Okay so you have been reading about my concerns and I have just thought of another thing.

Many individuals who go to the appeals - have witnesses - support people - and sometimes doctors or professional people attend the hearing to give evidence on their behalf. Sometimes, when there is say a stroke or a brain injury and there is cognitive issues - a professional or a spouse will give evidence to the Panel to highlight the changes that they have seen in the appellant's functioning. One of the ways to quantify cognitive decline is with a neuropsychological assessment but these are extremely expensive - so my question is how are people now going to be able to give evidence - how are the single members going to be able to hear all the aspects of the case?

Is everything going to have to be in writing?

Also how is the average person going to be able to afford the cost of the medical reports to support their appeal? I am able to finance medical reports for my clients - but it is very expensive - and is the average person going to be able to secure the evidence that they need in order to win their appeal - I also have the expertise to get the information that is required from a doctor to substantiate an appeal - writing that their patient is "severe and prolonged" on a prescription pad is not going to cut it.

In what format is a spouse or partner going to be able to give evidence? The Feds mantra about no "objective medical evidence" they often use in order to deny a claim - but how is an single member going to assess a person's credibility and experience when they are talking about subjective evidence like pain or mood? How is that going to be assessed on paper?

How is a person with mental illness or brain injured going to be able to coordinate all the information they require in order to have a comprehenive appeal?

So many questions - and so far no one will give me any answers - at least not from Human Resources Development Canada.

If you have been following my recent blog entries, you will be aware, that included in the Haper Government's massive Bill C38 the Budget Implementation Act 2012, it outlines what is going to happen in terms of this new appeals system that is going to be put in to place for people who are denied Canada Pension Plan disability benefits as well as Employment Insurance benefits. These changes to the CPP disability appeals system have been overshadowed by so many other changes that the government is implementing, that there has been little in fact almost zero discussion amongst Canadians.

I would like to perhaps enlighten the masses what it is like for someone who finds themselves in the position of having to apply for disability under the Canada Pension Plan system. Firstly, unless a disability is catastrophic and immediate it can take a long time before a person ulitimately decides that they can no longer work. This decision is difficult to make - so much of our self esteem and dignity is tied in to what we do - where we work - how we make a living - and it often means giving up financial independence and putting a financial burden on yourself and your family. But you decide that you can no longer work, so you get the forms from Canada Pension Plan and you start to complete them. These forms can be quite onerous for an individual for numerous reasons, and then you have to get your medical doctor on board to complete the medical report required by CPP.

Some doctors are really great, the go above and beyond to help out their patient and support them fully in the application. Some however are very lukewarm, often because of the paper work and the extra time this takes, the small amount the Feds pay for their time, as well as the pervasive feeling among doctors that most of the claims are going to be denied anyway. Still an applicant perserveres and completes the application. Sometimes, they contact me and ask me questions about how best to succeed and try their very best to send in a complete and comprehensive application.

Then they wait............. and they wait............. and they wait ............... and they phone .......... and likely after six months they might get a phone call from the adjudicator responsible for making the decision. Some of the adjudicators are very nice people and very nicely explain what their decision is - some of them - well don't get me started on that - and yes finally you get a decision - DENIED - you are denied - because while we understand you have physical limitations you are able to do "some type" of work so you do not meet the legislative criteria.

After a person reads this denial, I typically find a number of things will happen. One person may become enraged and immediately appeal, some might become discouraged and believe that the decision rendered is correct so they quit. Other appellant's may be heartbroken that their family has struggled to keep things afloat only to be denied and hope begins to fade - some people even force themselves back to work to prove that the government is wrong.

Of the people who appeal, well they go back to their doctors for more information. They try and call Service Canada to get the answers to no avail. They are lost and they do not know what to do - but they do know the decision is incorrect. Sometimes they find my office.

