Section 42 the Canada Pension Plan allows a contributor to receive disability benefits should that person be unable to meaningfully work at anything.
In most cases those benefits are less than one thousand dollars monthly.
This talk is a simplified version of a complex area of the law.
Do not take it as being authoritative on every aspect as there are exceptions to some of the matters stated hereafter.
What follows are the most common aspects of CPP Disability claims.
It highlights the application and Appeal process.
It outlines matters to consider.
It gives tips on how to succeed in these applications
The criteria for qualifying is complex:
If one of these elements is missing, then no disability benefits are payable.
Your client completes the application forms.
Your client’s doctor completes the Minister’s form of medical report.
Your client’s claim is accepted.
Your client’s claim is rejected.
The rejection letter may advise that your client has not made the minimum number of years of contributions to the CPP. If that is true then that is the end of the matter.
The rejection letter will advise that while your client has made enough contributions to be eligible until December 31 two years after your client last worked (the Minimum Qualifying Period called after this the “MQP”) your client is deemed not eligible for disability benefits.
The second matter stated is that while your client may not be able to work at the client’s usual job your client is not so disabled as to be unable to work at anything substantially gainful.
This statement is a pure guess. The application form asks about the client’s last job but not previous work history and only minimally about education.
No one at CPP has interviewed your client about your client’s past work experience, the education and training your client has and why, in your client’s view, your client is incapable of work.
The refusal should be evidence based but complete evidence is not within the decision maker’s knowledge.
Before I go in to the methods to combat this statement I review the reconsideration and the appeal process.
After the initial refusal your client has a right to ask the CPP for reconsideration – basically a second look at the decision.
Often, a reconsideration merely affirms the previous decision.
This is a matter of right.
The Conservative government streamlined the system.
The old system saw an automatic appeal to a Review Tribunal regardless of the merits of the case (a person without the MQP had a right of appeal even though there was no hope of success).
Under the previous system the Review Tribunal was not a tribunal of record. Loss at that level meant that your client could appeal to the Pension Appeals Board if that body granted leave (on the basis that your client had an arguable case).
An appeal to the Pension Appeals Board was a Trial de Novo meaning that any deficiencies before the Review Tribunal could be cured through the introduction of new evidence.
That changed about three years ago. Instead of a Review Tribunal an appeal is now made to the Social Security General Division (consisting of one person but still called a tribunal).
If your client fails at the General Division there is an appeal to the Social Security Appeal Division (provided that body grants leave - the test being whether the appellant has an arguable case).
This is not a trial de novo. With limited exceptions the evidence is restricted to that before the General Division. The grounds of appeal are restricted to:
If your client is unsuccessful before the Social Security Appeal Division, there is a further appeal available to the Federal Court of Appeal on a Judicial Review. Judicial Review is based on a standard of reasonableness with deference being given to the Social Security Tribunal Appeal Division.
Your client will be fortunate if your client consults you before making application for disability benefits. At that point you can assess the client’s claim as well as the potential strength of the medical evidence.
This is a rare event (consultation before making application for disability benefits).
The steps to be taken are those you should take at any time before the Social Security General Division schedules a hearing.
First have your client sign a comprehensive letter outlining your client’s:
Why do you want this letter sent to the CPP officials? The reason is that the CPP officials prepare a comprehensive statement as to why your client was denied disability benefits. That document is in the file. You want your client’s side of the story placed before the CPP officials but really before the Social Security General Division as the tribunal will read the file.
In my experience, your client’s statement will not change the mind of the CPP officials but on appeal will be given much consideration by the tribunal.
Another issue is the Minister’s form of medical report in which the treating doctor is asked for a prognosis. What it does not ask (which you would think that it would) is how the prognosis relates to your client’s ability to work. If your client is lucky enough to consult you before applying, you may be able to have the prognosis consider your client’s ability to work.
Another issue is as to when your client submits the application for disability benefits. If your client has been disabled for years, the calculation of entitlement starts 15 months before the application is filed. With the statutory 4 month waiting period payment is backdated to 11 months before the application is filed. Your client should file the application immediately even before the doctor has completed the Minister’s form of medical report. The doctor’s report plays no part in when entitlement starts.
Section 42 of the Canada Pension Plan states as follows:
The Minister of Employment and Immigration v. Campoverde (October 21, 1994) Canadian Employment Benefits and Pension Guide Reports, No. 8556, in discussing the word ‘severe’ the Pension Appeals Board said (page 6041) stated:
"It should be noted that the definition of "severe" is not expressed in terms of medical diagnosis or disease descriptions, but solely in terms of an individual's capacity for activity in the work forum."
The component “prolonged” has been the subject of judicial discussion at the Pension Appeals Board.
The Pension Appeals Board decision in MNH&W v Lauzon  #9202 CCH, pages 6203 - 06 stated this requirement as follows:
“[If] medical prognosis at the time of treatment cannot project, not necessarily a cure, but a recovery to the degree that the individual in question would, within a foreseeable and reasonable time, having regard for the nature of the injuries and the resultant disability, recover sufficiently to enable [him or] her... to engage in some form of substantially gainful employment [then the disability is prolonged]. If future return to the work force, in whatever capacity within a reasonable time, is medically uncertain, then the disability may be held to be prolonged.”
As pointed out by Douglas Lloy in the text book, CPP Disability Pension Guide, LexisNexis Canada Inc., at page 93 “...it is quite possible for a disability to be prolonged (such as Asthma) but not necessarily severe. It is also possible for a disability to be severe but not prolonged, as an acute heart attack that although at the time was severe, is not prolonged. It follows that a condition, even if it is severe, must also be prolonged in order to meet the requirements of S.42 (2) (a)”.
The author then goes on to say that the descriptive words, which follow the definition, leave no doubt that it must be a disability that is expected to exist for a long time or may even lead to the death of the applicant.
Villani v. Canada (Attorney General) (August 3, 2001) 2001 FCA 248 (CanLII)  F.C.J. No. 1217 (Federal Court of Appeal). is the leading case in this area. Villani decided:
The usual time for a consultation is after your client has been refused on a reconsideration.
The first thing needed is to do items a) to d) previously referred to.
The usual cause of refusal is a lack of medical evidence concerning your client’s ability to work.
To combat this obtain your client’s medical records. After reviewing those records select those most favourable for sending to the General Division and then ask for a report from your client’s doctor.
This is not a medical-legal report governed by the BC Rules of Court. Your client is free to reveal only the most favourable evidence.
Typically what you will ask the doctor is as follows:
Your client will not succeed in the appeal if the doctor writes “While your client may not be able to work at present I expect your client will be able to work next year” or “Your client is to be sent to specialist Dr. Bloggs so I am unable to say when he will be able to work until I hear from Dr. Bloggs”.
There must be no doubt that your client’s recovery from a time before the MQP expires to now and in the future remains uncertain.
Those are the main features.
There are many more issues to do with what is substantially gainful and details in other areas.
F. Kenneth Walton, Q.C.
February 22, 2017