Review Tribunal
A Self-Help WorkBook
creAted By Bc coAlition of people WitH diSABilitieS funded By tHe lAW foundAtion of ontArio
Thank you to The Law Foundation of Ontario, Access to Justice Fund for funding this workbook.
Writing Robin Loxton and Peter Beaudin Editing and Design Ann Vrlak
Legal Consultation Jess Hadley, Community Legal Assistance Society BC Coalition of People with Disabilities
204-456 W. Broadway Vancouver, BC V5Y 1R3
Tel: 604-875-0188 | Toll-Free: 1-800-663-1278 Fax: 604-875-9227 | Email: [email protected] Web: www.bccpd.bc.ca
Inside This Workbook
Preface 4
Introduction 5
How To Use This Workbook 5
CPP Basics 6
The Review Tribunal Hearing 7
Starting Your Request for a Hearing __________________________________ 8 Understanding Why People are Denied CPP-D 8
Deciding Whether an Appeal is Right for You 9
Do You Need Help? 10
The 90-day Deadline 11
Case Examples 13
Checklist For Submitting a Notice of Appeal 17
Preparing Your Case _____________________________________________18 Reviewing Your Hearing File 18
Key Strategies for Success 19
Obtaining Additional Information 21
Case Examples 23
Checklist for Preparing Your Case 27
Deciding How to Present Your Case__________________________________ 28 Representatives and Support People 28
The Hearing Date 29
The HRSDC Submission 29
Preparing Your Written Submission 30
Legal Research 33
Case Examples 34
Checklist For Deciding How To Present Your Case 36
Making Your Presentation _________________________________________ 37 A Step-by-Step Look 37
Presenting Your Case 38
Tips to Help You at the Review Tribunal 39
Case Examples 40
The Review Tribunal Decision 43
Beyond the Review Tribunal 43
Conclusion ___________________________________________________45 Frequently Asked Questions _______________________________________46
Preface
On April 26, 2012, the Government of Canada introduced Bill C-38 in the House of Com-mons. This Bill contains drastic changes to many federal institutions, including the abol-ishment of the Office of the Commissioner of Review Tribunals and the Pension Appeals Board. Both bodies will be abolished as of April 1, 2014 and replaced by a Social Secu-rity Tribunal. This new “super” Tribunal will also handle EI appeals and other matters. The Review Tribunal and Pension Appeals Board will continue to function until April 1, 2013. After that time, there will be a one-year transitional period to the Social Security Tribunal
Most of the information in this Workbook will continue to be relevant. This is especially true of the sections covering written submissions. Written submissions will become more important than ever because there is no guarantee under the new changes that oral hearings will be held for all appeals. Decisions can be made based on written sub-missions alone
Introduction
This self-help Workbook is designed to help people whose Canada Pension Plan dis-ability benefits (CPP-D) application and Reconsideration Request have been denied, and are contemplating the next level of appeal–the Review Tribunal. We hope you will find it useful, especially if you live in a rural area and do not have access to an advocate or other resources.
After providing an overview of the appeal process and the Review Tribunal hearing, the Workbook focuses on the following steps:
• Starting Your Request for a Hearing
• Preparing Your Case
• Deciding How to Present Your Case
• Making Your Presentation
How To Use This Workbook
For most chapters, we provide several case examples followed by questions and an-swers. The purpose of the cases is to illustrate how the appeal process works, what you need to do and decide, and what issues you need to tackle.
You’ll also see a checklist at the end of key chapters that will give you some things to think about or information to gather about your own case.
WATCh FOr ThEsE symbOLs
CAsE ExAmpLEs
See common appeal issues and problems
Q & A
Answer questions about the case examples
ChECkLisT
Gather information for your case
Tip
Remember this tip or key issue
CPP Basics
The Canada Pension Plan (CPP) is administered by the federal government. The depart-ment responsible for CPP is Human Resources and Skills Developdepart-ment Canada (HRSDC). The CPP operates in every province, except Quebec which has a similar program called the Quebec Pension Plan. The CPP legislation provides a number of different benefits including:
• Disability benefits (CPP-D),
• Benefits for children of people receiving CPP disability benefits,
• Retirement pensions,
• Death benefits,
• Survivor’s benefits, and
• Benefits for children of deceased contributors. This guide deals with CPP-D benefits only.
Qualifying for CPP-D
To qualify for CPP-D, you need to meet three basic criteria. You must: 1 Be under 65 years of age.
2 Have made the required amount of contributions to CPP in the years before you became disabled
3 Have a “severe and prolonged” disability, as defined in the CPP legislation.
Overview of the Appeal Process
There are three stages to the appeal process when your application for CPP disability benefits is denied. The first stage is the Reconsideration. The second stage is an appeal to the Office of the Commissioner of Review Tribunals (OCRT). The third stage is an ap-peal to the Pension Apap-peals Board.
sTAgE 2 Appeal to the Office of the
sTAgE 3 Appeal to the pensions sTAgE 1
In this Workbook we focus on the second stage: appealing to the Review Tribunal. This means we start from the point where you have been told that your Reconsideration has been turned down.
The Review Tribunal Hearing
Review Tribunal hearings are set up and scheduled by the Office of the Commissioner of Review Tribunals (OCRT). The OCRT attempts to hold Review Tribunal hearings in the community of the person who is appealing–the appellant. Hearings usually take place in hotel meeting rooms.
If you live in a rural setting, you may have to travel to a regional centre near you for the Review Tribunal hearing. The OCRT can compensate you for the costs of attending the hearing. Also, the OCRT can arrange for any language interpretation or disability-related needs you may have at the Tribunal. A one-and-a-half hour time period is usually sched-uled for the hearing.
For each hearing, a three-person Review Tribunal panel is chosen by the Commissioner from a list of several hundred people appointed by the federal government. The Review Tribunal is independent from HRSDC, the government Ministry that made the decision to reject your application. The Chair of the three-person Review Tribunal panel is re-sponsible for conducting the hearing and is always a lawyer. In appeals involving disabil-ity benefits, one of the other members is always a health professional, usually a doc-tor or registered nurse. The role of the Review Tribunal is to hold a hearing to decide whether your appeal for CPP disability benefits can be granted.
The review Tribunal has the power to:
• Allow your appeal: to decide if you are eligible for benefits and give you the full amount of retroactivity you are seeking, or
• Allow your appeal in part: to decide you are eligible for benefits but give you less retroactivity than you are seeking, or
• Decide it has no legal jurisdiction (legal authority) to rule on your issue, or
• Deny your appeal: to decide you are not eligible for benefits.
