAB hearing. Lawyers represent HRSDC at the hearings and doctors are asked to testify as expert witnesses. The PAB decision is mailed to you after the hearing. The only way a PAB decision can be challenged or appealed is by requesting a judicial review at the federal Court of Appeal. For a judicial review to proceed, it must be established that there has been an error in fact or law. Bill C-38 will phase out and abolish the PAB by April 2014 (please see the Preface of this Workbook and Appendix E for details).

45 page 45 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Conclusion This Workbook is intended to provide you with the information and resources to do the best job you can in preparing and presenting your case at Review Tribunal. We stress the importance of case preparation, and understanding the appeal process and the relevant legislation. In addition to the how to steps, we have included useful information in the Appendices. It is important to remember that legislation can change and appeal processes can be altered by government. As we mention in the Preface, we learned when writing this Workbook that Bill C-38 will replace the OCRT Review Tribunal with the Social Service Tribunal. You will need to find out how the appeal process has changed, but the steps you take in preparing your case for an appeal hearing may not be substantially different. We hope this Workbook will be a helpful starting point for you. Your case may not resemble the scenarios in this Workbook or there may be an element of your case that is particularly challenging or difficult to understand. If you have the opportunity, it is always a good idea to seek the advice of an advocate or someone who has knowledge of the CPP appeal process.

46 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 46 Frequently Asked Questions Q. Do I have to attend the Review Tribunal hearing? A. Yes. The Tribunal needs to hear from you. They will have read your file and will have questions to ask you. They need to have an impression of how believable you are. This does not always have to be done in person. There might be unusual circumstances where a person s condition has deteriorated to the point that they can t leave their home, or are hospitalized and their condition is not likely to improve. If a doctor confirms you are unable to attend the hearing for medical reasons, arrangements can be made to give your testimony by speakerphone. This request must be made well in advance of the hearing. You can also ask for an adjournment, if you are temporarily unable to attend. Q. What can I do if I cannot make the hearing or if I have not received important information by the hearing date? A. You can ask for an adjournment. The sooner you make this request the better. Contact your Client Service Officer at the OCRT for direction. You or your representative will need to explain why an adjournment is necessary. If the panel believes there are reasonable grounds to grant an adjournment, it will usually do so. Q. Can I qualify for CPP-D if I have a serious but short-term medical condition? A. CPP-D is not intended for people who have short-term medical conditions. The legislation says a person must have a prolonged disability in order to qualify for CPP-D. However, the line between short-term and long-term is not always clear cut. Also, what initially seems to be a short-term condition may, in the end, turn out to be long-term. Q. One of the reasons I am not working is because there is high unemployment in my area. Does the Review Tribunal take this into account? A. No, a Review Tribunal cannot take into account the fact that it may be difficult to find work due to high unemployment. The panel can, however, consider personal factors such as your age, lack of education and experience that might limit your job choices or make training for other types of work impractical. Q. Do most people win or lose at Review Tribunal? A. In recent years, almost half of the people who go to a Review Tribunal have won their case. According to statistics, in 2003/4 there were 5,387 appeals to the Review Tribunal, and of these appeals 2,335 were allowed.

47 page 47 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Q. If I win my case will my benefits be backdated? A. Yes. In its decision, the Tribunal will show your disability date and the date your benefits begin. The date benefits begin is tied to the date an application is received by HRSDC. The legislation limits the payment of benefits to no more than 15 months prior to the application date. There is a four-month waiting period, so the maximum retroactive benefit that can be paid is 11 months prior to the application date. There is one exception to this rule; please see Appendix D, Retroactive Benefits Due to Incapacity.

