Canada Pension Plan (CPP) – Disability Benefits
Note: Portions of the following may need to be updated due to changes in legislation
Section 42(2)(a) of the Canada Pension Act says in part:
When person deemed disabled
(2) For the purposes of this Act,
(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,
(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and
(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and
(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
Each one of these words have their own meaning in Canada Pension Plan disability benefit claims.
The disability has to be severe – as defined as the claimant must be “incapable regularly of pursuing any substantially gainful occupation”. Substantially gainful occupation has been defined by the Canada Pension Plan as being able to earn an amount equivalent to the the maximum monthly CPP retirement pension.
As of January 2012, the maximum monthly CPP retirement pension is $986.67.
The Canada Pension Plan pays disability benefits to contributors who become disabled and are no longer able to work. Section 42 of the Canada Pension Plan Act defines a person as disabled:
- “only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and …
- a disability is severe only if by reason thereof the person … is incapable of pursuing any substantially gainful occupation, and
- a disability is prolonged only if it is determined in a prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death.”
Bayda Disability Law Firm
serving Alberta & Saskatchewan
Calgary Canada Pension Plan (CPP) Lawyer
Suite #9, 1915 – 32 Avenue NE
Calgary, Alberta, T2E 7C8
Toll free: 1-855-670-0070
Minimum Qualifying Period
- There are minimum contribution requirements which must be met in applying for disability benefits.
- The contribution test must be met at the time the disability commenced and not at the time of application.
- The general rule for persons whose disability commenced after January 1, 1998 is that contributions are required in four of the last six calendar years on earnings that are at least 10 % of the year’s maximum pensionable earnings ($36,900 in 1998). (For persons whose disability commenced prior to the end of 1997, contributions are required for either two of the last three, or five of the last ten years at the time of commencement of the disability.)
- Where the application for disability benefits is not made immediately after becoming disabled, section 42 (2) (b) of the Act provides that a person can be found disabled up to a maximum of 15 months prior to the date of the application. Arrears of benefits will therefore only be payable for a maximum of 12 months (15 months of arrears less a 3 month waiting period.)
- Therefore, even if a contributor has not been working for some period of time, as long as the disability can be shown to have taken place within the qualifying period, the claimant can be approved for benefits. However, arrears of benefits will only be awarded for up to one year prior to the date of application.
Proof of Disability
- One of the largest stumbling blocks in proving disability is proving that the disability is severe.
- The Act defines “severe” as a mental or physical condition that prevents an individual from regularly pursuing any substantially gainful occupation.
- Persons who can still carry on sedentary types of occupation (sit down jobs) are generally not considered disabled within the meaning of the legislation.
- Proof will have to be provided that the claimant cannot even do sedentary types of occupations.
- The best proof of this is evidence from a psychiatrist or psychologist which shows a mental condition which prevents the applicant from pursuing this type of occupation. Issues with memory, concentration and severe pain can prevent a person from being able to do most jobs.
- CPP will often find that persons with purely physical problems will still be able to carry on sedentary type occupations. If the claimant can do sedentary type occupations (even if retraining is required), he or she is not disabled within the meaning of the Canada Pension Plan.
- “Substantially gainful employment” is not defined in the Act. However, the Pension Appeals Board has stated that the income earned in the past is not relevant in determining what is substantially gainful. A doctor who may have earned in excess of $100,000.00 per annum prior to his/her disability is considered able to pursue substantially gainful employment is s/he can still earn $15,000.00 per annum working part-time. Past earning history is relevant not to the determination of substantially gainful, but rather to ascertain whether the applicant possesses any transferrable work skills that would enable him or her to earn some income.
- The Plan also looks at whether the disability is medically based or if it is the applicant’s personal lifestyle choice. If the doctor referred to earlier becomes unable to practice medicine but can still work at a 7-11 convenience store, they will not be considered disabled as they can still pursue “substantially gainful” employment.
- Good solid medical evidence goes a long way to proving disability. Your family doctor’s report and / or specialists must confirm or corroborate your statements that you cannot work. The doctor must state you cannot do “any” type of work. If the doctor states that you cannot do “your old line of work” – that is not enough. If the doctor states you cannot do heavy work – that is not enough. The doctor must state that you cannot do any type of work – and explain why not.