I do not have much faith that the appeals are fairly adjudicated - most times in the files - I just see a reiteration of the same information that the Feds relied on to deny the claim the first time around - sometimes I see pages of information that are ignored - which again only supports my belief - that there is an amount of claims exposure the Feds expect to have - not proven of course - I can never find a way to do that - but I believe it is true - but anyway you still have to go through the reconsideration.

And so they wait ......... and they wait........... and they wait - and again likely after another six months - you are denied again. So approximately 12 months after you applied you are still without any financial support and you are still unable to work.

As I have mentioned in previous blog entries, I have felt confident that an appeal that was arm's length and independent was a good thing. The Panel members and judges were well trained, and there were three people involved that would make a decision on the appeal. They were able to meet the client in person and talk about the disability - not just rely upon written information.

Now the Harper government is changing all of that. They are also pushing for appeals that are going to be held using electronic means - phone or video conferencing - or even just paper appeals - and as I have said before - how is one - appointment by the government tribunal member - going to have all the necessary experience - medical, legal, etc, to adjudicate an appeal?

It is very unfortunate that Canadians are being denied this opportunity to an arm's length independent appeal - unfortunate and shameful. All the good people at the Review Tribunal and Pension Appeals Board have worked diligently to ensure appellants got fair and non adverserial hearings and now it is all being dismantled.

Readers may assume that I am self-interested because I am a private advocate who makes her living off successful appeals - but it is more than that - I am not concerned about putting together an application or appeal that would be successful and identifying the merits of an appeal - my real fear is the impartiality and that this new appeal will simply be another way to rubber-stamp another denial - closing options for legitimate good Canadian people who have paid in to CPP and who are disabled.

These changes are coming in to effect in April 2013. So please if you are in the appeals process it is critically important that you find someone who is experienced to help you either with the application or appeals process.

I will keep you posted.

When the Feds announced the budget in March included in the contents was this paragraph:

"The Minister will introduce legislative amendments to eliminate administrative duplication in appeals and tribunal services by replacing the current administrative tribunal system for major federal social security programs with a single-window decision body. The new Social Security Tribunal will continue to provide a fair, credible and accessible appeals process for Canadians."

This now means that the Office of the Commissioner of Review Tribunals as well as the Pension Appeals Board will cease to exist in its current format.

The Budget Implementation Act which came out April 26th, 2012 provided some information about what this new Social Security Tribunal would now look like.

The Social Security Tribunal will consist of the General Division and an Appeal Division.

The Tribunal will consist of no more than 74 full time members appointed by the Governer in Council.

The General Division can summararily dismiss an appeal if it is satisfied that it has no reasonable chance of success.

If you are denied at the General Division you can appeal to the Appeal Division and any appeal to this division may only be brought if leave to appeal is granted.

The only grounds for appeal are that

a) the General Dvision failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or

c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The head office of the Tribunal is in the National Capital Region or at any other place within Canada that may be designated by the Governor in Council.  I have also heard through that there is a push for electronic appeals - are the hearings going to be held in the location that the appellant resides in or are they going to be done just on paper alone?

Under the current system if you are denied at the Review Tribunal and you are granted Leave to Appeal to the Pension Appeals Board you get what is called a hearing "de nova" which means that the Pension Appeals Board will look at the appeal with 'fresh eyes" - you start from scratch and essentially the prior decision carries no weight on the decision making process.  However, under the new system the appeal division will only intervene if an appellant is able to establish the decision contained one of the above noted errors.  This concerns me - the average person will have no idea how to make these arguments.  How is a person with no education, or those who have language barriers, or those who are functionally illiterate, or who are sick ever going to be able to make a successful submission?