48 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 48

49 page 49 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Appendices A Resources Advocacy Organizations Advocacy Access Program CPP Disability Benefits Program produced this Workbook. One of our CPP advocates may be able to help you with your Review Tribunal Hearing. If they cannot help you, they will do their best to refer you to another organization that can. Phone: ; Toll Free: Free resources on federal and provincial disability benefits at:. PovNet This community organization has many free resources, as well as a page that lists advocacy organizations across Canada. Visit: Government Departments Human Resources and Skills Development Canada (HRSDC) Service Canada For applications and Reconsideration Requests The mailing address for Service Canada depends on which province or territory you live. Contact Service Canada by phone to find out which mailing address you should use. For BC residents, the contact information is: PO Box 1177 Victoria, BC V8W 2V2 Phone: (English) Phone: (French) TTY: Website:

50 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 50 Office of the Commissioner of Review Tribunals (OCRT) For Review Tribunal requests When you mail the OCRT about your file, remember to include your Social Insurance Number (SIN) or Appeal Number. P.O. Box 8250, Station T Ottawa, Ontario K1G 5S5 Phone: (Toll free) Phone: (from outside Canada) Fax: (Toll free) [email protected]. For security reasons, do not include your Social Insurance Number (SIN) in any electronic correspondence. Website: Notice of Appeal Form: The OCRT has produced an excellent video called Your Best Shot. It is about appealing to a Review Tribunal. The Catalogue Number is HP24-5/2003-V. To have this video mailed to you, phone the OCRT at the number above. The OCRT also has a Book of Authorities on its website. This resource has a detailed index of decisions by the Courts and Pension Appeals Board that might help your appeal. Just click Decisions on the left side of their home page. Pension Appeals Board (PAB) If you lose at the Review Tribunal, you may want to appeal to the PAB. The PAB posts a link to all of its decisions on its website. Unfortunately the decisions are not indexed. You might want to read a few decisions to get an idea about how appeals are decided and what decision makers look for. P.O. Box 8567 Station T Ottawa, Ontario K1G 3H9 Ph: Fax: (613) [email protected] Website:

51 page 51 Going to the CPP Disability Review Tribunal: A Self-Help Workbook New Social Security Tribunal More details on the new Tribunal and Bill C-38 can be found at: Publications/Publication.aspx?Language=E&Mode=1&DocId= Scroll down the list of changes contained in the table of contents, to Social Security Tribunal and Service Delivery. The changes that affect the Canada Pension Plan appeal process are contained in Division 6 of the Bill.

52 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 52 B Contributions Required to Qualify for CPP-D To qualify for CPP-D, you must have worked and contributed or paid into CPP for a certain amount of time. The Minimum Qualifying Periods (MQP) The MQP is the minimum period of time that you must have worked and contributed to CPP in the years immediately before you became disabled (as defined in the CPP legislation) in order to be eligible for CPP-D benefits. The MQP is calculated by looking at the number of recent calendar years in which you have made contributions to CPP. In order to qualify for CPP-D you must prove that you became disabled by the end of your MQP. The end of a person s MQP is usually December 31 of his or her last qualifying year. If you have worked only four years, then you must have made valid contributions to CPP in each of these four years in order to be eligible for CPP-D. If you have worked more than four years, then in most cases it is necessary for you to have made valid contributions to CPP in at least four out of the last six years before you became disabled. This is known as the four-out-of-six-year rule. It applies to anyone who became disabled on or after January 1, But, if HRSDC determines that you became disabled earlier, between January 1, 1987 and December 31, 1998, the rules are different. You must have worked and contributed to CPP in either: Two of the last three years before you became disabled, or Five of the last ten years before you became disabled. Finally, if you are applying for CPP-D after February 29, 2008, and if you have made contributions to CPP for 25 years or more, then you do not need to have contributions in four out of the last six years. You can qualify if you worked and contributed to CPP in just three of the last six years before you became disabled. (Note: HRSDC is currently limiting its application of this rule to people who became disabled on or after December 1, 2006, but there is a good argument the rule should apply to anyone who applies after February 29, 2008, regardless of when they became disabled.)

