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Tips to remember in appealing your CPP disability claim:

  1. Read the file carefully, especially the letter “Explanation of the Decision under Appeal”.  This letter will help you understand why Human Resources and Skills Development Canada refused your benefits.
  2. Write down any questions you want to ask the Review Tribunal staff or your CPP  lawyer.
  3. To ensure that your Minimum Qualifying Period is correct, check CPP Contributions in the Record of Earnings in your hearing file. Make sure they agree with your work history.
  4. If you have receipts, the Office of the Commissioner of Review Tribunal (OCRT) will reimburse you the cost of getting medical records that are already on file with your doctors and hospitals.
  5. If reasonable the OCRT will pay travel and other costs related to getting to your hearing. These could include travel expenses or, if you have to stay overnight, meals and accommodation, which must be approved in advance.
  6. If required the OCRT will provide and pay for a professional interpreter at your hearing.
  7. OCRT will make every effort to hear your witnesses.  OCRT places a lot of weight on what you and your witnesses have to say at the hearing. This is assessed in relation to documentary evidence such as medical reports.
  8. Expect questions about your medical treatment and be ready to provide reasons for declining any treatment.
  9. Be ready to provide a detailed explanation about any return to work you attempted after you became disabled.
  10. Prepare in advance so that you can make the best possible presentation at your hearing.
By KDPetersen (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons

A “Disability” is required to be eligible for CPP Disability Benefits.  What is the legal definition of “Disability”?

About Canada Pension Plan Disability Benefits

Before an applicant can claim CPP disability pension entitlement, the claimant must pursuant to Section 42(2)(a) of the Canada Pension Act satisfy the Review Tribunal that the disabled person was suffering from “a severe mental or physical disability”, meaning that he or she was incapable regularly of pursuing any substantially gainful occupation for a prolonged time.

Section 42(2)(a) says in part:

When person deemed disabled

(2) For the purposes of this Act,

(a) 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

(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person 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 fifteen months before the time of the making of any application in respect of which the determination is made.

Each one of these words have their own meaning which must be weighed by the Tribunal in the circumstances of the claimant’s case.

Villani Case

The Villani Case was decided by the Federal Court of Appeal on August 2001. Prior to the Villani decision there were many decisions of the Pension Appeal Board that held that a person had to be totally disabled before a disability pension could be granted.

There were also decisions that advocated the use of the ordinary meaning of each and every word in Section 42(2)(a) of the Act in order to introduce an air of reality and a concept of employability into the Board’s deliberations.

The Barlow case was a decision which held that a claimant did not have to prove total disability. The claimant did have to prove that he or she was incapable regularly of pursuing any substantial gainful occupation.

The Villani case, sided with the Barlow interpretation of the case and rejected the “total disability” approach. The court stated as follows:

Accordingly, Section 42(2)(a)(i) of the Plan should be given a generous construction …….. However, the meaning of the words used in that provision must be interpreted in a large and liberal manner and any ambiguity flowing from those words should be resolved in favor of a claimant for disability benefits.

This analysis of Section 42(2)(a)(i) strongly suggests a legislative intention to apply the severity requirement in a “real world” context requiring that a claimant be incapable regularly of pursuing any substantially gainful occupation is quite different from requiring that a claimant be incapable at all times of pursuing any conceivable occupation.

Mr. Justice Isaac said in the Villani case:

…it follows from this, that the hypothetical occupations which a decision maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education, education level, language proficiency and past work and life experience.

The result of this decision does away with the old reasoning of the Board decisions that personal traits are not relevant in a “real world” assessment of the work capacity of a claimant. Judge Isaac continues as follows:

…It is evident, to my mind, that the Board in this case has effectively read out of the severity definition the word “regularly,” “substantially,” and “gainful.” In this way, the Board has reduced the legal text to the following: is the applicant incapable of pursuing any occupation? This approximates the “total” disability test eschewed by the drafters of the Plan. Indeed, the Board’s repeated emphasis on the word “any” appears to have been a contributing factor in its misinterpretation of the statutory test of severity.

