This week, two cases dealt with what is a Substantially Gainful Occupation?
For the first case, let’s call her June. June had been granted CPP disability due to significant Bipolar Disorder. She had a long history of mental health issues, including hospitalizations. When she is not displaying symptoms and is stable, June is able to work. But then there is the other side of the coin. June can fluctuate rapidly cycling up and down. June was a challenging client. I did not know how to manage her as she can be tangential – she tends to go off on tangents when you ask her a question.
June went off her medications and decided that she wanted to be “normal” (her words). And what is more “normal” than being a part of society and getting a job. So, June applied for a janitorial job as a relief worker.However, soon after she began to develop sciatica and eleven months later, she had to have spinal surgery. That did not stop her though – in her un-medicated state, June was in a manic period and she still tried to keep working despite all of her symptoms. CPPD found out that June was working and based only on the fact that she had earnings, June’s CP benefits were ceased. So, June was left with no income. At this time her mental health had decompensated to the point where she was again hospitalized, and once she went back on her medications, she regained some clarity on her situation.
Let’s remember that June had mental health and physical health issues. She contacted my office. I did not know if I was going to get clarity June or whether I was going to get not-so-clear June. But we persevered with the appeal. She had been denied Tribunal. There was no one I think who would have taken on her case frankly – as she had earnings while on disability- and on first bush – well you would think that CPPD were right to cease her benefits. But sometimes you have to dig a little deeper, connect with the person, and take the time to find out what really went on. June has a great family, a sister and daughter (both of them named Sally!) who were very helpful in helping me understand June.
So that is a little bit of context of the appeal. At the time, when you went to a Pension Appeals Board hearing it was a “cease benefit” case. The Government cannot vary the decision that they made that she was disabled according to the legislation – the only issue that would be before the Tribunal was whether or not the government had established that June had “regained her capacity to work” and it was their responsibility to establish that. When I first spoke with the Minister’s representative, she said that we would have to present our case first – well I knew this was wrong – in fact I knew that June did not have to speak at all – it was up to the Government to prove that she could work – and all of the information on file taken in context indicated that she could not. Really the only reason the Government had was that June had earnings. I did not ask June to speak because she would have not been able to manage this. So her daughter Sally spoke on her behalf in a very compelling way. Clearly explaining her Mother’s mental health condition and how it has impacted her life.
So why am I writing this long-winded essay?
The issue was – what is a Substantially Gainful Occupation? You know the definition – you must be regularly incapable of any substantially gainful occupation. I did some digging around and according to the Adjudication Framework for Canada Pension Plan a Substantially Gainful Occupation is defined as 12 times the maximum retirement CPP benefit amount.So I presented this document to the Tribunal and stated that with June’s case the Government are not even following their own adjudication guidelines.
Now I must back up a bit – June was working alone, and she would work at all hours of the night. She would work so no one would see her and how she was not managing – all in effort for her to be her definition of “normal”. Since she was unsupervised she was able to pull it off – no supervisor would know what was going on “in reality” and there must be an “air of reality” when addressing a CPP case.
The funniest thing to me was that the Minister’s representative said to the Tribunal that the CPP Adjudication Framework – was just a “guideline” and that this was not binding on the Tribunal. The Tribunal member said, “are you asking us to not follow your own guidelines?” In the end, the decision came quickly to reinstate June’s benefits.
The next case concerning what is a substantially gainful occupation was about a woman – let’s call her Lila. Lila has been diagnosed with relapsing-remitting Multiple Sclerosis. Lila had been working with her MS since 2005 at a local school doing lunch-room supervision and being a teacher’s assistant for a Pre-K class. Lila’s earnings are just over the allowable earnings provision and way under a substantially gainful occupation earnings – but he was denied because she was still “working”. Okay, so I was frustrated by this stage. Seriously? The Government gives you all of these pretty words like “substantially gainful” and “allowable earnings”, but they do not follow their own guidelines. They argue that you are not disabled because Inclima says you must “test your capacity to work” – so you are denied. Then they say that “you are trying to work within your capacity” but you are not disabled. It just really frustrates me because Lila was job sharing with another woman who was disabled and on CPP disability. She also can only work seven hours a week before her MS symptoms like fatigue, brain fog, and muscle weakness would kick in. Good for Lila – she loves to work because it helps her mental health, and she wants to contribute to her family.
The whole point of this blog entry is to try to clarify what is a "substantially gainful occupation". There is a dollar amount and there are a lot of other things that are taken into consideration, like productivity and performance, and whether or not you are competitively employed, and if it is a philanthropic employer. A whole host of things.
On the Canada Pension Plan website, they state that you can earn up to a certain amount per year without losing your disability benefits. For 2021, this amount is $6,100 (before taxes). You must contact Canada Pension Plan as soon as you make more than $6,100 (before taxes).
For more details read more here
But what I would like to say – is that obviously the Adjudication Guidelines mean nothing and are only “guidelines”. It would be abetter system if the Government actually followed their own rules.