53 page 53 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Special Provisions In some situations, or special provisions, you may be eligible for CPP-D even if your contributions do not meet the standard requirements. If you do not have the required contributions, you should consider the following provisions as you prepare your Reconsideration request. Late Applicant Provision This may be used by people who did not apply for CPP-D as soon as they became disabled. When people wait too long to apply, the four-out-of-six-year rule may mean they are ineligible for benefits. When someone applying for CPP-D has not paid enough into CPP under the current contribution requirements, HRSDC automatically looks at his or her contributions to see when they last paid enough into CPP to qualify for benefits. For example, if someone has enough contributions between 1987 and 1997 (but not after that date) the rules that would apply to them would be the ones that were in place between 1987 and Under the Late Applicant Provision, an applicant must prove they were disabled by the MQP date and prove that the disability has been continuous from that date until the present. Child Rearing Drop-Out Provision Parents/Guardians who have taken time out of work to raise children under the age of seven and have received the Family Allowance or Child Tax Credit can apply for this provision. The years that the parent had little or no earnings can be excluded from the four-out-of-six-year rule calculation. Although you would still need four years of valid contributions, this provision extends the time during which they can be made. Incapacity Provision When you are unable to apply for CPP-D benefits because of the severity of your physical or mental condition, this provision allows you to apply at a later date. You still need to meet the MQP requirements, but you may receive more retroactive benefits.

54 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 54 Other Issues Related to Contributions If you worked in Quebec, your Quebec Pension Plan contributions can be combined with your CPP contributions. If you have worked in another country that has a social security agreement with Canada, contributions to the social security program in that country may be used to help you meet the CPP contribution requirement. If you are separated or divorced (including a common law relationship), you may claim part of your ex-partner s CPP contributions during the time that you were living together. This is called credit splitting and these contributions or credits may help you qualify for CPP-D, even if you have not worked.

55 page 55 Going to the CPP Disability Review Tribunal: A Self-Help Workbook C CPP Legislation Definition of Disability Section 42(2) of the Canada Pension Plan defines disability. It says that: (a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph, I) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and Ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and (b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in prescribed manner to be the time when he became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of making any application in respect of which the determination is made. (R.S.C. 1985, c.30 (2 nd Supp.), s. 2(2)

56 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 56 D Using Case Law Tribunals will only consider certain types of decisions. For example, previous Tribunal decisions are not published and have little, if any, persuasive value for other Tribunals. Although Tribunals are not bound by Pension Appeals Board decisions, they can be persuaded by them. Many of these decisions can be found in the Tribunal Book of Authorities. See Appendix A of this Workbook for information on the Book of Authorities. Tribunals are, however, bound by decisions of the Courts, so using case law in your submission can be a powerful tool. Here are few suggestions for using case law. When making oral submissions at a hearing, remember that the Tribunal Chair is usually a lawyer and OCRT members have legal training do not try to speak in legalistic language, unless you are very comfortable doing so. Assume that the Tribunal has read your written submission (if you have submitted one), remind the Tribunal of the legal principal you are relying on and refer to the cases you have cited. However, focus your closing remarks on the facts of your case, not the case law. Always provide a citation for decisions that you use [e.g., Tasse v. M SD (PAB CP24087, November 27, 2006)]. If you are using cases from the Tribunal Book of Authorities, provide a citation on where the entire decision can be found, rather than providing a copy of the decision. If you use a case that is not in the Tribunal Book, a complete copy of the decision should be included with your submission. Cases of Interest One of the leading CPP disability decisions is Villani v. Canada (A.G.) [2001] FCA 248 a must read for advocates. The Court was critical about the narrow interpretation that had been previously applied to CPP legislation and provided broad guidelines for decision-makers to follow when considering an application for disability benefits. It concluded that the real life experiences of an applicant should carry more weight than hypothetical situations. Two important passages are as follows: 1. Act to be Interpreted in a Broad and Liberal Manner [29] Accordingly, subparagraph 42(2)(a)(i) of the Plan should be given a generous construction. Of course, no interpretive approach can read out express limitations in a statute. The definition of a severe disability in the Plan is clearly a qualified one which must be contained by the actual language used in