Every application to the Tribunal is to be heard before a SINGLE MEMBER.  Who are these members going to be? Are they going to understand the tenants of the CPP legislation? Are they going to have a medical background so they can understand the medical reports? The Feds at the Pension Appeals Board had a doctor who would explain the medical condition to the Board because they did not have medical expertise - the Review Tribunal have a medical member sitting on the Panel - are these new single members going to have the expertise of a lawyer or a medical person? Also, when the appeal is heard before three panel members I understand that they have the opportunity to deliberate among themselves and there is the opportunity to discuss all the points that have been made at the hearing - when there is an appeal before a single member - well I feel that that opportunity is lost - if the single member is having a bad day - who is going to hold that single member accountable? Where will the balance in the decision making be - it is no different from presenting the information at the initial application, and at the reconsideration - those decisions are made by a single member of the Federal Government - is that the same thing that is going to happen under the new system - only the single member is in a different location??

There is also a lot of discussion in this Bill about the Electronic Administration of the Canada Pension Plan.

So what does this mean? I am not a friend of the Federal Government - you have read my blog and likely noticed the disdain I have for the Feds. They state in their budget document that this new tribunal is going to "provide a fair, credible, and accessible appeals process for Canadians." - not likely. My first response to this was why would the Feds do this - the Tribunal and the Pension Appeals Board run well - the system has been in place for years. I believe and have stated many times that having a hearing before three independent arm's length community panel members is an excellent way for an individual to have his case and application for Canada Pension Plan disability fully explored.

An individual from Service Canada told me that the adjudication time frame for an initial application is running as high as 32 weeks - that is eight months. Then 60% approximately are denied - and then you are waiting at least another 20 - 25 weeks for a reconsideration. I am still waiting for the results of a Freedom of Information request I submitted to formalize these statistics but things are pretty grim out there - at least that is what I hear from the daily calls of desperation to my office. So in the past I was confident that an appellant would have a good hearing before the Review Tribunal especially if they were prepared well - and now the Feds have completely changed the system and from what I read - the Canada Pension Plan Act itself.

Now everyone is up in arms about changes to the environment but what about all of these subtle changes that affect Canadians - believe me no one seems to care - unless it happens to them - and you have read my discussion about how this process and procedure negatively and significantly impacts Canadians at some of their lowest times - how exactly is that fair and credible, oh and lets not forget accessible?

So I am working here to evolve the website as these changes come in to place - I will tell you one thing I believe for sure - get help with the application - get help with your appeals - make sure you find someone - use the resources on the website - anything you can do to make sure you get a successful result before these changes came in to place.

I intuitively believe that the Feds are doing this for one reason alone - and that is to save MONEY - and of course in my opinion their CLAIMS EXPOSURE which will ultimately mean they will save MONEY.

Please check back as I make changes to this website to help you with your applications and appeals.

Credible. Fair. Accessible. My a$$

The Review Tribunal uses the following information in order to make its decision: the information that was previously submitted to HRSDC - Canada Pension Plan during the application and reconsideration process. The Review Tribunal office will either send you or your representative this documentation which makes up the Hearing File.

As soon as the Review Tribunal office receives notice that you are requesting an appeal, they start to accumulate a hearing file. They contact the Feds and ask them to send all the documentation that they have collected during the application and reconsideration process. This would include the application, questionnaires, and any medical information that you have submitted. It would also include CPP adjudication worksheets and well as departmental correspondence and a record of your earnings and contributions to CPP.

As well as this evidence the Review Tribunal will also receive additional information you would like to submit - new documentation from your doctors or letters of support - although you can give these letters directly to the Panel it is best if you send this information in advance so that everyone has an opportunity to read and process the information - you may also like to write a submission arguing why you meet the legislative criteria - but make sure that you understand the legislative tenants - read the blog for suggestions on how to do this.

The Review Tribunal is a hearing de nova - which is latin- for a heaing anew - which means that they are going to consider all the information with "fresh eyes".

The oral information you give at a hearing is also an important source of information for the Review Tribunal and you will be encouraged to tell you own story and to give the Review Tribunal information about your condition - the Review Tribunal will also have questions for you arising out of your testimony or out of the Hearing File. You can ask witnesses to attend the hearing to give information on your appeal - you and your witnesses will be asked to affirm that the evidence you will give will be the truth the whole truth and nothing but the truth.