The Review Tribunal makes its decision by applying the CPP legislation to the facts of your case
Starting Your Request for a Hearing
By now, you have applied for disability benefits and been turned down twice: first on application and then on Reconsideration. You will have received a letter advising you of the Reconsideration decision. You now have the right to appeal to the Review Tribunal
Understanding Why People are Denied CPP-D
It is very helpful to know why other people have been denied CPP-D. The most common reasons applications are turned down are:
• HRSDC does not accept that the applicant’s disability is sufficiently severe and/or prolonged, or
• The applicant has not made the required contributions to the Canada Pension Plan.
Disability is Not Severe
In Appendix C of this Workbook, you will see that the legislation says a person’s disabili-ty is severe when the person is “incapable regularly of pursuing any substantially gainful occupation”. In other words, you must show that your medical condition(s) is so severe that you cannot work at any job regularly enough to earn a modest living.
Typically, when an application or Reconsideration is denied, HRSDC has decided that al-though the person cannot do his or her former job, they should still be able to do some type of work suitable to their condition.
Keeping in mind that HRSDC places a lot of importance on medical opinions about the degree of restriction arising from a medical condition, if your doctor has said that you are no longer able to perform physical activities, such as bending or lifting, HRSDC may have decided that you can do some kind of office work. Or, if your doctor says that you have responded well to treatment, HRSDC may have assumed that your condition is not serious enough to stop you from working.
A disability may not be considered prolonged if a doctor has written that the CPP-D ap-plicant is awaiting surgery for the primary medical condition. HRSDC has been known to conclude that the surgery will result in the full recovery of the applicant and they can therefore return to work. Therefore, the prolonged requirement has not been satisfied.
Not Enough Contributions to CPP
An application or Reconsideration can be denied because HRSDC has determined that the person has not contributed enough to CPP, at the right time. The Minimum Qualify-ing Period (MQP) is the minimum period of time that you must have worked and con-tributed to CPP in the years immediately before you became disabled (as defined by the CPP legislation) in order to be eligible for CPP–D benefits. Currently, in most cases, you must have made valid contributions to CPP in at least four out of the past six years, or three out of the past six years, if you have made CPP contributions for more than 25 years See Appendix b of this Workbook for a more detailed explanation of the MQP.
it is important to check that a mistake has not been made in calculating your bution period, nor an omission or failure to apply a provision that affects your contri-bution period and mQp date. if you do not have sufficient contricontri-butions there is no basis for an appeal.
In cases where a person is a “late applicant”–HRSDC has applied the Late Applicant Provision–a person is allowed to have an MQP closer to the onset of her or his disability (see W). Nonetheless, late applicants have to prove that their health restrictions have stopped them from working ever since their MQP which, because they applied for CPP-D late, may be a considerable time in the past.
Deciding Whether an Appeal is Right for You
Although you have the right to appeal to the Review Tribunal, there are a number of ways in which the Tribunal’s authority is limited. For example, there is no provision in the Canada Pension Plan and Old Age Security Act that gives a Tribunal the power to grant an appeal simply on compassionate grounds. To receive CPP-D, you must meet the criteria in the legislation.
In the following situations, the Tribunal will have no option but to deny your appeal:
• If you do not have sufficient contributions to the Plan,
• If you are a late applicant and you do not have any medical evidence to show that you were disabled at the time you last qualified for benefits, or
• If you have been receiving CPP early retirement benefits for more than 15 months, or if you became disabled after you took early retirement.
so, you need to decide if your chances of success are good enough to make it worth-while to appeal. if you are having doubts, answering these questions may help you decide:
• By what date does your denial letter say you have to prove that you were not able to work because of your disability? (the Minimum Qualifying Period)
• Do you think that your medical condition has stopped you from pursuing “substan-tially gainful employment” ever since your MQP date?
• Is your health improving, so that you expect to return to work in the near future?
• Do you think that you can be successfully retrained for some other kind of job?
• In addition to your medical condition, are your age, education and/or language skills major obstacles to working?
• Do you think that your doctor(s) agree that your medical condition prevents you from working?
If your answers to these questions indicate that you cannot work or that you have significant barriers to employment for the foreseeable future, you should seriously consider appealing to the Review Tribunal. If you are still unsure about whether to go ahead, get the advice of an advocate or someone who has knowledge of CPP-D to help you decide
Do You Need Help?
Sometimes it can be difficult to fully understand why your Reconsideration Request was turned down. Or, you may be in a situation where you do not think you can manage an appeal on your own.
If you think you will need help with your appeal, it is a good idea to look for that help as soon as possible. Please see Appendix A for Resources.
The 90-day Deadline
if you are approaching the 90-day deadline to appeal, and have not yet decided whether you want to pursue an appeal, we recommend that you submit your request for an appeal anyway. You can withdraw your appeal later, if you choose not to go
ahead.
If you do not make a request for a Review Tribunal and then change your mind after your 90-day deadline has expired, you are likely to lose your opportunity to appeal. If you lose your chance to appeal, your only option will be to make a new CPP-D applica-tion.
You can either send the OCRT your own letter of appeal or you can use the Notice of Appeal form that is available on the OCRT website. Please see Appendix A for informa-tion on the form.
When sending in a notice of appeal, you do not have to explain the reasons for your appeal. All you have to do is state that you want to appeal HRSDC’s recent decision on your CPP-D benefits. A hearing date will not be set for several months, so there is no hurry.
When you send in your notice of appeal be sure to include: • The date,
• Your name, address, telephone number and Social Insurance Number, and
• Your signature
If possible, include a copy of the Reconsideration decision letter you are appealing, and make a note on the copy showing the date you actually received the decision letter.
The Hearing File
As soon as the OCRT receives your request for a Review Tribunal, they start building the Hearing File. They ask HRSDC to send them all the relevant CPP-D case file information you have submitted during the application and Reconsideration process. This includes
contributions, decision letters and adjudication summaries. Also included will be the OCRT correspondence and any new information you have sent in.
You should wait until you receive a copy of your Hearing File from the OCRT, before you put together your appeal arguments. Once you know exactly what material is in the Hearing File, you will be in a better position to get ready for your appeal.
If you plan to have a representative help you with your appeal, you should tell the OCRT as soon as possible.
OCRT Response
The OCRT should send you a letter of acknowledgement within a couple of weeks of receiving your appeal request. With the letter, they will send you a brochure that de-scribes the appeal process and asks if you would like a copy of a bilingual video called “Your Best Shot”. The video explains how Review Tribunal hearings work and has tips on how to prepare for the hearing. For more about this video, please see Appendix A At some point, a Client Services Officer (CSO) will be assigned to your case. You can con-tact the CSO, if you have any questions about the appeal process.
Case Examples
here are the first Workbook case examples. When you read these cases, you’ll learn more about important parts of the Cpp-D appeal process.
Stella
Stella is a 58-year-old woman who has worked many years as a Licensed Practical Nurse (LPN). She left school after Grade 10 and was hired as a nurse’s aide shortly after that. A number of years later, after taking upgrading courses, she was hired as an LPN in an extended care facility.