57 page 57 Going to the CPP Disability Review Tribunal: A Self-Help Workbook subparagraph 42(2)(a)(i). However, the meaning of the words used in that provision must be interpreted in a large and liberal manner, and any ambiguity flowing from those words should be resolved in favour of a claimant for disability benefits. 2. Legal Test For Disability Under Section 42 of the Plan [37] Except for one case, none of the recent decisions of the Board has analyzed fully the text of subparagraph 42(2)(a) (i) of the Plan. That one occasion was the Board s relatively recent decision in Patricia Valerie Barlow v. Minister of Human Resources Development, CP (November 22, 1999). It is worth repeating the central passage of the Board s decision in that case: Is her disability sufficiently severe that it prevents her from regularly pursuing any substantially gainful occupation? To address this question, we deem it appropriate to analyze the above wording to ascertain the intent of the legislation: Regular is defined in the Greater Oxford Dictionary as usual, standard or customary. Regularly at regular intervals or times. Substantial having substance, actually existing, not illusory, of real importance or value, practical. Gainful lucrative, remunerative paid employment. Occupation temporary or regular employment, security of tenure. Applying these definitions to Mrs. Barlow s physical condition as of December, 1997, it is difficult, if not impossible, to find that she was at age 57 in a position to qualify for any usual or customary employment, which actually exists, is not illusory, and is of real importance. [38] This analysis of subparagraph 42(2)(a)(i) strongly suggests a legislative intention to apply the severity requirement in a real world context. Requiring that an applicant be incapable regularly of pursuing any substantially gainful occupation is quite different from requiring that an applicant be incapable at all times of pursuing any conceivable occupation. Each word

58 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 58 in the subparagraph must be given meaning and when read in that way the subparagraph indicates, in my opinion, that Parliament viewed as severe any disability which renders an applicant incapable of pursuing with consistent frequency any truly remunerative occupation. In my view, it follows from this that the hypothetical occupations which a decision-maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience. [39] I agree with the conclusion in Barlow, supra and the reasons therefore. The analysis undertaken by the Board in that case was brief and sound. It demonstrates that, on the plain meaning of the words in subparagraph 42(2)(a)(i), Parliament must have intended that the legal test for severity be applied with some degree of reference to the real world. It is difficult to understand what purpose the legislation would serve if it provided that disability benefits should be paid only to those applicants who were incapable of pursuing any conceivable form of occupation no matter how irregular, ungainful or insubstantial. Such an approach would defeat the obvious objectives of the Plan and result in an analysis that is not supportable on the plain language of the statute. Looking For Work Another important case, decided after Villani, is Inclima v. A.G. Canada (2003 FCA 117). The Ministry often cites the following passage from this decision to argue that an application should be denied because the applicant did not make sufficient effort to look for alternative work: [3] an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition. (emphasis added) However, we have bolded some of the words above because, taken together, they support the proposition that applicants do not have to demonstrate their efforts to find alternative work if they are not capable of working.