- At the appeal level attempts to look for work or return to the workforce are important factors. Failed attempts to return to some kind of job help show that the claimant cannot work due to his disability.
- Often times applicants say that there is no available job for them in the area where they live. That is a socio-economic factor and cannot be taken into account. If the applicant could work in a large city, then they are not disabled.
Another relevant factor is that the disability must be “prolonged.”
- Prolonged has been interpreted to mean that the disability must be both of long, continued and of indefinite duration. Prolonged does not refer to past duration, only to the future. The usual test is whether the disability is of indefinite duration. If the disability will only continue for a definite duration (regardless of the length of time, even if greater than one year) the claimant is not disabled. For example if a person has a heart attack for which the prognosis is a return to work within 6 months the disability is not prolonged.
Remember that expert reports from either medical doctors or psychologists providing “objective” evidence of the disability, although not critical to the case, will go a long way toward proving the claimant’s disability.
- If the claimant is not satisfied with the initial response of the Canada Pension Plan, there are several appeal procedures in place. The first is to ask for a reconsideration of the decision. The request for reconsideration must be made within 90 days of the date the claimant receives the letter of denial. A request for reconsideration is very rarely successful and is simply a review of the decision to deny benefits based on the existing paperwork and medical reports. The request for reconsideration is much more effective if new medical evidence can be produced that helps to substantiate the disability. The most common reasons for denial of benefits are that the disability is nor severe or that the disability is not prolonged.
- The next level of appeal is a Review Tribunal. The request for an appeal to the Review Tribunal must be made within 90 days of the last denial letter. The appeal is as of right and the letter requesting a Review Tribunal can be as simple as “I appeal.” The Review Tribunal is a panel of 3 individuals that meet at a local hotel to have a quasi hearing as to the issues in dispute. The panel is constituted of one member of the legal profession (usually a lawyer), a member of the medical profession (usually a registered nurse or physician) and a member of the public at large. The hearing is designed to be very informal and is not even based on sworn testimony. It is closed to the public and only parties to the appeal, their witnesses and their advisers are allowed to attend. The claimant is advised of the date of the review (usually approximately one month in advance.) At the review, the usual rules of evidence do not apply as it is an administrative proceeding. The claimant can be represented by a lawyer although that is not necessary. The panel usually asks questions and tries to come to a determination of whether the claimant is disabled. The hearing usually takes one to two hours. The Minister has a representative who is a non-lawyer spokesperson an who takes the other side in an attempt to show the claimant is not disabled. After the review, the panel makes a decision that gets mailed out to the claimant in 10 to 12 week’s time.
- If the decision is in the claimant’s favour, the minister has 90 days to decide whether or not to appeal. Until that decision is made, no funds will be advanced to the claimant. If the minister decides to appeal, he has to make an application for Leave to Appeal to the Pension Appeals Board. The application is made ex parte on paperwork and asks for permission to appeal to the Pension Appeals Board.
- If the decision is against the claimant, the claimant must make an application for leave to appeal to the Pension Appeals Board. The application is made ex parte on paperwork only (no oral representations are allowed) and should, if possible, provide updated medical evidence. It is also helpful if the submission addresses the issues raised in the denial of benefits by the Review Tribunal. If the application is granted, a Pension Appeals Board hearing is scheduled. If the application is denied, the decision of the Review Tribunal is final and binding. As is the case with all administrative tribunals, administrative law principles would apply in cases of judicial review.
- The test for leave to appeal is whether the appeal has an arguable issue. See the case of KERTH V. CANADA It is a very important step, as denial of leave will result in no further appeal procedures. Leave to appeal is not granted as a matter of course and should not be take lightly as if leave to appeal is denied there is no further appeal process. For this reason, it is recommended that new evidence, such as medical reports, be obtained at this point in order to pique the interest of the Pension Appeals Board to the extent that they will grant leave.
- If leave to appeal is granted the next step is a trial de novo before the Pension Appeals Board. Trial de novo means the appeals court holds a trial as if no prior trial had been held.
This board is usually constituted with three federal court judges. The hearings are held for approximately one week as the need arises in one of the court houses in Regina or Saskatchewan. The hearings are currently being held slightly more than one year apart. The hearings are open to the public and are the final level of appeal.