Stella stopped working about two years ago due to severe back pain. She has been diagnosed with degenerative disc disease and osteoarthritis. Her symptoms include chronic neck and lower back pain that radiates down her legs and up her arms. Her physical limitations include restricted mobility and range of motion: she cannot bend or lift and cannot sit or stand for long periods. More recently, she has also been diagnosed with major depression. This condition has resulted in low mood, fatigue, interrupted sleep, and poor concentration and memory. Her episodes of severe depression can last for several weeks at a time. Overall, she reports that she feels that her health is getting worse over time.
Stella applied for Employment Insurance sickness benefits after leaving work. She received these benefits for 15 weeks and then enrolled in a job training program that teaches computer skills. Her attempt at retraining was unsuccessful: she had to drop out after only two weeks. She was not able to sit at her work station and focus on the assigned tasks due to pain and depression. She applied for CPP-D.
Stella’s CPP disability application was denied. She received the denial letter about four months after she submitted the application. The letter said that the information she provided did not satisfy HRSDC that her disabilities are severe enough to prevent her from working. HRSDC concluded, that although she could not do her old job, she still had the ability to do some type of work suitable to her condition.
Stella decided to request a Reconsideration a few weeks after receiving the denial letter. She wrote a letter and enclosed a letter from her family doctor saying she believed her patient was unable to work, but did not provide reasons why. X-rays were also included along with a letter from a specialist stating that, although there was some evidence of arthritis in her neck and lumbar spine, he was recommending physiotherapy, exercise
started seeing a counsellor and psychiatrist, but no psychiatric reports or assessments were available.
About six months later, Stella received a letter stating that the HRSDC Reconsideration adjudicator upheld the denial of disability benefits. Reasons for denial included:
• There was not enough objective medical evidence to establish a finding of a severe disability, and
• The specialist had indicated her medical condition was likely to improve with the ap-propriate treatment.
Therefore, HRSDC concluded she would be able to return to work in the near future.
Questions
1 Could a case be made that Stella’s medical conditions are a “severe” and “pro-longed” disability?
2 Is it likely that Stella meets the contributory requirements for CPP disability ben-efits?
3 Besides her medical condition, what other aspects of her situation might help her case?
Answers
1 There are facts that show that Stella has a severe and prolonged disability. Physi-cally, she has a chronic back condition with persistent symptoms which make her unable to work as an LPN. There is documentation of her degenerative disc disease and osteoarthritis. Mentally, she has major depression which further restricts her ability to work and perform activities of daily living. She has been referred to a psychiatrist. All these conditions together arguably prevent Stella from performing any work. Stella also reports that she feels her disability is getting worse over time. Her attempt to take a re-training program was also unsuccessful due to her health limitations.
2 Stella’s record of earnings and contributions to the plan will be in her hearing file. We can assume that she has sufficient contributions to qualify for CPP-D. First, the Reconsideration letter did not indicate there was a problem with her
qualify-3 In addition to her medical condition, there are a number of other factors that af-fect her ability to obtain substantially gainful employment. For example, she has a limited general education and has only had one type of job for most of her life. Her advanced age is also a consideration. Stella would not be a good candidate for retraining which has been tried unsuccessfully.
Jack
Jack was working as a foreman on a construction site about two years ago, when he was injured on the job. He sustained multiple fractures to his right shoulder and has not been able to work since. He is right-handed and, along with chronic pain, he has limited use of his right arm, even after treatment.
Jack is 45 years old and has had a number of different jobs over the years. He has made regular and consistent contributions to the Canada Pension Plan. He has a college edu-cation. Initially, he thought that he would only be off work for a couple of months after his injury. However, his recovery has taken much longer than expected due to compli-cations and a couple of surgeries that did not produce the expected results. His family doctor advised him that he may have a permanent disability.
At the time of his Reconsideration Request, his orthopaedic surgeon wrote a letter to his family doctor stating she believed his shoulder problem could be rectified by anoth-er surganoth-ery and she was hopeful he would eventually regain the use of his right arm. This letter was made available to CPP.
When Jack received the Reconsideration decision, he had not had the proposed sur-gery–it was still about two months away. The Reconsideration decision was denied because HRSDC said there was medical evidence showing his disability would be recti-fied by surgery.
Questions
1 What challenges does Jack face in qualifying for CPP disability benefits?
2 Because he has not had his shoulder surgery yet, should Jack wait to submit his notice of appeal?
Answers
1 Jack faces a challenge because there is a chance his medical condition may signifi-cantly improve if he has another surgery and he may be able to work. However, he cannot be sure. Past surgeries were not as successful as he had hoped, and his doctor has told him he may have a permanent disability. On the positive side, if the
before too long and he would not have to worry about disability benefits. Another consideration is that his level of education and range of experience may mean that retraining is a viable option. However, if he assumes the best and does not submit a notice of appeal within 90 days, and his medical condition does not improve, he may miss out on the disability benefits he is entitled to receive.
2 Waiting until the end of the 90-day appeal period will not be enough time to know whether the surgery is effective or not. Therefore, it would be in Jack’s best inter-est to assume the worst and file the notice of appeal before the 90 days expire. It can take several months for a Review Tribunal to be scheduled–and adjournments can be requested–which should give him more time to assess any improvement or deterioration in his health condition.
Marco
Marco decided to apply for CPP early retirement benefits, when he turned 60. Prior to taking early retirement, he did not have any significant medical conditions that limited his ability to work. When Marco was 63, he was examined by his family doctor who detected a number of cellular abnormalities. He was sent for a number of tests and he was diagnosed with a rare, aggressive form of cancer by a cancer specialist. In the opinion of the specialist, the cancer had established itself in the past few months and his prognosis is poor: Marco may have only a few years left to live.
Questions
1 Can Marco qualify for CPP disability benefits?
2 Would it make a difference if Marco was not on CPP early retirement?
Answers
1 Marco cannot qualify for CPP disability benefits. He has been on CPP early retire-ment benefits for more than 15 months and he became disabled after he started receiving early retirement benefits. Even though his cancer is severe and prolonged right now, the Review Tribunal cannot grant disability benefits on compassionate grounds
2 Not necessarily. In order for Marco to qualify for disability benefits, his medical condition must have prevented him from working before the end of his Minimum
Checklist For Submitting a Notice of Appeal
Make sure you have done the following:
• Made a note of when you received the Reconsideration decision letter and calculated when your notice of appeal is due at the OCRT (90 days later);
• Reviewed the Reconsideration decision’s reasons for denial;
• Decided whether you have a reasonable chance of success with an appeal to a Review Tribunal;
• Decided whether you need help with your case; and
Preparing Your Case
Reviewing Your Hearing File
The Tribunal will send you a copy of the Hearing File two to three months after ac-knowledging your appeal. They will also estimate when your hearing will be held.
it is very important to carefully review and familiarize yourself with all the informa-tion in the hearing File. The review Tribunal panel will read the hearing File first when getting ready for your case.
