Denied CPP Disability?

Here is a quick synopsis of the legal process involed in appealing denied CPP benefits.

CPP BRIEF C.P.P. HISTORY

The Canadian Pension Plan was created and proclaimed in 1965 to provide eligible applicants with a disability pension.  Since then, the C.P.P. Tribunals and Courts have been refining it’s application through many legal tests.  In 1999, Justice Iccabucci described the C.P.P.’s purpose as “a compulsory social insurance scheme which was enacted in 1965 in order to provide contributors and their families with reasonable minimum levels of income upon retirement, disability or death of the wage earner.”

Since then, and with the advancing age of the baby boomer generation, the application for benefits has become more labyrinthine and tactical, therefore a good basic knowledge of the system and it’s legislated terminology is essential when preparing for argument.

Although the Canadian Pension Plan established six (6) types of pensions, the most litigated pension by far is the C.P.P. Disability Pension.  This paper will concern itself with only the disability pension and its prerequisites and eligibility thereof

REQUIREMENTS

There are two statutorily embedded requirements before an applicant can be qualified for the Canadian Pension Plan disability pension. The applicant must meet these requirements on a balance of probabilities. The requirements were set out concisely in the matter of Stafford v. MHR “To be eligible for a disability pension the applicant must satisfy two basic requirements.  He must have made valid contributions to the C.P.P. for a minimum qualifying period [MQP] and he must prove that his disability (physical or mental) is “severe or prolonged” as defined by s.42(2)(a) of the act.” 

THE CONTRIBUTORY REQUIREMENTS

There are certain contributory requirements in order to be considered for C.P.P. eligibility.  The first is that the applicant must be a contributor to the Canadian Plan Disability Pension.  Similar to the Insurance Act, the theory behind this is that it prevents applicants who have made insufficient C.P.P. contributions from reaping the benefits of the C.P.P.  If you don’t contribute, you cannot collect. The Act defines the contributor in Section 2(1) as a person who has made C.P.P. contributions through only two ways:  by employment earnings or by self-employment earnings.  C.P.P. as most of us are aware, is a contribution that is deducted from a pay-cheque and sent to the Federal Government by his or her employer.  Wherein the applicant is self-employed the onus falls on the applicant to ensure that the deduction from income is sufficiently made to constitute a contribution. 

The second contributory requirement is the age requirement.  Section 44(2)(b)(i) states that the applicant’s contributory period commences the latter of January 1, 1966 or when the applicant reaches 18 years of age. 

The third contributory requirement is the applicant must not be receiving a retirement pension.   An applicant cannot receive a retirement pension at any age from C.P.P. or from any Provincial Plan and also receive a C.P.P. disability pension as per section 70(3) of the Act.

The fourth contributory requirement is the minimum qualifying period (M.Q.P.).  The Minimum Qualifying Period, or MQP, is the minimum number of years the applicant needs to have contributed to C.P.P. to be eligible for a disability benefit. Section 44(2)(a) of the Canadian Pension Plan Act sets out the current minimum qualifying period requirements which, since 1998 have remained unchanged. The current rule is that he or she must have contributed in four out of the last six years. Also, he or she must have to have made valid contributions in each year, which means he or she must have paid contributions on at least $4,200 in income (for 2006).

The launch pad for the calculation of the minimum qualifying period is the date of the onset of the applicant’s disability.  Therefore, the minimum qualifying period begins to be calculated when the contributory period ends. 

How is the date of onset of the applicant’s disability calculated?

The date of onset or the date of disability, must be the date that the disability became so intense so as to render the applicant unable to regularly pursue any substantially gainful employment for an indefinite period of time.  The date of onset is governed generally by medical evidence or expert reports which indicate the date that the applicant’s disability began and when the applicant stopped working at his or her last job.It is important that this date of onset alleged by any applicant be confirmed by objective medical evidence. 

If the applicant has not contributed enough years into the Canadian Pension Plan it would normally mean that he or she would not qualify for the C.P.P. disability benefits.  However, the applicant may still qualify if certain sub-requirements were met such as he or she delayed applying (that is, he or she had enough years of contribution when he or she first became disabled and now he or she has been continuously disabled since then, but he or she does not have enough now).  Another reason may be that the applicant’s C.P.P. contributions were stopped or reduced because he or she was raising young children under the age of seven, or the applicant has obtained enough C.P.P. credits from a former spouse or common-law partner. 