Justice Isaac goes on to state that:

Decision makers ignore the language of the statue by concluding, for example, that since an applicant is capable of doing certain household chores or is strictly capable of sitting for short period of time, he or she is therefore capable in theory of performing or engaging in some kind of unspecified sedentary occupation which qualifies “as any” occupation within the meaning of Section 42(2)(a)(i) of the Plan.

Justice Isaac goes on to state however that:

Claimants still must be able to demonstrate that they suffer from a “serious and prolonged disability, that renders them “incapable regularly of pursuing any substantially gainful occupation.” Medical evidence will still be needed as well as evidence of employment efforts and possibilities.

Have you applied to receive CPP Disability Benefits and been denied? Our Lawyers Can Help!

Has your CPP Claim for Disability Benefits been turned-down? Are you overwhelmed with all the government paperwork and red tape?  Do not despair. Our CPP Disability Benefits Benefits Lawyer can help you with:

  • reconsideration of your CPP Disability Benefits application by Service Canada,
  • Appeal to the Office of the Commissioner of Review Tribunals of the denial of your CPP Disability Benefits application, and
  • Appeal to the Pension Appeals Board.

Simply fill out the confidential form below  to talk to a Toronto CPP Disability Benefit Lawyer immediately.  The Toronto CPP Disability Benefits Lawyer will then call you, without delay, to discuss your case.

By Phil Roeder from Des Moines, IA, USA (Black & White Justice) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons

Reopening a CPP hearing because of New Facts

The production of new facts is made at the same level of the adjudicative process as the denial of benefits. Section 84(2) of the Pension Act, permits new facts to be filed after a prior adverse decision has been rendered against the applicant’s case.

All three levels of the CPP Adjudicative process are subject to an application to reopen a hearing based on new facts.  The three levels are:

The application for a rehearing constitutes a new proceeding called a ”review” The leading case in this area has defined a two part test to determine the admissibility of new facts: 1. The evidence sought to be introduced must not have been discoverable before the original hearing by the exercise of reasonable diligence; 2. Such evidence if admitted would be practicably conclusive (or alternatively) at least would have an important influence on the results of the case, although it need not be decisive.

Onerous Test for a New Hearing

The tests for admitting new facts are very onerous. The trier of fact will not wish to accept rehashed evidence being presented as new facts. New information presented must change or add new information upon which the earlier decision was made. If this is not done the Judge during the application cannot make a new determination and the review application must be denied.

Procedure To Bring An Application To Reopen On Fresh Evidence

The way to bring an application to reopen is by way of application, filed at the level of the CPP adjucative process that first denied the applicants application, with supporting affidavit and material attached. These documents should be served in advance upon the Minister.

Have you applied to receive CPP Disability Benefits and been denied? Our Lawyers Can Help!

Has your CPP Claim for Disability Benefits been turned-down? Are you overwhelmed with all the government paperwork and red tape?  Do not despair. Our CPP Disability Benefits Benefits Lawyer can help you with:

  • A reconsideration of your CPP Disability Benefits application by Service Canada,
  • Appeal to the Office of the Commissioner of Review Tribunals of the denial of your CPP Disability Benefits application, and
  • Appeal to the Pension Appeals Board.

Simply fill out the confidential form below  to talk to a Toronto CPP Disability Benefit Lawyer immediately.  The Toronto CPP Disability Benefits Lawyer will then call you, without delay, to discuss your case.

By Nicolás Espinosa (De mi computador) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC BY-SA 4.0-3.0-2.5-2.0-1.0 (http://creativecommons.org/licenses/by-sa/4.0-3.0-2.5-2.0-1.0)], via Wikimedia Commons

Applying For a Reconsideration of a Denied CPP Disability Benefits Claim

You or a qualified CPP lawyer may ask the Government of Canada for a Reconsideration of your rejected CPP Disability Benefits Application.  This must take place in writing to the Human Resources and Social Development Canada (HRSDC) within 90 days of receiving your denial letter from HRSDC.