As you go through your Hearing File, check to see if there is any important information that is missing. In particular:
• Read all the medical letters and reports,
• Check the contribution record, and
• Look at HRSDC’s adjudication summary notes for the application and Reconsidera-tion decisions.
You should keep the following questions in mind as you review your Hearing File:
• Is there new information in the file you were not aware of?
• Is there any important information that has been left out?
• What information supports your claim that you should qualify for CPP-D?
• What information creates doubt about your eligibility for CPP-D?
• Do the HRSDC adjudication notes give you more insight into why you were turned down?
The answers to these questions will help you to decide what to do next. Remember to focus on identifying the things you need to do or obtain, to support what you are going to say at your Review Tribunal.
Key Strategies for Success
Here are some things to think about when putting together your case:
• It is up to you to prove that you meet the CPP-D eligibility criteria. It is not up to HRSDC to prove you do not. This means that it is your responsibility to identify and provide evidence showing that you fulfill the requirements of the CPP-D definition. Remember, the key is to prove you have a physical and/or mental condition that is both severe and prolonged, as defined in the Act. See Appendix C for the full defini-tion of “disability” under the CPP legisladefini-tion.
• Applying for disability benefits involves talking about your limitations and what you cannot do. Throughout the application and appeal process, you have to explain your health-related restrictions and how you can no longer do things you used to be able to do. This can be difficult, but it is very important that you acknowledge your limi-tations. The Review Tribunal needs to understand the full impact of your disability.
• Try to gather as much medical evidence to support your case as possible. Medical evidence, such as results of lab tests, X-rays and psychiatric assessments, is given a lot of weight by a Review Tribunal.
• Doctors’ opinions are also important, but they need to be detailed and provide the facts on which the opinion is based. A simple conclusion by the doctor that you are “disabled” will not be very helpful in your appeal. The doctor must explain why.
• The opinions of family doctors are always important, but there are some condi-tions that require a diagnosis by a specialist. For example, a Tribunal will not accept the diagnosis of a mental condition from a family doctor. The same is true of some other conditions such a fibromyalgia.
• Talk to your doctors and any other health professionals involved in your care. Find out what they can to do to help you qualify for disability benefits. It is not unusual for health professionals to lack knowledge about how your disability affects you on a day-to-day basis or what problems you have performing work activities. Educate your health care providers and make sure they are aware of your current circum-stances
• Many doctors will charge for a detailed medical letter. Although the OCRT will pay for the cost of obtaining copies of any existing medical records that are not part of the Hearing File, they will not reimburse you for the cost of obtaining new medi-cal opinions. However, a good medimedi-cal letter is a sound investment because it will improve your chances of success. Do not ask a doctor to write a letter, unless they support your claim.
• If a health professional agrees to write a letter or you obtain new medical reports, gather them as soon as possible. You should review the new information for its relevance and submit it to the OCRT in advance of the Tribunal, if possible. Do not submit information that does not help your case. On the other hand, if your Hearing File already contains references to medical reports that are not on file or indicates that you have appointments coming up in the near future, you can be sure that the Review Tribunal will ask questions about the missing information or the outcome of the new appointments. You should be prepared to deal with these questions.
• Although medical information is important, consider other information that will help your case. For example, have you had any vocational assessments or taken any job training programs? Any information that shows your barriers to work or re-train-ing is useful.
• A Review Tribunal is supposed to use a “real world” context to understand and as-sess your disability. This means, for example, that a 55-year-old person with a Grade 5 education, who has worked as a parking lot attendant all his life, cannot reason-ably be expected to find work as an accountant. However, an accountant could be reasonably expected to find work as a parking lot attendant. Are there factors such as age, education and language skills that limit your ability to find new work or to be retrained? These are factors that can help your case.
A month or two before your review Tribunal, a Client service Officer from the OCrT will contact you to see how things are going. Use this opportunity to ask any questions
Obtaining Additional Information
One of the most important things you can do to prepare for your review Tribunal is to gather new information that supports your case.
In making its decision, the Review Tribunal can consider any information that was previ-ously submitted to HRSDC during the application and Reconsideration process. The panel can also consider any new information you or HRSDC submit.
Medical Letters
It is often important to include a letter from your doctor that supports your case. Make sure your doctor realizes that, to be eligible for CPP-D, you need medical evidence showing:
• You have been regularly unable to pursue “substantially gainful employment,” since your MQP ended, and
• Your condition is unlikely to improve in the foreseeable future.
Be sure to show your doctor a copy of the letter HRSDC sent you denying your Recon-sideration request.
If your medical information is out of date or if you have started seeing new health pro-fessionals, you should ask for letters and medical records that will address your current health-related restrictions to work. It may be necessary to clarify any opinion that was previously given to HRSDC.
Other Supporting Documentation Health Professionals
In addition to letters from your doctors, you may also provide the OCRT with letters from other health professionals who have been involved in your treatment and care. For example, you can request letters from physiotherapists, mental health workers, nurses, podiatrists and psychologists, to name a few. Many of these professionals can provide relevant information that could help your appeal.
Work-Related Contacts
You may also provide the OCRT with letters from past employers and vocational reha-bilitation personnel, who can comment on how your disability affects your ability to maintain employment.
Disability Programs
If you have not done so already, it may be helpful to submit documentation related to any other disability benefits programs you have applied for. Be sure to review the documentation for relevance or for any information that could be used to discredit your appeal. Do not use documentation that contains unhelpful or confusing information.
Family and Friends
You can also ask family and friends to provide letters, if they can comment specifically on how your disability affects your ability to maintain gainful employment.
Delays in Gathering Information
Occasionally, there may be a crucial piece of information that you cannot reasonably ex-pect to obtain in time for your Review Tribunal hearing. In these special situations, you should contact your Client Service Officer. It may be possible to postpone the Review Tribunal hearing and have it re-scheduled to a later date.
This may also be a good time to start doing legal research. Appendix D in this Work-book looks at some important decisions that will show you how the law has been interpreted in Tribunals.
Guidelines for Submitting Additional Information
The Review Tribunal has developed guidelines you must follow when submitting addi-tional information. The Tribunal expects you to provide all information you plan to use
two months before the hearing date. While it is possible to go against this policy and
send materials in later (or even at the hearing itself), we recommend you to get your information in by the two month deadline.
• If the Review Tribunal receives a lot of new information at the last moment, it may decide to adjourn the hearing to give the panel members enough time to review it thoroughly. This could result in a delay of up to six months.
• If everyone has a chance to review the material in advance, the hearing will be more efficient.