It is my recommendation that you have a representative - because I am a case manager and know the advantages to having someone help you who knows the lay of the land - the OCRT advises that appellants seem to have a more successful hearing if they have someone to represent them.

It is not effective to have someone who you have asked to be a witness to represent you as well. The representative and the witness should play their own unique role in the hearing. Sometimes witnesses are asked to be excluded from the hearing room while you are giving evidence so that their evidence is given appropriate weight and can be taken as credible.

As well you can have a support person at the appeal and they are able to stay in the hearing room throughout the hearing.

The Office of the Commissioner of Review Tribunals (OCRT) are responsible for scheduling Review Tribunals. The hearings are usually held in the appellant's community and they usually take place in a hotel meeting room.

If you are rurally located, you may have to travel to a larger centre near you, but your travel costs will be reimbursed. If you live in a rural area it may take you longer to get a hearing as the need for a Review Tribunal to attend a location is based on the number of appeals in that location. Therefore it can take some time to get a hearing in a rural location - you can however waive travel costs against the Review Tribunal to get a location change to an urban center which may expediate the length of time you will have to wait.

If you require language interpretors or have special needs - these will also be accommodated.

The Review Tribunal usually sit three times in one day - at 9.00am, 11.00am and 2.00pm and the hearings usually last around 90 minutes. Sometimes if you have a complicated case the Review Tribunal may schedule a longer time period.

The Review Tribunal Panel itself has three members - the Chairperson, a medical member, and a member from the community. Most people assume that the panel members are from their community but panel members can be convened from all over Canada to sit at any location. The Chairperson is always a lawyer and is responsible for overseeing the hearing and usually for writing the decision.

The responsibility of the Review Tribunal is to decide whether or not your appeal for Canada Pension Plan disability benefits should be granted - the tribunal can allow your appeal, decide on the date of onset of your disability which will effect the amount of retroactive benefits you receive, deny your appeal, or decide they have no legal authority to hear your appeal. They can also grant an adjournment of the hearing. They cannot change the legislation no matter how much compassion they may feel or have for you.

In January I wrote a blog about a hearing that I had attended and I was complaining about the vibe in the hearing room. I had strongly felt that the client was going to be denied - based strictly on the panel that had convened to hear that appeal.

An this week I got the decision and sure enough it was dismissed.

You cannot win every appeal - I understand that - and if the decisions are evenly written and reasons are well thought out - I have no problem taking a denial - you have a different interpretation on the information that is fine - no complaints and that is why there are various levels of appeals.

However, this decision I am going to describe to you. The client has appeal rights thank goodness.

This client - let's call him James.

James is middle aged. He has several diagnoses - including systemic arthritis as well bowel disease due to adhesions from previous surgeries - and chronic pain and fatigue due to these conditions. He has been under specialist treatment since 2002 - so now ten years on.

He has an MQP of December 2008- remember that is the magic date - the date he needs to be found disabled.

He could not work in a competitive work force due to his disability - so he decided to do a home based business - which continued to grow - but soon he could not keep up with the demands because of his disability.

He bought equipment to help him manage the business but eventually he had to turn business away - he continues to earn around $200 per month as that is his capacity.

He has pain in his knees, hips, back, he has adhesions on his abdominal wall which leads to significant bowel issues. He also has chronic fatigue due to his systemic arthritis.

He was prescribed medical marijuana to manage his pain as well as other medications to manage the degeneration of his joints.

The analysis of the Panel and the reason for the denial.......

The Panel agrees that James has ongoing "problems" related to his medical condition. No significant increase in his symptoms from Jan 2002 to October 2007 - note this is one year before the MQP - and the doctor does not give an opinion as to whether the condition is disabling - note these where consultation reports from one doctor to another.

