Response to the Notice of Readiness by the Department (HRSDC or CPP Disability).
I have explained at length the Notice of Readiness that has to be signed by both parties to the Social Security Appeal - General Division.
I have signed and sent in several Notice of Readiness on clients and would now like to provide information about the next steps in the appeal process.
After the Social Security Tribunal received the Notice of Readiness, this was sent to Human Resources Development Canada (HRSDC) the Ministery responsible for Canada Pension Plan disability and who are a party to the appeal.
I have then received a letter back from the Social Security Tribunal with the following documentation.
1. Another Notice of Readiness that has to be signed by the Appellant (the person who is appealing the decision).
2. A signed Notice of Readiness signed by the department HRSDC.
3. A Recommended Format of the Appeal to the Social Security Tribunal - General Division. There are two options that the Minister would like to recommend. They state that The Minister's position is that the appeal can proceed in writing based on the current record OR The Minister requests that an oral hearing be held for the following reasons...... I have only seen the Minister requesting the Appeal can proceed in writing based on the current record.
4. Sometimes there is an updated Record of Earnings to provide evidence of the Minimum Qualifying Period.
5. Then there is the HRSDC Explanation of the Decision under Appeal - which is the CPP argument about why the Appellant does not meet the criteria for CPP Disability.
I have seen several types of Minister's submissions that have been submitted - some are very detailed and look a little like legal documents - some are a little more informal but both address the following points:
In this section HRSDC gives the overview of the case - they discuss that the evidence does not support the determination of disability and they note the Minimum Qualifying Period date. They also describe the medical conditions and discuss what type of work the appellant did and when they stopped working, They summarize the main points of their argument and note why the Appellant does not meet the CPP disablity pension.
They also request that the appeal be dismissed.
B: THE FACTS
In this section HRSDC talk again about the MQP and about the facts of the appeal - they note when the application was made and when and why the application was denied. Basically in this section the sequence of the application and appeal is explained.
In this section the department states that the Issue before the Tribunal is whether the appellant has established that their condition is severe and prolonged within the meaning of the CPP on or prior to the MQP and continuously thereafter.
D: LAW AND SUBMISSIONS
In this section the Minister outlines the deifintion of disability under the CPP - they describe what severe and prolonged are.
They talk abou the onus being the Appellants and state that the department is not required to prove that a claimant is capable of working.
They state that the main question is whether a claimant can prove that they suffered from a severe and prolonged disability by the expiry of their MQP and continuously thereafter.
It is the capacity to work and not the diagnosis or the disease description that determines the severity of the disability under the CPP.
The incapacity must prevent a claimant from pursuing any substantially gainful occupation and an appellant must show that efforts at maintaining and obtaining employment have been unsuccessful by reason of a medical condition.
Medical evidence is required as is evidence of employment efforts and possibilities.
Socioeconomic factors are irrelevant to the determination of whether a claimant is disabled.
The capacity must be assessed in a real world context taking in to account age, experience, education, language proficiency and capacity for retraining.
Suffering of the claimant is not an element upon which the test of disability rests.
Financial or other hardship is not relevant to the determination of eligibility.
Incapacity not employment must be proven to be regular. The employment, even if irregular, can be substantially gainful employment.
There is no firm demarcation between a return to work and a failed work attempt. It is dependent upon the facts of a particular case.
The evidence does not support a finding of disability - lack of objective medical reports indicating incapacity.
There is evidence of residual capacity to work,
E; FORMAT OF THE APPEAL
Here is is recommended that subject to a request for an oral hearing from the Appellant that the Minister's position is that the appeal can proceed in writing based on the current record.
F: DECISION SOUGHT
The Minister here respectfully requests that this appeal be dismissed.
What should you do when you have received these documents.
This is your opportunity to submit your side of the case to the Social Security Tribunal member.
Firstly before you sign the new Notice of Readiness - you need to make sure you address the submission.
I would prepare a document similar to the format of the Minister, You may agree with the Facts the Minister has outlined as that usually comes from the appeal documents and when you made your CPP application should not reallly be in dispute.
However the Minister's interpretation of how CPP disability is applied may be open to interpretation and there is a large body of decisions and tenants that can be submitted to support your appeal - if you read through this blog you will find many of these are discussed and explained.
There are also a large body of appeal decisions come down from the Pension Apppels Board which are still applicable to the interpretation of the CPP disability that you can find online - there is also the HRSDC adjudication framework and several online resources - ME/FM Action Network have an excellent resource available as do some of the legal aid clinics.
In many submissions I have seen the Feds point out sentences from the medical reports that are unfortunately not the totality of the information provided in the medical reports - if there is information missing and likely there will be - make sure you use this to rebutt the Fed's position.
When you are confident that you have submitted all the information you would like to argue your position then you can sign the Notice of Readiness.
I would also make sure that you indicate that you if the appeal cannot be settled IN YOUR FAVOUR on the record that you wish to have an in-person hearing - as I believe you have the right to be able to tell your side of the appeal - as well as describe the subjective evidence - as objective evidence is not the totality of the appeal.
What happens next?
When you have prepared your submission and sent off any additional information along with another signed Notice of Readiness - this then goes to the Social Security Tribunal. At this time, they send the documents to the Department and then the Department again has an opportunity to rebutt and then they may send an addendum to their submission with another signed Notice of Readiness which will then be sent to you. This ping pong can go back and forth until both parties sign the Notice of Readiness with no additional information or when the 365 days are up - then the hearing will be scheduled.
The take away.
This is a very complex process - get help with it.