• Even better, HRSDC will sometimes offer a settlement without a hearing, on the basis of new information that is provided in advance.
Case Examples
StellaStella makes a list of all the health professionals she has seen about her physical and mental health:
• Dr. Brown has been my family doctor since 1997. I see her about once every three months.
• Dr. White, rheumatologist. One visit in September 2010.
• Dr. Black, psychiatrist. My first visit was in April 2011. I see her once every two months.
• Jack Green, registered psychologist. I have been seeing him once a month since September 2011.
• Susan Grey, physiotherapist. I first saw her for three visits in 2009. I went back to see her for two visits in the fall of 2010.
Stella also notes there are a number of other people, in addition to the above health professionals, she can ask to write letters of support. This includes her former employ-er, the vocational training instructor that recommended she drop out of the computer training course, and even her family members.
Questions
1 Stella does not have much information about how her depression affects her daily functioning and her ability to work. Should she ask for letters of support from her psychiatrist and counsellor, or is it too late to get additional information about her mental condition?
2 Will the Review Tribunal attach more importance to certain letters and opinions, depending on who they are from?
3 Once support letters are obtained, should they be sent to the OCRT immediately, or should Stella keep them until she goes to the Review Tribunal hearing?
Answers
1 It would be worthwhile for Stella to seek letters, and any other relevant reports, from both her psychiatrist and her counsellor. It is not too late. Her depression is having a significant impact on her daily functioning and her ability to work. It is im-portant that she give the Review Tribunal a complete picture of her disabling condi-tions. Her psychiatrist and counsellor are qualified to provide relevant information about her mental health condition.
2 Yes, the Review Tribunal will place different levels of importance on different kinds of information, depending on who provides that information. One factor the Review Tribunal will consider is medical expertise. For example, a psychiatrist would likely be considered an expert in mental health disorders, but not in osteoarthritis. Anoth-er factor the Review Tribunal will considAnoth-er is how well the doctor (or othAnoth-er witness providing information) knows the appellant. For example, a family doctor who has seen Stella over a long period of time on a regular basis may have more insight into her overall health limitations than a specialist who sees her once or twice.
3 We do not recommend that you send in support letters one at a time or keep every-thing until the Review Tribunal hearing. The best course of action is to compile all your supporting documentation, along with your written submission, and mail it to the OCRT office in one package as soon as you can. If you need to send more mate-rials later, you can
Joyce
Joyce stopped working as an office manager about eight years ago, as a result of injuries sustained in a motor vehicle accident. Due to financial pressure, she started looking for part-time work about four years ago. She was fortunate to be hired by an acquaintance to work in a flower shop for about 10 hours per week. Her employer allowed her to work at her own pace, in the back room of the shop. Even so, Joyce had to take fre-quent rest breaks, increase the amount of medication she took on the days she worked and take many sick days. For a period of 18 months, she earned about $500 per month. After that time, even working a few hours per week was too much for her.
Joyce’s Reconsideration decision letter denied her CPP-D on the basis that she did not have a disability that was both severe and prolonged, and that had also been
continu-Questions
1 Does the fact that Joyce has worked after her MQP mean she will not qualify for CPP disability benefits?
2 What can Joyce do to establish that she meets the definition of disability, even though she has worked after MQP?
Answers
1 If Joyce had the capacity to work on a full-time basis since her MQP, it would be very difficult for her to qualify for CPP-D. However, Joyce’s medical condition pre-vented her from working more than 10 hours per week, she often had to take time off and her monthly earnings were very low. It can be argued she still has a “severe” disability because the work activity she engaged in was neither “regular” nor “sub-stantially gainful”. The only reason she was employed was because of a benevolent employer accommodating her disability.
2 Joyce should talk to her doctor(s) about getting a letter that explains why her medi-cal condition has regularly prevented her from working in a substantially gainful occupation. It is important for the doctor to point out that, during the months she worked, she was incapable of working any more than she did and that she stopped working after 18 months because of her disability.
3 Joyce could also get a letter from her former employer explaining that he needed to accommodate Joyce’s disability on an ongoing basis and it was not a typical em-ployment relationship. Joyce could also write a letter explaining the challenges that prevented her from working more and the negative health effects she experienced because of her efforts to work.
David
David has a significant neurological disorder and has been on provincial disability assis-tance consistently for the last 10 years. The provincial government has now told him he must apply for CPP disability benefits.
David’s CPP-D application was considered under the late applicant provision. The Reconsideration decision stated there is not sufficient information to confirm he had a severe and prolonged disability by the time he last qualified for CPP-D nine years ago. The challenge that David faces is he has only been seeing his current doctor for two years and his medical file is incomplete. His previous doctor, who saw him for over 20
Ten years ago, David was hospitalized due to his neurological disorder, but the hospital was in a different part of the province.
Questions
1 Is there any information that David can obtain to show that he was disabled as of nine years ago (the last time he had sufficient contributions to qualify for CPP-D)? 2 Is there anything to indicate David has been unable to work continuously since his
Minimum Qualifying Period?
Answers
1 David can ask his current doctor, or the College of Physicians and Surgeons, for help to locate his former doctor’s records.
It is also important for David to contact the provincial government and request a copy of the provincial disability benefits application that was completed about 10 years ago. Provincial disability benefits applications have a section that must be completed by a medical practitioner. This section will likely address the applicant’s restrictions to daily living at the time the form was filled out.
David can also contact the hospital he attended 10 years ago and request a copy of his hospital records from that visit.
2 Yes. Because David has been on provincial disability benefits consistently for 10 years, and provincial disability benefits are income tested, it is extremely unlikely that he would have had any gainful work during that period. Also, if his disability was severe enough to prevent him from working 10 years ago, and his medical con-dition has not improved, then it is unlikely he would have regained the capacity to work.
Checklist for Preparing Your Case
Make sure you have done the following:
• Received and reviewed your Hearing File,
• Understood the specific reasons HRSDC has cited for the denial of your CPP-D,
• Decided what additional supporting documentation you need to get and from whom,
• Made contact with your doctor(s) and any other people you plan to obtain letters and written information from, and
• Planned to obtain all supporting documentation well before the time it should be submitted to the OCRT (two months before the hearing date).
Deciding How to Present Your Case
Representatives and Support People
You may also want to have a representative assist you with presenting your case at the Hearing. A representative can be anyone you choose: a friend, family member, union representative, community advocate, health professional or lawyer. It may be easier for someone else to assess the strengths and weaknesses of your case, and plan the most effective presentation to the Review Tribunal.
If you plan to have someone help you with your appeal, it is a good idea to advise the OCRT as soon as you can. You can notify the OCRT by writing a letter and/or sending an Authorization to Disclose Form which allows the OCRT to share information about your case with your representative. You can access this form from the OCRT website or you can call them for a copy. Please see the Contact and Resources section at the back of this Workbook for information.
