The last two files I have received from the Social Security Tribunal I have been advised that the Tribunal Member intends to make a decision on the appeal on the basis of the documents and submissions filed for the following reason:
"The Tribunal Member decided that no further hearing was required, as each party had been given a meaningful opportunity to present its case; and no further information was required to make a decision."
What about the evidence of the Appellant? What about the evidence of the family? What about the opportunity to present all sides of the appeal and not what is just on paper? What about the Appellant's right to a hearing? This man has been waiting to have his appeal HEARD since September 2011.
So the Member decided that each party had been given a meaningful opportunity to present its case? Well all we have been able to do is submit paper - medical reports, submissions, etc. And that no further information wes required to make a decision? How so?? Why?? It does not say - that based on the documents filed that the Member feels confident that the appeal should be allowed and that the client has made his case - that would be completely different - then one would know that you had a last kick at the can to convince the Member differently - but there is no indication of that - so you just trust that the Tribunal Member is confident in the decision.
There is prior case law on file (Martin v MHRD CP14001) which states that "There have been cases in which evidence tendered by the Applicant and his or her supporting witnesses was not only highly credible, but also equally highly persausive, which called upon by the Board to exercise its judicial capacity and function, thereby refusing to abdicate its decision-making role to the medical profession."
And Chase v MHRD CP 6540 "While objective medical evidence is helpful and greatly assists the Board in its determination of disability, the CPP does not make a finding of disability conditional on "objective evidence." The appellant usually gives oral testimony at the hearing. The subjective experiences of the applicant in regard to the pathology with resulting consequences on his or her ability to engage in regularly substantially gainful occupation, are important considerations."
And Di Caro v MHRD (CP 4068) " It is important for the applicant to attend and testify at the hearing so that a PROPER assessment of his or her claim can be made. This is particularly true of chronic pain claims, even where none of the treating physicians expressed doubt as to the genuiness of the complaints. Failure to testify in person, UNLESS adequately explained, will weigh heavily in the balance against the genuineness of the claim."
And Morley v MEI (CP 3296) "It is not the function of the Board to "rubber stamp" medical opinions, and they must be weighed against oral testimony."
And Petti v MHRD CP 4855 "The oral testimony of the applicant can be, and very often is MATERIAL to the resolution of the matter. If deemed credible, it is entitled to DUE WEIGHT and SERIOUS CONSIDERATION."
I could go on and on quoting previous decisions of the Pension Appeals Board which form jurisprudence over years and years of hearings.
I then sent and email to the Manager whose name is signed to the letter. This is a new development and I am not sure what recourse the client has to dispute this Tribunal Member's decision. She forwarded my email to the general information email. This is a specialized question and I am forwarded to the a general information line - I am going to email the Commissioner - maybe she will give me the answer I need as I am not getting a response to many of the emails I send to the information line. This client has until July 30 to submit documents so that means I am going to waste days trying to get an answer to questions from the SST.
By the way the email that I received in response from the Manager says "FYA" which I believe stands for F**K YOU ALLISON a freudian slip perhaps for FYI?
Is this a way that the SST to expedite the appeals and to reduce the back logs?
For those of you who receive a letter like this from the Social Security Tribunal - please make sure that you have got someone to help you put together your file - make sure that you have written submissions about why you meet the CPP disability criteria - if you are unable to do this alone -please make sure you get help. Remember these appeals are really in my opinion - your one kick at the can - in terms of being successful - so take it seriously.
My concern is that people who have no idea of the lay of the land, who have mental illness, who are unable to manage the complexity of the appeal, who struggle with literacy - will be unable to manage these kind of situations and again the playing field is tilted on the backs of the most vulnerable.
Look I really hope that this is a good thing - I hope that this means that the Tribunal Member has weighed all the information on file and is convinced they can make a decision - and my hope is that it is positive - but it is really unproven this system - and the figures that have been released concerning the denial rates are not good - so I am hesitant to trust. As well, there are limited appeal rights so you are relying on an unknown in the hopes that your appeal will be successful. For a man who has waited since September 2011 to get an appeal I am not sure he should take the risk.
By the way this is the response I have received on the email I sent:
"You are correct. You would need to provide a written request with reasons (to change the hearing format). It will be provided to the Tribunal Member for review."
Never in all of the previous appeal systems has a Tribunal Member or Judge for that matter the right to decide that a Appellant would not be granted a hearing.