Applying for a Reconsideration of your denied CPP application is usually worthwhile if you can provide new information that support your CPP Disability Benefits Claim.  This new information can include letters from your doctors and other health professionals that address the reasons your CPP Disability Benefits application was turned down.

The Reconsideration Process

The process for the Reconsideration of a denied CPP application can take several months.   The most common reason that you can be denied benefits is if Human Resources and Skills Development Canada (HRSDC) does not accept that your disability is sufficiently severe and prolonged. HRSDC has decided then that although you cannot do your former job, you should still be capable of doing some other form of employment.  See CPP Eligibility Requirements for more information on meeting the requirements for a successful CPP Disability Benefits Claim.

Medical Evidence

Your doctor’s opinion is of the utmost importance. The doctor has to explain your disability and state why it prevents you from working. The emphasis should be on impairment and how your disability affects your ability to do some sort of work.

Your application can be denied if HRSDC decided that your medical disability is not prolonged. This would be possible should the evidence suggest that a full recovery is expected by a certain date. In the Reconsideration request it is important to get good medical evidence and to present it to HRSDC in a meaningful way.   The doctor should describe all your physical and/or mental disabilities as well as a prognosis of your impairments.  He should also set out precisely the limitations, that you have resulting from your disability, especially those that restrict your ability to work. If there was a medical specialist used it is important to have a report from him or her.   If there are other health care workers in your treatment such as nurses, physiotherapists, psychologists etc. their evidence should also be included.  They should be requested to express an opinion on your limitations in a work setting.

Next Steps

If you receive a favourable response from the Reconsideration process you should receive a lump sum amount for retroactive CPP disability benefits as well as regular CPP disability monthly benefits.

If your Reconsideration request is denied your next step is for you to file an appeal with the office of the Commission of Review Tribunals.

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CPP Disability Benefits Eligibility Requirements

To qualify for Canada Pension Plan Disability Benefits you must meet three basic requirements.

You must:

1) Be under the age of 65

2) Have made the required amount of contribution

3) Have both a severe and prolonged disability as defined in the CPP legislation.

Severe Disability

CPP defines severe as being a condition that makes “a person incapable of regularly pursuing any substantially gainful occupation”.

Prolonged Disability

CPP defines prolonged: “as such severe disability likely to be long, continuous and of indefinite duration or is likely to result in death.

Options When a CPP Disability Benefits Application Has Been Rejected

If your CPP Disability Benefits claim has been turned down then you may appeal the decision.  The first step of the appeal process after your CPP Disability Benefits application has been refused is the Reconsideration Process. This must take place in writing to the Human Resources and Social Development Canada (HRSDC) within 90 days of receiving your denial letter from HRSDC.  A lawyer can help you with this.   If you are not satisfied with the results of the Reconsideration Process then the next step is an appeal to the Office of the Commissioner of Review Tribunals. If you are not satisfied with the results of the Appeal to the Office of the Commissioner of Review Tribunals then you may appeal the decision to the Pension Appeals Board.

https://www.flickr.com/photos/bethcortez-neavel/20699620022/in/photolist-xx9XSo-7bo3eY-BNNc3-6qCxCW-ahi7Ck-HwyJuy-nUrSF9-bkUna-GDRLvC-BTiW4C-qMQXDS-p9xYAF-pr411g-pr42KD-pr3Zt4-fP2SNT-obWFCD-9sMQEz-p9xZ4K-9sMMC6-32QGcN-nUskXn-6qCxTy-6qCxFj-6qynWa-6qynUe-sf7K66-4HCEEs-obDjyK-8Xyi5Z-6JrLVJ-8FAT5j-c6iqks-4RuL8D-4ViY93-98enft-okgkJD-8hS3TE-nUt6Ln-o9UhLJ-fKNjUX-nUrSFj-9uNj1-6JnEjc-qt883V-5TcyfW-9f7RjZ-4Rzomo-c968Lb-oGh4zv

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.