59 page 59 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Working For people who do try to work, the Ministry will often argue that any earnings after a MQP is an indication that an applicant is capable of gainful employment. In Tasse v. MSD (PAB CP24087, November 27, 2006) the Board examined the issue of what constitutes gainful employment and entitlement to CPP disability benefits. The Board applied the concepts developed in Villani and expanded on them in creative ways. When looking at how much earnings should be considered substantially gainful, it used poverty line earnings establish by Statistics Canada as a benchmark. 1 The decision also includes precise ways of interpreting wording in the legislation. The Board wrote at page 3: [7] To her credit in 2005, she resumed employment as a sales clerk, at Zehrs, a grocery store, which involved working hours per week at an hourly rate of $7.75. [8] She was forced to return to work because she and her husband were in dire financial straits, as the husband was unemployed for some time. She was unable to continue at the end of the six months and resigned due to her health problems. She later worked for a three-month period at a nursing home in Based on a 32 ½ hour work-week on alternate weeks at the same rate of pay, i.e. $7.75 per hour... [15]Does the fact that the Appellant returned to work for brief periods in 2005 and 2006 preclude her from obtaining a pension? In my view it does not. The Federal Court of Appeal has held that it is the responsibility of the Appellant to attempt to return to work at a lighter, sedentary type of employment, if they cannot return to their original job. The Appellant is required to show that he or she has made an attempt to do so, and has been refused due to disability, or if successful, are unable to continue because of their incapability to continue. See Inclima v. Canada (Attorney General) 2003 FCA 117. [20]The evidence adduced also raises another issue which needs to be addressed, namely, whether the amount of wages earned by the Appellant during her brief stints of employment following her stoppage of work in 2000, constitutes a substantially gainful occupation. Ms. Tasse worked a 32½ hour week on alternate weeks and received $7.75 per hour or $ per month, for 1 The figures for Statistics Canada s Low Income Cut-off (poverty line) from 1992 to 2010 can be found at

60 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 60 a period of six months. For the three-month period in 2006, while employed at a nursing home her weekly take home pay calculated at 21½ hours per week at $7.75 amounted to $ per week or $ per month. [21] This meager sum is substantially below the poverty line as referred to by Statistics Canada. Had her previous work prior to her disability occurring, been at the same hours and wage, this issue would not arise. [22] Different considerations however are present in this appeal. Ms. Tasse was previously working a regular 40-hour week for a period of approximately 10 years. She subsequently was capable of sporadic employment at different jobs, with reduced hours. [23] Her family physician agrees that she is incapable of working longer hours. A disability is severe only if by reason thereof the person is incapable regularly of pursuing any substantially gainful occupation. (Emphasis added in original) [24] Regular has been defined as with consistent frequency. The Oxford Dictionary defines substantially as having substance, actually existing, not illusory. The Webster Dictionary defines gainful as profitable, lucrative. In my view, the legislature, by prefacing the word gainful with substantially, intended that the employment would be in excess of gainful. [25] The Appellant has established that she has a combination of both physical and mental disabilities, i.e. bipolar disorder and chronic fatigue. [26] In addition, I find that on incontrovertible evidence that she lacks the capacity to pursue with consistent frequency any substantially gainful occupation, due to disabilities. The Appellant therefore succeeds in her appeal.

61 page 61 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Chronic Pain Chronic pain is one of those conditions that frequently results in a hearing because there are often few objective tests to explain its cause. The issue comes down to credibility which can only be determined through oral evidence. The Supreme Court of Canada has found that chronic pain is covered under section 15 of the Canadian Charter of Rights and Freedoms. This decision was referred to by the Board in Mullaney v. MSD (CP24444 February 2007): [25] Before the Supreme Court of Canada in the case Re: Nova Scotia (Workers Compensation Board) v. Martin [2003] SCC 54, the Court was persuaded beyond doubt that chronic pain was a legitimate medical condition and was entitled to constitutional protection as falling within the enunciated ground of physical disability within Subsection 15(1) of the Charter. In his judgement at paragraph 1 Gonthier, J. stated: Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanism that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians [Emphasis added in the original.]