You can also ask a friend or family member to attend the hearing simply to support you.
Are There Witnesses Who Can Testify on Your Behalf?
Oral testimony (from you and other witnesses) is also an important source of informa-tion for the Review Tribunal.
At the hearing, the Review Tribunal panel will encourage you to tell your own story and answer questions from panel members and the HRSDC representative.
If there is someone else available who has direct knowledge of your case, you can bring them along as your witness. Tribunals are often influenced by witnesses who know you well (older children, spouses/partners, close friends) and can provide evidence about how your life has changed over time. Since hearings are scheduled to last an hour and a half, the number of witnesses should be limited to one or two at most.
may be more willing to help with your hearing without charging you, if they can do it from their office.
Job placement or vocational counselors are also good potential witnesses because they know which skills are required in the job market.
Of course, you are the best witness because you are in a position to tell the Review Tribunal about your condition and how it prevents you from working.
Tips About Witnesses
• If someone agrees to testify on your behalf, be sure to speak to them before the hearing. You do not want to be surprised. Find out what they can say that will help your case and review with them the issues you want them to respond to. A witness should expect to answer questions from the panel members and the HRSDC rep-resentative. Do not use a witness, unless the person agrees you have a severe and prolonged disability.
• If a potential witness cannot come to your Tribunal Hearing, you can ask them to write a letter to submit as written evidence. Or, you can contact the OCRT and see if the Review Tribunal would be willing to let the person give evidence by telephone on the day of the hearing.
• The OCRT does not pay any costs for witnesses.
The Hearing Date
Hearings are usually scheduled to take place about eight months after you filed your ap-peal. A CSO will contact you to ask if you are ready to proceed and to set a date.
The HRSDC Submission
HRSDC prepares a written submission for the Review Tribunal–the HRSDC Explanation of Decision Under Appeal–explaining why they think you do not qualify for CPP-D. The submission may be in the Hearing File, but it will more likely be provided separately at a later date It includes:
• A summary of the issue under appeal,
• A list of the medical documentation and other information HRSDC relied on to make their decision, and
• HRSDC’s reasons for denying your appeal.
At the review Tribunal, the hrsDC representative will use this submission as the basis for any comments they make. by getting the hrsDC submission in advance, you can consider and plan your response to hrsDC’s position. There should not be any sur-prises for you about what hrsDC says at your Tribunal.
Preparing Your Written Submission
There are several reasons why it is a good idea to prepare a written outline of your argument
• For most people, going to a Review Tribunal hearing is stressful. When you are ner-vous you can “go blank” or forget important things you want to say. With a written statement or outline, you do not have to depend on your memory.
• Even at the best of times, it can be difficult to remember important details. Writ-ing thWrit-ings down will help you to organize the information you want to present and ensure you include all the points you want to make.
• If you write things down in advance, you can improve what you want to say. You can prepare several drafts, until you are satisfied you have included everything you believe is important.
• You may also find it helpful to show your outline to other people for feedback or practice reading it aloud.
Key Issues to Include
Your written submission should address the most important issues of your case. Here are some key topics you should try to include in your submission.
1 A brief autobiography saying where and when you were born, your education, and a summary of your work history. If you have limited formal education, or if you are not fluent in the official language where you live, be sure to note this in your sub-mission
2 Details leading up to your application for CPP disability benefits:
· State when you stopped working and when you think you were unable to work in any job because of your disability.
· If you tried to work but couldn’t, explain how your disability made it impossible.
· If you looked for work but couldn’t find a job, explain how your disability made it impossible to get a job.
· Remember that a lack of jobs in your region does not, on its own, make you eli-gible for CPP-D. You must show that your disability regularly prevents you from pursuing substantially gainful employment.
· If you have been doing some work, explain why this work is not “substantially gainful”, either because your attendance is unpredictable or the amount you make is very low.
· If you have been doing a course or other training since the date you became disabled, explain why your ability to do the training does not mean you are able to pursue substantially gainful employment.
· If your record of earnings shows income for a year you did not work, be pre-pared to explain the earnings. Otherwise, the Tribunal may conclude that you were working.
· If you have received regular Employment Insurance (EI) benefits since the date you became disabled, explain to the Tribunal why you told the EI authority that you were ”ready, willing and able to work”. Perhaps you were overly optimistic or were not then ready to accept you were disabled in the sense required for CPP
3 What your MQP is (see Appendix b for a discussion of MQP). 4 Details about your medical condition(s).
5 Which health professionals you have seen and when.
· If there are conflicting health-related reports, it is best to tackle this issue head on and argue which report should carry more weight. You might consider the following: Which doctor was more thorough? Who spent more time with you? In the case of specialists, are they providing information about their area of spe-cialization, or are they discussing something your family doctor actually knows more about?
6 The treatments you have tried and how effective they have been.
7 If your family doctor has referred you to specialists or for treatments and you have not followed up, why not? Are specialists available? Are you on a wait list? Are treatments available in your area? Can you afford them?
8 Why doing a different kind of a job or being retrained is not a realistic option. 9 If you refer to the documents in your Hearing File, provide the page numbers of the
documents
10 Conclusion: summarize your most important points.
The OCrT expects that written submissions and any other supporting documentation be sent to the OCrT office at least two months in advance of the hearing, so this ma-terial can be distributed to the panel members and the hrsDC representative. If you
cannot send it that far in advance, send it as soon as possible. If you cannot send it in advance at all, bring five copies to the hearing, so you can give everyone a copy of your written submission.
You should be prepared to answer questions about your written submission. If your submission was sent in before the hearing, the Tribunal will have read it in advance. If you hand in your written submission at the hearing, the Tribunal will probably either ask you to read it out or take the time to read it during the hearing.
Legal Research
In addition to oral and written testimony, it is a good idea to look into the case law that may help your case. Using case law in a written submission to the Review Tribunal can be a powerful tool.
Try to find cases that show how previous claimants in a situation similar to yours have succeeded in getting Cpp-D. In your written submission, refer to these cases and
ex-plain how your case is similar.
Review Tribunals will only pay attention to certain types of decisions.
• Previous review Tribunal decisions are not binding on the Review Tribunal and have little, if any, persuasive value.
• While pension Appeals board decisions are not binding on the Review Tribunal, the Review Tribunal is often influenced by them. The Tribunal Book of Authorities contains many PAB decisions. It is a very good idea to refer to any Pension Appeals Board decisions that support your case.
• Federal Court decisions regarding CPP issues are binding on the Review Tribunal.
Again, it is a very good idea to refer to any court decisions that support your case. If you choose to refer to case law in your written submission, always provide a citation for each decision that you use. For Pension Appeals Board decisions, the citation should be formatted in this way: Tasse v. MSD (PAB CP24087, November 27, 2006).