- The trial de novo is more formal that the Review Tribunal hearing. However, because they are administrative hearings, they are more informal than regular court and the rules of evidence are relaxed. An average case usually takes 2 hours and the Pension Appeals Board tries to schedule two or three cases per day. The case for the disabled claimant is usually made up of testimony from the claimant with the filing of supporting medical reports. Expert witnesses can be called although they are not strictly necessary. The case for the minister consists of cross examination of the applicants witnesses and the testimony of a medical doctor who is a private doctor on contract with the minister to testify on behalf of the minister. The doctor has usually never seen the applicant but testifies as to his review of the medical file assembled by the minister. S/he usually cannot say the applicant is, or is not, disabled and confines him/herself to reporting that there is no “objecitve” medical evidence substantiating the disability claimed. The decision is reserved and written reasons are provided in 8 to 12 weeks by registered mail. Some of these decisions are reported in full by the Commerce Clearing House (CCH) Canadian Employment Benefits and Pension Guide Reports. The decisions are non-binding on the Pension Appeals Board and the principle of stare decisis does not apply to decisions of the Pension Appeals Board, which is a statutory administrative tribunal. However, in practise, although the Review Tribunals are not bound by the Pension Appeals Board, they do pay some deference to previous decisions of the Pension Appeals Board.
- The decision of the Pension Appeals Board is final and there are no more avenues of appeal.
- If you are a full-time student between the ages of 18 and 25 and your parent or guardian is receiving a Canada Pension Plan (CPP) disability benefit or has died, you may be eligible for a monthly payment from the CPP. You may be eligible for a monthly payment if the person who raised you was a CPP contributor and has died or is receiving a CPP disability benefit – even if that person was not legally your parent or guardian. For simplicity, the words “parent” and “child” will be used in this document to cover all such relationships. Once you turn 25 you are no longer eligible for these benefits. See http://www.servicecanada.gc.ca/eng/isp/pub/factsheets/studben.shtml
- What is the test Canada Pension Plan uses in determining whether someone qualifies for benefits? The Canada Pension Plan uses a twofold test. First, the individual must be incapable of regularly pursuing substantially gainful employment. Secondly, the disability must be severe and prolonged.
Severe and prolonged is defined in terms of the future, not past. An injury is severe and prolonged if it will last for an indeterminate period of time. Canada Pension Plan’s interpretation of this definition is if the incapacity will last a finite or specified period of time, i.e. until after major surgery, the injury is not prolonged.
“Incapable of regularly pursuing substantially gainful employment” means incapable of performing any type of occupation which would result in compensation. If an individual is capable of earning income equivalent to minimum wage, he or she will still be able to pursue substantially gainful employment. This area is grey and each case must be analyzed on its own fact scenario.
- What does a lawyer usually do once being retained to pursue a Canada Pension Plan disability appeal? The first thing that we do is consider relevant time periods. An appeal for a review tribunal must be filed within 90 days of the final denial. If a Review Tribunal is denied, the application for leave must be filed within 90 days of the communication of the Review Tribunal decision. The next step is to obtain copies of the complete CPP file. In cases of an appeal, or initial application, once the lawyer has considered the time limitations, the next stage is to gather all relevant medical evidence. The lawyer usually writes all medical professionals that have seen the client since the commencement of the injury or disability being considered and will requisition copies of all medical documentation in existence. These can be quite voluminous but must be gathered. Once that is done, the lawyer may or may not requisition further medical reports and/or a vocational consultant report. Often, a written brief will be filed for the Review Tribunal and for the Pension Appeals Board hearing.
- What if I cannot afford a lawyer?
We are prepared to take disability cases on a percentage fee basis. The percentage-fee is based on a percentage of accumulated arrears up to the date of the first payment. No fees are charged on future benefits payable after the date of the receipt of the first cheque from either CPP or the disability insurance company. If we are unsuccessful, there is no charge for legal fees. In addition to legal fees, there is the issue of disbursements. These are the out-of-pocket expenses incurred by the lawyer in pursuing the claim and will include court filing fees, cost of medical reports and documentation, photocopies, postage and cost of having doctors testify if required. These expenses must be reimbursed to the law firm regardless of whether the claim is successful.