SECTION 42(2)(a) – THE C.P.P. “THRESHOLD”

Assuming that the applicant has met his or her minimum contributory requirements, the next criterion involves another myriad of considerations. 

Foremost amongst these considerations is passing the “threshold” set-out by the C.P.P. Disability Act under Section 42(2)(a) which reads as follows: 

When person deemed disabled:

    (2) For the Purposes of this act: 

(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..

Therefore, the essential components that must be satisfied within this “threshold” is whether the applicant can prove that he or she is suffering from a severe and prolonged mental or physical disability, meaning that he or she was “incapable of pursuing any substantial gainful employment” for a “prolonged time”, meaning of long continued and of indefinite duration or is likely to result in death. 

The language and components of Section 42(2)(a) is extremely vital to any useful application of the Act’s disability eligibility requirements and the consequent assessment and preparation of an applicant’s case  -  as it would be in the preparation for a threshold motion under Bill 198, which is comparable in theory.  Like the Bill 198 threshold, it is crucial that the definitions in s.42 (2)(a) be properly dismembered and scrutinized in preparation for a hearing.

SEVERE

The legislation sets out the requirement that an applicant must have a severe disability for eligibility.   For tactical considerations, the term “severe” should be properly divided into four (4) separate elements that must all be proven on a balance of probabilities in order for an applicant’s case to succeed and proceed to the next legislative definition of “prolonged”.   

The four (4) elements are that a disability is severe if the applicant are (1) incapable; (2) regularly pursuing;(3) any;(4) substantially gainful occupation. 

It is important to understand each component differently and in relation with each other.

“Incapable” refers to the applicant’s incapacity to regularly pursue any gainful occupation.  Therefore, one must be mindful of the interaction of the words “incapable” and the word “any”, given that if an applicant can only prove she is incapable or working in his or her usual job and fails to prove that he or she cannot become employed in another capacity, his or her application may not succeed. Incapable must, by medical evidence, refer to the total incapacity to work in his or her position – or in any other gainful occupation to which he or she is suited.

“Regularly Pursuing” is the key pivotal term that should be deconstructed and applied vigorously within the applicant’s submissions.  This term pivots on the theory of predictability, which means that should an applicant be unable to commit him or herself to a regular work schedule from one shift to the next because of the pain he or she suffers from, then that person should be considered totally disabled.  How can applicant that can only manage to work a few hours a day because of varying degrees of pain not be considered disabled?  “Regularly" therefore means that the limitations associated with a disability are persistent to the point of being continuous or uninterrupted. It is the continuous or uninterrupted nature of a severe disability that prevents a person from doing any substantially gainful work.

Further, it does not matter if the applicant has a sympathetic employer that may be willing to work with a flexible work schedule.  In Eddy v. MHRD Justice Power dismissed the argument of perhaps an empathetic employer “may” accommodate an applicant’s incapacity with a flexible work schedule.  He noted that “The requirement that a supportive employer with a flexible work schedule or a productivity requirement would be needed..is a requirement not realistically attainable within today’s competitive workplace”. 

Stripped down therefore, the argument therefore is simply that an employer may prepare a schedule or work attendance for the (employee) applicant, but there is no guarantees that the applicant will be able to properly adhere to it due to the unpredictability of his or her pain.

 “Any” is a term that was clarified in the Vallani v. Canada. The applicant does not have to prove that he or she is totally disabled from any occupation, just those substantially gainful occupations that he or she is incapable of regularly pursuing within the personal characteristics of the applicant, taking into account such factors such as age, education, language proficiency, work and life experience and viewing them through the prism of commercial   reality.

The Minister’s argument with reference to "Any" refers to an occupation in which a person might reasonably be expected to be employed because of his or her skills, education and training. It may also refer to the capacity to acquire the necessary skills, education or training in the short-term whether on the job or otherwise given the person's limitations and restrictions. In some instances, an individual may have worked at a highly skilled position such as an engineer in the field and can no longer continue in that work. However, the individual has the capacity to work at a desk job.  The factor considered under any is skills, education and training. The determination of "any" occupation also considers the person's personal characteristics.