62 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 62 No Clear Diagnosis At times, there may not be a clear diagnosis for a condition, but this does not prevent an applicant from succeeding. The symptoms a person is experiencing are the important factors to be considered. In B.K. v. MHRSD (CP January 4, 2008), the Board wrote: [8] Her concentration and memory are both very poor. This in my view was quite obvious as she gave her evidence. She was unable to continue a thought for more than a few seconds. She was also diagnosed as having a major depressive disorder in 2001 with a GAF score of which is not that of a well functioning person... [10] A great deal of focus has been placed on the fact that there has been no definite diagnosis of MS. Dr. M. Hohol her main neurologist while unable to give a definite diagnosis has not excluded its possibility [17] Clearly she is suffering from a multiplicity of problems both now and as of December Whether she has MS or not is in my view not relevant. A definitive diagnosis is not required. The fact is that these health problems are real and prolonged. Mrs. BK is not employable now nor was she in [18] This woman now and in 2002 could not function either physically or mentally. She is now and was then incapable of regularly pursuing any substantially gainful occupation. [19] The appeal is allowed Real World Considerations Real world considerations as in Villani (age, education, English literacy skills, etc.) are important when determining the appellant s capacity to work or to be retrained. In Daly v. MEI (CP 2919 PAB 1984), the appellant was 45 years old and English was his first language. Although this case was decided before Villani, it illustrates the approach to interpretation that Court later affirmed. The Board wrote on page 3: In our view, Mr. Daly s capacity to retrain himself for sedentary or light duty occupation is the central issue before the Board. There is no question that without retraining for some other occupation compatible with his physical limitation, Mr. Daly is unemployable.

63 page 63 Going to the CPP Disability Review Tribunal: A Self-Help Workbook It is conceded that any type of retraining or other work rehabilitative program in his case, cannot be undertaken without first upgrading his literacy skills. This does not appear to us as a reasonable option at this time, nor in the foreseeable future. The pain he experiences intensifies by simply sitting down for short periods of time. Because of it, he is unable to concentrate. As stated earlier, he spent three years to complete his fifth grade and has not, since leaving school, improved whatever literacy level he had then attained. Any vocation would have to basically involve the use of his hands with freedom to sit, stand, or lie down at will. Dr. Watt agrees that his literacy level restricts him generally to physically demanding work which of course he cannot tolerate... Taking a broad view of the evidence, we are not persuaded that Mr. Daly could reasonably be expected to successfully retrain for work of a non-physical nature. K.A v. MHRSDC (CP25289 PAB December 2007) is another good example of a decision where the real world approach was used. It also highlights the importance of having family members provide evidence. The Board wrote: [15] In considering Mrs. KA s condition it must be remembered that she has only attended school to Grade 8 in her native country of Guyana. Her language skills in English are very limited. Her work experience involved a labour intensive job which she can no longer do because of her disabling condition. In 2002, she completed a program which was intended to qualify her for work more suitable to her condition. This was not successful and she did not obtain re-employment. [16] Taking into account the evidence of the Appellant and that of her daughter who testified as a corroborative witness, it is my opinion that Mrs. KA was in January 2003, incapable regularly of pursuing any substantially gainful occupation and that she has continued to be thus disabled since then. The evidence also supports the conclusion that her disability is prolonged in that it is likely to be long continued and of indefinite duration. [17] The appeal is therefore allowed with the date of onset of the disability deemed to be 15 months prior to the date of application for benefits being March 2005.

64 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 64 In P.R. v. MHRSDC (CP25115 PAB January 2008), the appellant was 60 years old, had a grade 8 education, and English was not her first language. The Board took into account the appellant s life experiences and wrote: [17] It has been submitted on behalf of the Minister that Mrs. P.R. has not made any effort to retrain or to obtain employment that might accommodate her condition. It has been held in prior decisions that, in order to establish a severe disability, applicants must not only show a serious health problem, but where there is evidence of work capacity, must show effort at obtaining and maintaining employment has been unsuccessful by reasons of the health condition. (Inclima v. Canada (Attorney General) [2003] FCA 117.) [18] With respect to work capacity, Mrs. P.R. stated that she tried to return to her job as a packager but was not able to continue because of her medical problems. She also stated that when it was known that she was not going to get better that she thought she was too old to learn new skills. [19] Mrs. P.R. came to Canada with limited education and limited ability to speak or to write in English. Because of work and family responsibilities she has not improved her abilities in these areas. [20] In my view, given her age, medical condition and limited education and language skills, it would not be realistic to expect her to retrain. I found her to be an honest witness and that she did not exaggerate or embellish her difficulties. [21] Taking into account all of the evidence, I find that the Appellant does suffer from a disability that is severe which renders her incapable of regularly pursuing any substantially gainful occupation and that such condition is prolonged and has persisted since her fall at the end of November [22] The appeal is allowed and I would determine the date of onset of the disability to be 15 months prior to the date of her application in October 2004.