There is little medical evidence regarding the bowel issue- really??? Well James had been referred to several specialists as well as surgeons to see if they can do anything to help - all doctors say no. That if there is surgery it could make the situation of the adhesions worse - and James did not mention this pain enough to his doctor - yet he has been prescribed medical marijuana by the doctor who notes "for ONCE I am comfortable with this as a means of CHRONIC PAIN management" and the doctor also notes in evidence - that mobility is seriously impacted 8/10 - that the paitent is in pain sitting, standing, and lying down.

The medical conditions do not individually or collectively appear to disable him and that he is intelligent and articulate - and that he has not made attempts at employment - okay????? As explained he has been trying to operate within his functional capacity for many years.

So yeah there are pages of medical reports from specialists - his doctor characterizes his medical condition as severe.

There is no discussion about productivity - there is no discussion about how pain interferes with his day to day functiioning - there is no discussion about how this client cannot regularly attend at a place of employment - there is no discussion about his excellent work history. There is no discussion about his efforts at mitigation.

And one last thing that James mentioned to me when I called to see if I could put his story on the blog was - that the hearing was in the mid morning - the hearing took about an hour - and after the hearing James and I sat in the lobby and I was telling him about my negative feelings - less than ten minutes later the Panel left the hearing room and went to the restaurant to eat lunch - so James said to me - how much time was spent deliberating and discussing the file - he was not at confident that his case was given its due - and you know what I tend to agree.

Anyway just wanted to update you.

This week marks my 14th year of running the clinic.

I was so vain as to think that I really understood the procedures and the CPP program well - and you know I do - but there appears situtations to me that I really do not have any idea how to answer people's questions.

I ask them have they phoned the 1-800 number - you know "Service Canada" - and they laugh at me. They tell me that they receive different information depending on the time they call - and then it is an insufferable amount of holding time before you are connected - well I suppose we cannot complain too much - I mean some of the 1-800 numbers I call are off shore and at least "Service Canada" remains in Canada - but any way I digress!

Okay so I have some pretty good contacts within the department - well I thought I did - because I have sent several emails to CPP managers, as well as called CPP regional officers - only to be told to phone the 1-800 number! Yeah okay....

Anyway I am back to trying to wade through enormous amounts of procedures to find policy and answers to questions that half the time I think do not exist - or maybe they exist in one region but not another.

So my recourse is the Freedom Of Information Act, then I have things in black and white and concrete answers to my questions that do not forget relate to Canadians in the public - not cause I am out of a whim trying to find information for my own jollies.

Maybe the Feds are pissed at me cause I am "outing" them - and hello to all you bureaucrats who are reading the blog.

So yes there are clients that appear that have unique situations that I am very interested in finding out the answers - and I often get ideas for the blog from CPP recipients - so thanks and keep them coming. I will try and find out the answers to your questions the answers that you are advised to get from "Service Canada".

I received a phone call this week from a clergyman - let's call him Cameron. Cameron had just turned 60. He could no longer work as a clergyman a position he had held for 30 years or more due to multiple disabilities both physical and mental. Cameron had applied for CPP disability at 59. He was denied because the Feds said whilst they recognise that he has limitations he was still suitable for some type of work. No surprise this is the standard denial vernacular.

So why I am calling this the dangling carrot......

The Feds go on to say and I am paraphrasing, well you cannot have your disability benefit but, because you will be turning 60 in whatever length of time that is - or if you are already 60 - we are delighted to advise you that you can collect you CPP early retirement benefits. Just sign here, withdraw the disability application, and there you have it we will put you on these benefits and just forget the CPP disability. We will even recognise the date of your appliation to CPP early retirement benefits as if that is the date you applied for early retirement benefits (note I am being a tad sarcastic).

This is the dangling carrot......