“Substantially gainful occupation” is noted at the end of the severe disability definition.  An occupation where the remuneration for the work performed and services rendered is at a substantially gainful amount. The substantially gainful amount is a benchmark of earnings that likely indicates whether a person is showing regular capacity for work.   In the seminal case of Boles v. M the Pension Appeals Board held that a substantially gainful occupation must be determined through an objective assessment of the remuneration and benefits received by the employee for his or her best services at the time of the disability definition.  “Substantial” meant that something has substance; not imaginary, unreal or apparent only true, solid and real.   

PROLONGED

The criterion of “Prolonged” is only considered after the applicant’s medical condition is considered “severe.”   It is quite possible that a disability will be severe but not prolonged, therefore a C.P.P. disability pension will only be granted if both the components of severe and prolonged are met. 

The definition indicates that 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 definition key words are self-serving.  Prolonged will only met when the “likely to be long continued" and of "indefinite duration" components are simultaneously met. The individual must demonstrate that both components are met at the same time to be eligible for C.P.P. disability benefits.

“Prolonged” essentially refers to the time that a person is unexpected to be unable to work because of the “severe” disability he or she suffers from.  The medical evidence therefore must project a degree of “uncertainty” within its prognosis as to the duration of the applicant’s disability. 

“Likely to be long continued" means that an applicant must offer the combination of evidence and objective medical evidence as to the disabling medical condition(s) which supports that there is no possibility of a return to any work within a minimum of one year. The possibility of a return to any work must be considered into the future.  If the applicant is predicted to do any work in the future the applicant will not meet the component of "likely to be long continued" and will likely be denied.

"Indefinite duration" means no end in sight. Where the objective medical evidence offers a prognosis that indicates unpredictability with respect to the when an applicant will recover sufficiently in order to resume some kind of substantially gainful employment, the applicant will be most likely be granted disability benefits.

THE AJUDICATIVE PROCESS

The compositional hierarchy of the C.P.P. adjudicative process is as follow:

An applicant presents documented medical evidence to the first level of adjudication, which is the Ministerial Consideration.  Should disability be denied, applicants may then submit an appeal (within 90 days of the Ministers notification in writing) for Ministerial Reconsideration.   Should the disability again be denied, the applicant may submit an appeal to the Review Tribunal, where he or she would require proper representation.  It is at this stage that the Ministry is able to assess the credibility of the applicant.

The Review tribunal consist of a three member panel, composed of a physician, a layperson and a member of the Ministry.  Similar to a mediation, the tribunals usually take place in a hotel room.  Counsel for the Ministry is also present for cross examination.  The presentation of evidence is similar to that of a common law trial.  The applicant firstly presents evidence in chief by calling witnesses one by one.  These witnesses are then cross examined by the Minister’s representative.  The applicant is then permitted to reply to evidence not already addressed in chief.  The panel then may ask questions (in my experience the physician always asks questions of the applicant) and concludes by advising that a written decision will be rendered, which usually takes 60 to 90 days.

Should the applicant again be denied, he or she may again submit an appeal to the Pension Appeals Board, (P.A.B.) which essentially follows the same regime.

CONCLUSION

In order to be in command of the case, it is absolutely vital that submissions offered in examination and during concluding submissions are properly tailored to the wording of s.42(2)(a).  Time is usually a minimum, given that the tribunals roll into town and hear many cases within a short span.  Each of my cases presented were completed within approximately 90 minutes – therefore it is important that you immediately target the theories of severe and prolonged during examinations in chief, while referring to the supportive medical evidence.   Your client’s credibility, blended with appropriate submissions indicating that he is she is incapable of regularly pursuing any substantially gainful occupation is prolonged is what must be concisely addressed.  During closing submission, keep the matters to a point.  There are other cases waiting to be heard and the tribunal will simply be wanting to hear your evidence, wrap it up and move onto the next case.  Although full disclosure of medical evidence is made prior, only address medical evidence that offers a diagnosis/prognosis relevant to s.42(2)(a) given the time limitations.

Lastly, and to again reiterate - if the medical evidence allows, focus heavily the theories of unpredictability and uncertainty.  These are the key terms that can be utilized as a focal point which can interweave all the terms and definition within the s.42(2)(a). 

Matt Lalande 

The Litigator Magazine January 2007 

If you have been denied CPP disability benefits and wish further advice, please contact Matt Lalande at 905-639-8894 or email him at matt.lalande@haber-lawyer.com