Appealing a Denied CPP Disability Benefits Claim to the Office of the Commissioner of Review Tribunal (OCRT)
Upon receiving your HRSDC letter of denial for Reconsideration you have 90 days of receiving that letter to appeal to the Office of the Commissioner of Review Tribunal (OCRT). The OCRT will arrange a time and date and notify you of a hearing date. They will forward your appeal record to you and assist you with any questions you may have.
The Tribunal Panel consists of three members who will hear your case and an HRSDC representative also appears before the panel.
The Maximum Qualifying Period (MQP)
The Maximum Qualifying Period (MQP) is the minimum period of time that you must have worked and contributed to CPP. It is calculated by counting the number of most recent calendar years you have made contributions. Under the rules if you have worked only four years then you must have made the requirement contribution for each of these years. If you have worked more than four years, valid contributions must have been made in four out of the last six years. You must prove that you were disabled by the end of the MQP in order to qualify for disability benefits. The end date of a person’s MQP is usually December 31st of their last qualifying year. If you have made contributions for CPP for 25 years or more than you may qualify if you worked and contributed to CPP in 3 of the last 6 years before you became disabled.
When preparing your appeal of your denied CPP claim for disability benefits you should know when your MQP ends. For some people this date has already passed and for others it may be coming up at some point in the near future. You must be deemed to be disabled by the end of your MQP and continuously since then, to qualify for disability in a fixed period.
If you have made the required contributions into CPP the next step is to show that you meet the definition of disability contained in the CPP Legislation. Section 42(2) of the Canada Pension Plan Act defines disability. It says that:
a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and iii) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in prescribed manner to be the time when he became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than 15 months before the time of making any application in respect of which the determination is made.[emphasis added]
There are some examples of how the tribunal and courts have interpreted these words.
- Severe: this requires a realistic assessment of the “whole person taking into account, age, education level, language proficiency and past work and life experience. However, it is not the diagnosis of a condition or disease that is considered, but its effect on the person.
- Incapable: this means you cannot work due to your condition and not that you have voluntarily retired.
- Regularly: this means that you cannot commit yourself to a work schedule with reliability because of the disability.
- Substantially Gainful Occupation
- Substantially Gainful Occupation: this does not mean that you cannot work at your old job, but that you cannot work at any job-full or part-time-which you are or could become reasonably qualified. It also does not mean that you cannot work at all. At the Review Tribunal stage, there is no strict rule for how many hours of work or what rate of pay would be considered “substantially gainful”. This is decided on a case-by-case basis taking into account the specific person.
- Prolonged: this means that you do not expect to be able to return to work “substantially gainful” work, no matter what period of time you have been off work. If there is a reasonable expectation of recovery, you will not qualify. Short term benefits are not available.
The Review Tribunal & Hearing
The role of the Office of the Commissioner of Review Tribunal is to hold a hearing to decide whether or not your appeal for CPP can be granted. You have the right to:
(i) Have a hearing and present your case to the Office of the Commissioner of Review Tribunal;
(ii) Have the decision made by unbiased OCRT Members;
(iii) Have the decision made only by the OCRT Members that heard the appeal.
The Review Tribunal has the power to:
(i) Allow your CPP disability benefits appeal;
(ii) Decide it has no jurisdiction to rule on your issue; or
(iii) Deny your CPP disability benefits appeal.
In making its decision the Office of the Commissioner of Review Tribunal can consider any information that was previously submitted to HRSDC during the application and Reconsideration process. This information is in the Hearing File. The Panel can also consider any new information you or HRSDC may want to give them.
You may wish to have a lawyer represent you in the appeal of your rejected CPP disability claim. One is usually more successful at a hearing if one has a lawyer. This may be since a lawyer is able to assess the strength and weaknesses of your case in presenting you claim to the panel.
A Tribunal decision is final. The only way the decision can be changed is by appealing to the Pensions Appeal Board or by re-opening the Review Tribunal by showing that there are new facts that were not previously available.
The Review Tribunal will provide you the Hearing File, prior to your hearing. This file contains all the documents, letters, reports and contributions to CPP. This file will be relied upon by the Review Tribunal and will be reviewed by the Panel Members before the hearing is conducted.
It is very important that you review all the information contained in the Hearing File. Especially make sure that the file is complete. Any new information that you obtain that supports your case you should make available to the Review Panel. You want your doctor to be able to state that you are unfit for any form of work for your appeal to succeed.
It is important to know that the Review Panel places a lot of importance to what your doctor may say about your medical condition and the limitations. It is important that your doctor’s report explains your condition and why it prevents you from working.
Upon hearing all of the evidence, and submissions, the Panel will review the Hearing File as well as the new material that was given to them prior to or at the hearing and all the oral testimony from the people who attend the hearing. The Panel will then decide whether there is enough evidence for them to rule that you meet the legislative requirements for CPPD and will provide written reasons for their decisions at a later date.