The Tribunal’s CPP Book of Authorities has a link to all the leading CPP cases at the Pen-sion Appeals Board and Federal Court levels. This is a valuable resource put together by the OCRT legal department for use by Tribunal members. Scan the index to see if there are cases that refer to your type of disability or relate to other issues in your appeal. The Pension Appeals Board also publishes all of its decisions, including ones that are not in the Tribunal’s Book of Authorities. See Appendix A for more information about how to access this information. Appendix D lists some decisions of interest.
If you are using cases from the CPP Book of Authorities, you do not have to provide the Review Tribunal with a copy of those cases. However, you should send the Review Tri-bunal a copy of any cases you are relying on that are not in the CPP Book of Authorities.
Case Examples
StellaStella has obtained a number of letters of support from health professionals in support of her case. However, none of these people are available to testify as witnesses at the Review Tribunal hearing. Stella is considering asking her husband, Antonio, to be a wit-ness at the hearing.
Questions
1 Because Stella’s husband is not a health professional, is it worthwhile for her hus-band to testify at her hearing? If so, what sort of issues can he address?
2 Will Antonio be questioned by other people at the hearing?
3 If Stella has information that does not appear supportive of her claim, is she re-quired to submit it to the OCRT?
Answers
1 There are several good reasons for Stella’s husband to testify at her hearing. Al-though he is not able to offer a medical opinion, his observations about changes in his wife’s condition over a period of time, and how her health limitations restrict her day-to-day activities, can be valuable information for the Review Tribunal to hear. Antonio can also verify what his wife says about her disability.
2 Antonio or any other witness can be questioned by the panel members or by the HRSDC representative at the hearing. Each witness must be prepared to clarify or expand upon anything he or she may say at the hearing.
3 Stella is not obliged to submit anything that is not supportive of her case. How-ever, it is not unusual for differing opinions about certain aspects of her case to be contained in the Hearing File. Stella can anticipate there might be some difficult questions that need to be answered. Prior to the hearing, Stella needs to be aware of both the positive and negative elements of her case. If there are issues that are difficult to explain, she should carefully consider how to approach these issues and may wish to seek advice.
Joyce
Joyce has successfully obtained a letter from her doctor stating she has never been able to work more than 10 hours per week since her MQP, as a direct result of her physical limitations. She is now wondering if there is any case law that will help her with the ar-gument that her medical condition prevents her from pursuing any substantially gainful occupation.
Question
1 After reviewing the case law examples in Appendix D, is there a case that Joyce can refer to that supports her claim that she was unable to engage in substantially gain-ful employment after her MQP?
Answer
1 In Tasse v. MSD (PAB CP24087, November 27, 2006), the Pension Appeal Board examined the issue of what constitutes gainful employment and entitlement to CPP disability benefits. There are a number of parallels between Ms. Tasse’s case and Joyce’s. For example, both Joyce and Ms. Tasse were incapable of working full-time as a direct result of disability (this was confirmed by the doctors involved) and their employment activity was not regular. Furthermore, Ms. Tasse’s earnings of approxi-mately $500 per month, which are similar to Joyce’s earnings, were recognized as being below the poverty line set by Statistics Canada and thus not “substantially gainful”.
Checklist for Deciding How to Present Your Case
Make sure you have done the following:
• Made a note of the time, date and location of your Review Tribunal hearing,
• Decided whether you will ask a witness to testify at your hearing,
• Looked into any case law that supports your argument that you qualify for CPP-D,
• Prepared a written submission (this is highly recommended), and
• Submitted your written submission and supporting documentation to the OCRT–or as much of it as possible–well in advance of the hearing.
Making Your Presentation
Review Tribunal hearings are usually held in hotel meeting rooms in your community. Allow extra time to arrive at the hearing early. Do not arrive late.
Bring five copies of any documentation you have not previously sent to the OCRT. As noted earlier, it is important to make every effort to submit written submissions and letters of support well in advance of the hearing. Although the Review Tribunal can ac-cept new material, if this material is too extensive, the Chair may adjourn the hearing or refuse to accept it.
A Step-by-Step Look
• When the hearing is about to start, a panel member will invite you and anyone you have brought with you into the meeting room. A representative of HRSDC will usu-ally also attend to explain why they have denied your request for CPP.
• The Chair will welcome you and ask everyone to introduce themselves. The Tribunal Chair will then ask you and any witnesses to affirm they will tell the truth.
• The Chair will ask if everyone has a complete Hearing File, including any information that was sent to the OCRT after the Hearing File was compiled. You will be asked if there is any last information you want the panel to consider. This is your last oppor-tunity to give the panel and the HRSDC representative any new information or writ-ten submissions you have not already provided. Usually, the panel will take some time to read the new material.
• The Chair will ask both parties if they agree on the Minimum Qualifying Period (MQP). If you disagree with the MQP that HRSDC has given, this is your chance to say why (see Appendix b for more information on MQP).
• The Chair will ask you to present your case first.
• If you have asked a witness to attend, you may ask that your witness give his or her evidence before you give yours. If you go first, your witness may be asked to leave the room while you give your evidence.
Presenting Your Case
Now, it is time to present your written submission, if you have one. If you sent your sub-mission to the OCRT in advance, you probably don’t need to read it all aloud, but you may want to highlight some of the key points and talk about any new material you have given the panel since you sent in the written submission.
If you didn’t provide the written submission to the OCRT in advance, then it is usually a good idea to read the submission out loud so the Tribunal can hear your arguments. You may also tell the Tribunal your key points or you may simply tell the panel that you are ready to answer questions.
Whether you have a written submission or not, be prepared to answer questions from any or all the panel members and the hrsDC representative. The questions can
be about anything in the Hearing File, written submissions, supporting documentation or any of the oral testimony. An example of a typical question from a panel member is to ask you what an average day is like.
After the panel and the HRSDC representative have asked you questions, it will be the representative’s turn to explain why HRSDC thinks you do not meet the CPP-D eligibility criteria. The representative will base his or her presentation on the HRSDC Explanation of Decision Under Appeal document. Once the representative has finished, the panel will ask them questions. You will also be given the opportunity to ask questions. After all the Tribunal has heard your evidence and arguments, and HRSDC’s evidence and arguments, and has asked all its questions, you will have a chance to make closing remarks. Although it is not necessary to say anything further, we recommend that you take a couple of minutes to summarize the key points of your case.
in your closing remarks, it is helpful if you can summarize why you disagree with hrsDC’s reason for saying you are not eligible for Cpp-D. For example, if HRSDC’s
de-nial letter said even though you have a disability you could still do another type of work, you can conclude by reminding the Panel of all the evidence you presented that shows you cannot work in any capacity.
Tips to Help You at the Review Tribunal
• Be yourself. The Review Tribunal hearing is your opportunity to tell your story in your own words. The proceedings are intended to be as informal as possible. It is important to be polite, but you don’t need to dress or act formally.