- What kind of report do I need from my physician to qualify for disability benefits? A simple statement from your doctor that you are disabled is not sufficient. The doctor, besides making that statement must provide the basis upon which his opinion is founded. The physician should provide a medical report covering the following items:
- Does the patient have residual capacity to sustain the postural requirements of sitting and the strength requirements of standing and walking during an eight-hour period found at most competitive jobs?
- Is there any impairment related to repetitive use of hands, arms, feet or legs as a result of the patient’s condition based upon medical finding?
What is the physician’s opinion as to the patient’s limitations, if any, in lifting, based upon medical findings?
- What is the physician’s opinion based upon medical findings as to whether the patient’s condition can be expected to limit attentiveness, alertness, or concentration in a work-like setting as compared to similar, but unimpaired individuals?
- What is the physician’s opinion as to how you would react to the physical and mental demands of a job schedule or job stress?
- What is the physician’s opinion, based upon medical findings, as to whether the patient is currently capable of performing the limited physical demands and mental demands of an unskilled sedentary job eight hours a day, five days a week?
- Will the additional stress of work detrimentally affect the patient’s long term health?
The report must provide information that will help the Canada Pension Plan determine the existence, severity and duration of the disability. It should include a thorough medical history, all pertinent clinical and laboratory findings, copies of all laboratory results, the results of any mental status examinations including any psychometric testing. Longitudinal clinical records and detailed historical notes discussing the source of the disorder including treatment and response are also very useful. Also, any information the physician is able to provide contrasting the patient=s medical condition and functional capabilities since the onset of the disability with that of his or her prior status would be of assistance.
Statements merely recounting the symptoms of the applicant or only providing a diagnosis are not sufficient. A one-line statement stating that the patient is totally disabled will not be accepted or given any weight.
- What if Canada Pension Plan states that it will not provide disability benefits in the absence of objective laboratory tests? The case law in most of Canada provides that on appeal the court system will award disability benefits if the court believes the individual is in fact disabled and is not exaggerating his condition in the hope of obtaining benefits. For this reason, even where there are no objective results, a lawyer can still successfully obtain disability benefits on behalf of a client. The key in such cases will be the client=s credibility. If a Review Tribunal or Pension Appeal Board is convinced that the individual is in fact disabled, they will usually ultimately receive benefits even if an accurate Alabel@ cannot be placed on the illness.
- Does persistence pay off? A high percentage of people are initially denied their disability benefits. Canada Pension Plan has the advantage that if it puts up enough roadblocks, most people will eventually throw in the towel rather than retaining a lawyer to pursue their case through all available appeal procedures. People who are disabled often do not have the strength or energy to pursue a claim on their own. Since most people do give up, Canada Pension Plan sometimes wins even where people are legitimately disabled.
- What is a realistic estimate of how long it takes to obtain disability benefits? The claim process can take from several weeks to several years depending upon how far through the appeal process matters must proceed. There is no simple answer. However, in most cases, if Canada Pension Plan digs in its heels and the file goes all the way to the Pension Appeals Board for a hearing it can take several years. Benefits can be awarded at any stage prior to the final level of appeal if enough evidence is obtained.
- If I answer the initial disability application questions incorrectly, will it damage my case? Sometimes. The questions are not that complicated. However, in our experience, people do not answer the questions as completely as possible. You must not be modest about your impairment and disability, but not exaggerate them either. In a good percentage of cases, individuals are not aware of all the evidence in their favour and sometimes minimize certain aspects such as mental concentration and cognitive problems. If you are having memory and concentration problems, it is harder for the Canada Pension Plan to state that you can do sedentary-type employment.
- Will psychological testing help my case? Sometimes it can be very helpful in determining if there are any organic, cognitive or psychological problems of the individual. Tests can be time consuming and expensive. Therefore, this decision is made on an individual basis with the client. Statistics show, however, that a great many cases are granted benefits as a result of the psychological issues of the client.