The CPP early retirement benefit payment is significantly lower that what you would collect on a CPP disability benefit - so the Feds have saved themselves a lot of money. It is my opinion that the Feds are also playing on people's emotions and desperation of the fear and financial implications of not having a monthly income. In Cameron's case I have seen the medical reports and the doctors have all supported that he is not capable of doing any work quite clearly.

I have seen this situation occur over and over again. Most people understand what the dangling carrot is - and the smart people of Canada are on to it.

I would also like to make note of one more thing. I have seen a lot of write ups lately from financial planners talking about taking early retirement from CPP. It is their perogative to give financial information but I get frustrated that not one of the financial planners mention that if you take early retirment one of the implications is the window of eligibility to access CPP disability benefits. I have talked at great length about this in previous blog entries.

I would like to thank everyone who contacts me about the blog. I am happy that the information it contains is helpful. Have a good week. Allison

More complaints I am afraid......

Firstly I am finding that the wait times for processing CPP benefits is increasing - people are waiting for at least five months to hear a decision on their applications or reconsiderations.  I do not have to tell you about the state of most families' finances and how many rely on a double income in order to make the mortgage and whatever other obligations they have. I cannot for the life of me understand how putting individuals through the financial stress of repeated denial of disability benefits can help a person's medical condition.  Add stress, depression, frustration, marital conflict, guilt, and a whole host of other issues to the mix and you are certainly not helping a client improve.  It is so frustrating for me to see and hear first hand the toll the length of processing times and denial rates are having on good decent Canadian people who face life changing disabilities. It sickens me. And the number of calls and emails I get each week, each person expressing their despair and frustration with the system is a challenge.  My advice is to carry on - keep positive - and keep up the fight against the unfair denials - because at the end of the day - I believe that most people have legitimate claims - why else would they waste their time and cause anguish to themselves and their families for the fun of dealing with a bureacratic system. It is not logical.

I have also had my fill of bad hearings. I am not sure if Panel members feel rushed or overwhelmed with the amount of information they have to review, or whether they are burnt out with the number of appeals they are sitting on because of increased hearing numbers or because the amount of appeals are increasing - but lately I have not felt that all of the Panel members are prepared - and I also wonder if they are reading the files.  Again a caveat - many many members have done their homework and are ready - but some alas I feel are not.  I have had any excellent relationship with the Review Tribunal office but I feel this whole issue of documentation collation and page numbering (see prior rant) is not doing the panel members, the representatives, and most importantly the appellant any service at all. And this could be the problem and vibe that I am sensing in recent weeks. You would think that simple page numbering would not make a big difference but it does.

Maybe I am just frustrated with the whole system period.

I did have some good news this week. A client lets call him Roger won his appeal. He has had quite a time of it - firstly a bone head Panel member - made in my opinion a really stupid decision on the last hearing - it was postponed. He waited another 10 months in order to get the second hearing - with no resolution to the issues raised in the first hearing - but any way - he was waiting for a treatment - a treatment that has a waiting list of over two years - so what he is supposed to wait that length of time to see if this possible treatment may help his medical condition - I think not.  I must add that in the documents it stated that this proposed treatment was something that the doctors "hoped" might help - it was not like surgery or something that had a good chance of success - so in the meantime - Roger lost his house that he had paid for  over 25 years of hard work - his wife left him - and he is now housebound and mired in chronic pain and anxiety - an illustration of what happens to real good person - a person who was described by his previous employer as a "working-machine" - because of this system he found himself in - through no fault of their own. Anyway I just spoke with Roger and I am so hopeful that the feds do not appeal this decision - he has been through enough. Thank goodness the new panel saw Roger's reality and did not postpone the hearing again.  Even though I disagreed strongly with the first Review Tribunal panel if they decide they want to adjourn well good luck for an appellant. Again I find complaints are challenging for me - I know the Review Tribunal are down members and I worry about coming across a member I complained about in another matter.

Anyway that is enough for a Friday afternoon. Take care and hang in there. Allison