This week I visited Ottawa. I called in to see the staff at the Review Tribunal office. I have been working with this office for some 12 years now, so it was nice to put faces to names.

While visiting in Ottawa I had the pleasure of experiencing my first earthquake!

After leaving Ottawa, I worked in Alberta. I have a very interesting case let's call him Wayne.

Now Wayne and I have known each other for many years. He is a client who has significant Osteoarthritis in numerous joints and he is in his late fifties. The reason why Wayne has been a client for so long, is that every year he tries to continue to work. He has a wife who is mentally ill and he is her primary caregiver.  This man tries each year to work to make money to support his family.

The thing is, he needs joint replacements which he refuses to have because he has no way to financially support his wife and to keep their home. So he gets up each day and picks garbage and bottles in order to survive. He also tries each year to be self-employed, gets a contract and then cannot complete the work because of his functional limitations. He cannot sleep due to chronic pain, and he is medicated all the time.

And to top it all off Wayne will not go before a hearing to "beg" for money - he says he is to proud to do this. Despite my advice that he has paid in to Canada Pension Plan for over 30 years and that this is not charity - but an entitlement - if you qualify.

The reason why I bring this case up, is because I have a client who has excellent medical evidence, who is working against medical advice, who relies on pain medication, who cannot have a joint replacement because he cannot afford to stop working, and the Feds say he is not disabled because he is working - and how can I argue this because technically he is.

However, there is provision in the legislation about what is a Substantially Gainful Occupation as well as an Allowable Earnings Provision. I could have argued whether he is working for a Philanthropic Employer - namely himself - and each case is a unique case to be assessed on its merits.

I went to Alberta quite prepared to run this by the Review Tribunal but - Wayne - who showed up to meet with me the morning of the hearing - could not handle appearing before the tribunal to "beg" for a benefit - he just would not do it.  So he left.  I really tried to help him understand the process but he just could not cope with attending the hearing.

I appeared before the Tribunal on Wayne's behalf and interestingly his Miminum Qualifying Period had changed allowing the Panel to consider his situation to date. Had I known this prior to the hearing I would have prepared myself differently. Rightly so, we did not proceed without Wayne and now I am going to submit all of the information back to the Feds and make a submission on Wayne's behalf to see what they will do - my guess - hold the line and say he is working.

Why am I blogging about this? It upsets and frustrates me that a man who has significant disabilities, supportive doctors, who has given it his all now since 2007, and who is in chronic pain, has to continue to struggle and pick garbage and bottles and not take surgery because he simply cannot afford to sustain himself and his mentally ill wife without losing his home.  He has applied for provincial benefits and they have also turned him down because they too say he is working therefore he is not disabled. What is wrong with this picture?

Well until next week, hang in there. If you need some help call or email me at info@dcac.ca

When an appellant has a disability condition such as chronic pain, chronic fatigue, or depression, it is difficult to describe the subjective symptoms that one may experience. 

I recently had a case with a client who has Chronic Fatigue Syndrome.  This client, let's call him John, was in his late forties and had been unable to work due to his condition for approximately four years.  He had gone through a process of elimination with his physicians and specialists to see if there was an alternative illness causing his chronic fatigue which all came up negative. 

He was also referred to a Psychiatrist who specialized in Chronic Fatigue Syndrome and Fibromyalgia.  The reason why I am blogging about his particular case is due to this medical report

Saying one is simply fatigued does not really describe the condition - and this doctor quoted five variants of fatigue as identified in a recent scholarly article by Jason et al.  I did a google search and found a link to this article http://www.ncbi.nlm.nih.gov/pubmed/20185398?dopt=Abstract

When presenting a chronic fatigue case to a Review Tribunal it might be helpful to discuss each of these five variants of fatigue.  These are some of the examples we used in John's case -

Post-exertional Fatigue  - the more that John did, the longer it takes for him to recover, he has to pace himself with his activities, if he does an activity he has to rest after this activity. I often hear clients say if they do something they will "pay" for it later. I think it is probably better to give examples - like how does one "pay" - increased fatigue, increased pain, would be a more appropriate way to describe this.

Brain Fog Fatigue - John described this type of fatigue as being in the "twilight zone" - he was unable to take in information or react to outside stimulus - he talked about how hard it was to him to follow a story line in a book, and how it was difficult to arrange his thoughts.  When he was experiencing this type of fatigue he was unable to focus on anything.

Flu-like Fatigue - John described this type of fatigue as that he "just feels ill"

Energy Fatigue - this was described by John as him feeling okay and then something happens to "pull the plug" and he feels his energy draining away.  If this happens, his need to rest is immediate.

Wired Fatigue - John described this aspect of fatigue as not really making sense to him in that when he seems to get really really tired, he gets "wired" by which he meant he was hyper - and that this was the hardest aspect of his fatigue to manage.

Some of the other ways that John described his condition was that he was irritable, and that he could not tolerate noise especially in the morning, that he ability to deal with money and numbers is impaired, that more than two people at a time is too stressful for John to manage.

John was successful with his appeal and the Panel considered the following factors - he was credible, he had a strong work history and attachment to the work force, that John's evidence at Review Tribunal gave them a clear idea as to the severity of his condition, that the Panel was impressed with John's diligence to  find the appropriate diagnosis and treatment (efforts at mitigation) and that he had pursued treatment options that were recommmended by all the physicians to whom he was referred to, that it was not reasonable for him to try alternative employment (Inclima - if evidence of work capacity) and that his symptoms are unpredictable, which would make regular attendance at a place of employment either difficult or impossible - there was no evidence of functional overlay (ie: malingering, secondary gain). 

I hope this helps clients who have any subjective symptoms to understand the importance of trying to quantify these symptoms to help the Panel gain a clear idea of the severity of your condition.

Recent changes to the Review Tribunal Rules of Procedures include:

1.  A requirement that witnesses testify under oath - as a matter of practice, the Chairperson will ask the witnesses to simply state that he or she promises to tell the truth, rather than do so while holding a holy book or sacred object.  In law, this approach is called making a solemn affirmation.

2.  Review Tribunal panels will have the discretion to decide whether to exclude witnesses while others are testifying or to allow them to be present.  It is worth noting that formal rules of evidence requiring the exclusion of witnesses are intended to enhance the reliability and credibility of the evidence on which a decision-maker relies.

This information has been provided to me from the Office of the Commissioner of Review Tribunals by way of the Representative's Bulletin.