Simplified Paper on Claiming Disability Benefits
Under the Canada Pension Plan
February, 2017

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.

Objects of this talk

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:

• Your client must be less than 65 years old.
• Your client cannot be in receipt of a CPP pension (unless it is less than one year).
• Your client must have contributed to CPP for a required Minimum Qualifying Period.
• Your client must be incapable regularly of pursuing any substantially gainful occupation that your client has done in the past or has been trained to do, and
• Your client’s disability must be prolonged meaning the disability is likely to be long continued and of indefinite duration or is likely to result in death; .....”

If one of these elements is missing, then no disability benefits are payable.

Why apply?

• Compulsion by an insurer.
• Compulsion by a Government.
• In your client’s interest - if one successfully obtains benefits then the years of non contribution do not count against a beneficiary when calculating that person’s CPP pension at age 65.

How does the system work?

Your client completes the application forms.

Your client’s doctor completes the Minister’s form of medical report.

Your client’s claim is accepted.

Hooray!

OR

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.

OR

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.

“THERE MUST BE SOMETHING YOUR CLIENT CAN DO TO EARN MONEY”

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.

Reconsideration

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.

Appeal to the Social Security Tribunal General Division.

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:

1. the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

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.

What to do when consulted by a client who wishes to apply for CPP Disability

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:

1. Fully outline your client’s health difficulties and be specific.
2. Outline fully past work experience and training. Then state with reference to your client’s health difficulties why your client cannot perform that past work or for which your client was trained.
3. education. Many people whose education is grade 12 or less will exaggerate their achievement. A client may tell you that your client has a grade 11 when in fact your client has a grade 10 with a few subjects in grade 11. It is important to find the true level of education as that may indicate an inability to be retrained which is one of the arrows that the CPP officials have in their quiver to require a beneficiary (who has been awarded disability benefits) to retrain. Poor achievement will also eliminate the idea that at the application level all the client needs to do to be employed is to take more education.
4. Another aspect is how well your client did in school. Did your client breeze through without cracking a book? Or, as is more often the case, school was a struggle – no matter how your client tried your client’s marks were dismal. This too goes to the issue of retraining.

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.

What is the Test?

Section 42 of the Canada Pension Plan states as follows:

“(2) For the purposes of this Act,
1. 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,
1. 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
2. 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; .....”

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 [1991] #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) [2001] F.C.J. No. 1217 (Federal Court of Appeal). is the leading case in this area. Villani decided:

• A decision-maker must consider the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience.
• Parliament must have intended that the legal test for severity be applied with some degree of reference to the "real world" rather than disqualifying someone from benefits on the basis that the applicant must be able to work at something no matter how fanciful.
• Exclusion from the appellant’s usual occupation is not the sole consideration, but rather whether the appellant is excluded from any substantially gainful occupation, which by that person’s background that person, may reasonably be able to do.
• Medical evidence is needed as will evidence of employment efforts and possibilities in assessing the appellant’s ability to perform a substantially gainful occupation.

Appeal to The Social Security Tribunal General Division

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:

1. Describe to the doctor your client’s education, work history and the physical (or other) requirements that your client states that each job (or for which your client was trained) required.
2. Ask the doctor to confirm those requirements with the client before writing the doctor’s report.
3. Ask the doctor to confirm that before the end of the Minimum Qualifying Period (usually pre-December 31, 20XX) your client could not perform any past job (or for which your client was trained) giving details of the medical reason why that was not possible. The doctor should state that there exists no reasonable prospect of your client recovering from this condition in the foreseeable future.
4. Sometimes a client can work but in an irregular and unpredictable way. If that is the case have the doctor state that while your client may be able to show up for work, your client could not be counted on to perform work duties or if at work could not be counted on to stay because of the client’s disability health issues.

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.

END NOTE

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.
Victoria, B.C.
February 22, 2017