65 page 65 Going to the CPP Disability Review Tribunal: A Self-Help Workbook Retroactive Benefits Due to Incapacity When it comes to retroactive payment of benefits, many people feel they should receive benefits going back to the time when they became disabled and could no longer work. However, CPP legislation limits back payments to the date of the application, rather than the date of disability. The fact that people may not have known they could apply for CPP disability benefits when they first became disabled is not a basis to argue they should receive more retroactive benefits. In some exceptional cases, more retroactive payments can be made to applicants if they can prove they were so incapacitated they could not form the intent to apply for disability benefits at an earlier time. Examples include: people who were in a coma for a long time and did not apply until after they regained consciousness; people who experienced brain injuries and lost their cognitive abilities before they applied; or, people who suffered from mental illnesses and lacked the capacity to act before they applied. There is no easy way to simplify how the CPP incapacity provisions have been applied this is a legal question. The law regarding the issue of incapacity was reviewed In Weisberg v. MSD (CP21943 PAB December 2004): The Law [19] Counsel referred us to a number of decisions of this Board. They include Morrison v. The Minister of Human Resources Development, CCH Canadian Employment Benefits and Pension Guide Reports, (1997), CCH No. 8679, pp ; Devcic v. The Minister of Human Resources Development, (CP14065, 2001); Gallant v. The Minister of Human Resources Development, (CP14706, 2001) and Welton v. The Minister of Social Development, (CP 22061, 2004). In Devic and Welton, the Appellant was unsuccessful in establishing retroactivity because of the lack of medical evidence. The most often quoted case is Morrison. There, the Board, in a lengthy and helpful decision, reviewed the provisions of Subsections (8) to (11) and pointed out that: There is little of generality or flexibility in s. 60. Rather, it is precise and narrow. While the Board in that case indicated what the words incapable of forming or expressing an intention to make an application do not mean, it did not indicate what the words do mean. In Gallant, the Board concluded that a person suffering from schizophrenia was incapable of forming or expressing an intent to make an application. As the Board noted, that intent implies knowledge and being able to understand

66 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 66 the nature of such application. The Board also rejected the submission that Section 60 be given a narrow interpretation. [20] Because of the nature of the illness of the Appellant in this case and the medical evidence presented, I am of the view that some attempt must be given to define what Parliament intended in enacting Subsection 60(9). Discussion and Conclusion [21] I start off with the well-settled rule that whenever Parliament enacts a statutory provision, each word used by the draughtsman must have been intended to have some specific meaning. Here Parliament has used the expression incapable of forming or expressing an intention. Applying that rule of statutory interpretation, it would mean that an incapacity to form an intention was intended to encompass an incapacity different from an incapacity to express an intention, otherwise there would have been no purpose in separating the two expressions with the disjunctive or. If I am correct in that assumption, then I would think that an incapacity of forming an intention must refer to a cognitive deficiency that precedes the expression of that intention. In other words, one must be able to form an intention before communicating it. An incapacity of expressing an intention, on the other hand, can be either a cognitive or a physical incapacity or both. Here an applicant might be capable of forming an intention to apply for a pension, but incapable of expressing that intention because of an inability to communicate. An example might be where the applicant has suffered a stroke and is unable to speak or to write or to do both. The inability to speak would be a cognitive incapacity. The inability to write would be a physical incapacity. [22] Although Subsection 60(9) refers to an incapacity of the applicant of forming or an incapacity of expressing an intention to apply for a disability pension, and not an incapacity to recognize that he or she is disabled from working, in my view, the two are necessarily connected. Unless an applicant has some cognitive recognition that he or she is disabled, although not necessarily the extent of that disability, there would be no reason to apply for a pension.