• It is normal to feel nervous. Take deep breaths. Ask for a break if you need one.
• If you are not clear about how things work, ask questions.
• Panel members cannot give you medical or legal advice about your case. They are there to hear all the facts of your case and make a decision based on the CPP legis-lation.
• Stay focused on the reason you are there: to explain why you think you meet the eligibility criteria for CPP-D. Remember, the panel cannot allow your appeal on com-passionate grounds or on the basis of financial need. It is your job to explain why you think the facts of your case satisfy all the eligibility requirements.
• The HRSDC representative is entitled to see and comment on any new information you give to the panel members. Be sure to give him or her a copy of anything you are giving to the panel members.
• Be prepared to answer some difficult questions. Panel members may zero in on the weak parts of your case. Be truthful and straightforward in your answers. It is better to answer “I don’t know” than to guess at an answer you are not sure about.
• Be respectful to everyone at the hearing. You may get frustrated or angry with some of the questions. Try to stay calm. If you disagree with something that is said, try not to interrupt when someone is talking. Write down what you want to say and say it when you are given the chance to respond. Always follow the directions given by the Chair.
• It is impossible to know what panel members are thinking. Do not make assump-tions, other than assuming that the panel has an open mind.
Case Examples
Stella’s submission to the Review Tribunal Introduction
My name is Stella C. I am a 56-year-old woman who was born and raised in Vancouver, BC. I have been married for 28 years and have two adult children. My daughter helped me write this submission. I will be asking my husband, Antonio, to testify at the hearing.
My Education and Work History
I have a Grade 10 education and it was never easy for me at school. I have wanted to be a nurse for as long as I can remember. It took me a while to complete the LPN course– I was working in a boarding home as a nurse’s aide and taking night courses. I finally got my LPN qualification when I was 32. I have worked in Extended Care facilities since then, until I had to stop due my health problems. My back condition started affecting my work about five years ago. I was taking sick days due to recurring pain. I asked to be assigned to lighter duties in 2009. This happened, but I struggled to work full time for about a year. I left my job in June 2010 due to poor health and applied for medical EI benefits.
My Contribution Requirements (Minimum Qualifying Period)
According to HRSDC, I will last meet the Minimum Qualifying Period in December 2013. I believe that this MQP calculation is correct.
My Medical Conditions
My back problems started when I fell off a ladder in 2004. After the fall, I aggravated my back condition at work when I tried to lift heavy patients. At first, the back pain was only bad some of the time, but by 2009 I was experiencing pain and restricted move-ment on a daily basis. My family doctor sent me for X-rays and I was diagnosed with degenerative disc disease and osteoarthritis of the neck and lumber spine [page refer-ence]. In 2010, the rheumatologist, Dr White, agreed with the diagnosis and has listed my current physical restrictions [page reference]. I am not able to raise my arms with-out severe pain. I cannot bend and lift. I experience pain when standing and sitting for more than a few minutes.
several weeks, I often don’t get out of bed in the morning or leave the house. I become very isolated. I don’t think I could have managed without the help of my husband who makes sure I am eating and taking my medication.
Health Professionals I have Seen
• Dr. Brown has been my family doctor since 1997. I see her about once every three months.
• Dr. White, rheumatologist. One visit in September 2010.
• Dr. Black, psychiatrist. My first visit was in April 2011. I see her once every two months.
• Jack Green, registered psychologist. I have been seeing him once a month, since September 2011.
• Susan Grey, physiotherapist. I first saw her for three visits in 2009. I went back to see her for two visits in the fall of 2010.
Treatments I have Tried
Dr. Brown has been giving me prescription analgesics (Tylenol #3) and anti-inflammato-ries (Naproxin) since 2008. My dosages have gradually increased. I usually take between four and six Tylenol #3 tablets per day, although on a bad day I might take as many as eight. I always take two 500mg Naproxin tablets per day.
I find that the medication does help relieve the acute pain, but the pain never goes away and I have to limit the medication I take sometimes due to unpleasant side af-fects. My chronic pain interferes with my sleep and daily activities, and no treatment has resolved the pain and discomfort.
I have tried going to physiotherapy on two occasions. I went back the second time because Dr. White suggested I give it another try. My experience is that physiotherapy has tended to aggravate my symptoms so I stopped going. I have been doing limited exercises, however, by following a home program that was recommended by my phys-iotherapist.
Dr. Brown first prescribed me anti-depressants (Prozac) in 2009. Dr. Black changed my medication to Effexor last summer. It took me a while to adjust to the new medication and I have noticed some improvement in my mood, but I am still experiencing lengthy episodes of depression.
On the recommendation of Dr. Black, I started seeing Jack Green for counseling. I have been going for monthly one-hour counseling sessions since September 2011.
Why My Disability is Prolonged
I submit that both my physical and mental conditions are long term and of indefinite duration. My back problem has existed for several years and, in June 2010, it finally got so serious I had to stop working. My chronic pain and restricted movement from my back problem have been getting worse over time. Dr. White wrote that I have chronic conditions: specifically degenerative disc disease and osteoarthritis [page reference]. Al-though treatment has provided some relief of my symptoms, Dr. Brown in her most re-cent letter has confirmed that the improvement she anticipated has not in fact occurred [page reference]. As far as my mental health is concerned, I was diagnosed with major depression in April 2011, but I had debilitating symptoms prior to this date: Dr. Brown wrote that I had recurring depression on my CPP-D application [page reference] and I have been taking anti-depressants since 2009. Dr. Black has written that my depression has been slow to respond to treatment and can be triggered by my chronic pain. Dr. Black does not know how long my severe depression will last and my counsellor, Jack Green, has also expressed the same concern [see letter].
Why My Disability is Severe
My physical and mental impairments are severe enough to prevent me from pursuing any kind of work. I have not been able to work at all since June 2010. My back problem and chronic pain stop me from doing any physical work. I have also discovered that my physical limitations make it difficult for me to sustain even sedentary work activities. I would also like to point out that in the last two years, my depression has become a major barrier to securing any kind of employment. When I have episodes of severe de-pression I lack motivation, I cannot concentrate and I do not want to be around people. These are not the attributes of a reliable employee. Dr. Brown has confirmed that I am unable to work at any job due to my physical and mental conditions: she has also writ-ten that my physical symptoms can exacerbate my mental symptoms and vice-versa. [page reference].
Why Retraining is Not an Option
It has taken me a long time to come to terms with my disability. When I first left my nursing job, I was optimistic that my health would improve so I could do some other kind of work. I enrolled in a training program as I was hopeful that I could learn to use a computer so I could do some kind of office work. After a couple of weeks, the pain of being seated for over an hour and using a computer was too much for me to handle.