Disability

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
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
Incapable: this means you cannot work due to your condition and not that you have voluntarily retired.
Regularly
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
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.

Appealing a Denied CPP Disability Benefits Claim to the Pension Appeal Board

If you have lost your CPP appeal in front of the Office of the Commissioner of Review Tribunal (OCRT) for your denied CPP Disability Benefits application then you may consider appealing to the next level.  That level is the CPP Pension Appeal Board.

No Automatic Right of Appeal

The main difference between appealing to the Review Tribunal and appealing to The CPP Pension Appeal Board is that in order to appeal to the CPP Pension Appeal Board you must obtain permission from the court to do so.  There is no automatic right to an appeal in front of the CPP Pension Appeal Board.  The permission to appeal is known as “leave to appeal”.

Section 83 of the Canada Pension Act contains most of the organizational tools needed to provide an appeal.

Section 83 (i) states that a party who is not in agreement with a decision of The Review Tribunal may apply in writing within 90 days after the date on which the party received the Review Tribunal Decision for Leave to Appeal that decision.

If Leave to Appeal is refused, written reasons must be provided by the CPP Pension Appeal Board Member who refused the leave.  Once leave to appeal has been granted, the CPP Pension Appeal Board can then hear the case upon its merits.  The Pension Appeal Board is then authorized by law to determine any question of law or fact as it relates to among other things, whether the benefit is payable.

Pension Appeal Board Hearing is More Formal

The Pension Appeal Board will then conduct a new hearing as in a Review Tribunal hearing.  One is then able to call witnesses in support of his/her case and a Minister’s Representatives may also call witnesses for the Minister’s case.

The Pension Appeal Board Hearing is characterized as being more formal than the Review Tribunal in that it is a Court of Law. There is a court clerk present to mark and record documentary exhibits, as well as all witnesses must be sworn to tell the truth.  The hearing is also more adversarial.  The Minister’s Representative at a Pension Appeal Board Hearing is a lawyer as opposed to the Minister’s Representative at a Review Tribunal Hearing who is not.

The proceedings before the Pension Appeal Board are regulated by the Pension Appeal Board Rules of Procedure, which differ from the Review Tribunal Rules in that they provide for pre-hearing motions, discovery and more particularized means of receiving non-oral evidence.

Pursuant to Section 15(1) of the Pension Appeal Rules of Procedure any party to the proceedings may apply to the Board for an order to examine the other party’s documents relating to any matter in question and that are in possession of that party or to examine for the purpose of discovery any party to the appeal.

Furthermore, pursuant to Section 16(1) of the same rules the CPP Pension Appeal Board may summon before it by subpoena any person and require that person to give evidence on or produce such documents as it deems requisite.

Witnesses can be examined orally upon oath at the hearing of a CPP Disability Benefits appeal.

The forms used for an application for leave to appeal a notice to appeal are usually appended to the Pension Appeal Rules.

Minimal legal costs may be awarded if the claimant is granted benefits.  Minimal refers to costs for the day(s) of the hearing and usually range in the area of $200 – $300 per day. As well the CPP Pension Appeal Board may award a successful CPP disability claimant for reasonable travel and living expenses.

The CPP Pension Appeals Board is required by law to prepare written reasons for its decisions.  These are sent by the Registrar of the Pension Appeals Board to the parties to the appeal, by registered mail or priority courier.

The decision of the CPP Pension Appeal Board is final and binding.  Any party to the Appeal may within 30 days seek judicial leave under Section 28 of the Federal Courts Act to appeal to the Federal Court of Appeal.

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.