67 page 67 Going to the CPP Disability Review Tribunal: A Self-Help Workbook [23] A person suffering from psychosis, that is, a disturbance of such magnitude that there is a personality disintegration and loss of contact with reality, would be person at one end of the spectrum who is likely incapable of forming an intention to apply for a disability pension. Such persons would not only be incapable of realizing the nature and extent of their illness, they would be incapable of realizing that they were mentally ill and probably incapable regularly of pursuing any substantially gainful occupation. On the other hand, persons who know that they are suffering from a physical illness but unable to appreciate the nature and extent of that illness would not necessarily be considered incapable of forming or expressing an intention to apply for a disability pension. Most people who feel physically ill are incapable of recognizing the extent of their disability until they have been seen by a doctor and told the nature of their illness and the prognosis for recovery. Until they are made aware of the nature and extent of their disability, it is unlikely that they would apply for a pension. Surely, it was not the intention of Parliament that such persons would fall within the words of incapable of expressing an intention to make an application in Subsection 60(9) of the Plan. [24] In this case, it was submitted that the Appellant s neurocognitive deficits would have prevented him from internalizing and thereby recognizing the nature and extent of his impairment. To put it another way, his neurocognitive deficits would prevent him from forming an intention to apply for benefits. To understand the need to apply for a disability pension, it was argued, the Appellant had to understand that he was disabled. The Appellant could not form an intention to apply for a pension because he did not realize that he was disabled. [25] On all of the evidence, I am satisfied that although the Appellant was aware that something was wrong with him, he was incapable of recognizing that it was a disabling condition. If I understand Dr. Fulton correctly, it was his view that persons with right hemisphere compromise suffer lack of awareness or insight into their own deficits. Someone like the Appellant would be incapable of appreciating his own difficulties, even when provided with feedback by his doctors. Although generally

68 Going to the CPP Disability Review Tribunal: A Self-Help Workbook page 68 persons who are advised by their doctors of the nature and extent of their illness are capable of appreciating their deficits, Dr. Fulton felt that the Appellant was unable to do so. In my view, the Appellant s incapacity to appreciate his own deficits, even when told what they were, rendered him incapable of forming the intent to apply for a disability pension. [26] I would allow the appeal and find that the Appellant s incapacity arose in 1993 and continued until he applied for his disability pension on April 9, Note: None of the Pension Appeal Board decisions referred to above were appealed by the Ministry of Human Resources and Skills Development Canada.

69 page 69 Going to the CPP Disability Review Tribunal: A Self-Help Workbook E Bill C-38 Here are some of the other key changes that will come into effect through Bill C-38. There will no longer be three-member hearings. Hearings will be conducted by a single member from the General Division of the Social Security Tribunal. An appeal can be dismissed without a hearing, if it is determined it has no reasonable chance of success. If an oral hearing is held, it can be in person or by electronic means. Appellants will no longer be automatically reimbursed for expenses incurred to attend a hearing. Expenses can be paid in any particular case for special reasons. Under the Review Tribunal process, parties to an appeal usually have up to 8 months to prepare for a hearing. Under the new system, appellants will have to demonstrate their appeal has a reasonable chance of success when they file their appeal. The Pension Appeals Board will be replaced by the Appeals Division of the Social Security Tribunal. As with the General Division, decisions will be made by a single member and there is no requirement that an oral hearing be held. Like the PAB, appellants must seek leave to appeal it is not an automatic right. Bill 58 limits the grounds of appeal to the Appeals Division. An appellant must show that the General Division: failed to observe a principle of natural justice or made a jurisdictional error, made an error of law, or made an erroneous finding of fact that was made in a perverse or capricious manner or without regard for the material before it. It is too soon to tell how appeals will be dealt with under the new Tribunal. Like any decision-making body, the process depends on the individuals who are chosen to do the job and the resources they are given to carry out their mandate.

70 Going to the CPP Disability Review Tribunal A Self-Help WorkBook created by funded by The Law Foundation of Ontario Solid Black