- Can Canada Pension Plan discriminate on the basis of mental as opposed to physical disability? The Supreme Court of Canada in a decision in 1993 Battleford v. Gibbs, has decided that it is improper for an insurance company to discriminate on the basis of mental versus physical handicap or impairment. This protection is found in the Canadian Charter of Rights and Freedoms. The answer is therefore that, “No, Canada Pension Plan is not entitled to discriminate between mental and physical disabilities.”Some further elaboration on this answer is required. Although they are not able to discriminate, the medical system does discriminate on that basis. Psychologists are not paid for through any type of government funding. It is therefore much more difficult to diagnose and prove psychological dysfunction as opposed to physical dysfunction. Also, persons suffering from psychological problems are sometimes not aware of the extent of their problems or the fact that they may be the real cause of the inability to work. For that reason, legal representation can be of great assistance in bringing objectivity to the process and getting further referrals or medical consultations where appropriate.
- What is the rule with respect to the necessary contributions to be made to the Canada Pension Plan in order to qualify for benefits? For disabilities occurring prior to January 1, 1998 you must have worked for two of the last three years or five of the last ten years. For disabilities occurring after January 1, 1998 you must have worked four of the last six years.There is a child-rearing dropout provision. If you had children born after January 1, 1958 and received either a child tax credit or family allowance, you may qualify for a child-rearing dropout provision. This means that during that period of time, if you were not working, it will not qualify as part of two of the last three years or five of the last ten years calculation.There is also a provision that if you currently do not meet the necessary contributions, but have been continuously disabled from a time period during which you did qualify, you will still qualify upon proof that you were disabled in the interim period. This in effect holds your ability to apply in abeyance during the time of your disability. Note that the maximum arrears Canada Pension Plan will pay is for a period of approximately twelve months prior to the date of application. If you have been disabled for the last five years, you will still only get arrears of up to twelve months prior to the date of your application.
- Are Fibromyalgia or Chronic Fatigue Syndrome accepted as valid illnesses for disability? The diagnosis of Chronic Fatigue Syndrome does not automatically qualify you for Canada Pension Plan disability benefits. Some people may qualify, and some people may not, depending on the seriousness and degree of severity of the illness. However, there is no general rule that you cannot be totally disabled with these diseases. In fact, an actual diagnosis is not required so long as you can convince the legal system that you are in fact disabled from employment.
- I have been denied benefits on the grounds that I am still able to do sedentary work. Can the Canada Pension Plan do this? The provisions in the Canada Pension Plan provide that you are only entitled to benefits if you are unable to regularly pursuing any substantially gainful employment. The easiest way for Canada Pension Plan to turn you down is to simply state that you can do sedentary or seated-type work. It is not enough, however, just to simply state that, and each case must be reviewed on the facts. If an individual can do sedentary-type work, then he or she will not qualify for benefits. On many occasions, however, even though the Canada Pension Plan has stated it is not convinced an individual cannot do sedentary-type work, it can often be proven that sedentary-type work is out of the question. In that case, an individual will still qualify for benefits.
- What is the difference between the Canada Pension Plan definition of disability and that of private insurance companies? The Canada Pension Plan definition of disability has been described above. Private disability plans, however, usually have a two-step process. There is a period of short-term disability that is paid if an individual is unable to perform the regular duties of his usual employment. This is usually paid for a short-term basis of one to three years. Subsequent to this, to continue to receive benefits, one must usually prove an inability to perform any reasonable occupation given his or her education, training and experience. This test is often less stringent than the Canada Pension Plan test. It means that an individual must be disqualified from being able to perform any reasonable occupations. These can include occupations that the person can be trained within a reasonable amount of time.
- Can I get Canada Pension Plan to retrain me? In certain insurance policies, this is an option. With respect to Canada Pension Plan claims, however, there is no obligation on the Plan to retrain a claimant. Canada Pension Plan usually looks at requests for retraining as evidence that the claimant is not disabled. If the claimant feels that he or she can be retrained, then that person is not considered totally disabled. He or she can work but is just not trained in an area for which there are available jobs. Job availability is not a concern of the Plan and benefits will be denied.
- Canada Pension Plan states I am able to do sedentary-type work. I disagree and say that there are not such jobs available where I live. Is this a good argument? No, this is a poor argument. By making it, you are implying that the reason you are not working is that you cannot find a job. Canada Pension Plan does not guarantee your ability to find work for which you are suited. If you can do the work, that is far as Canada Pension Plan has to go. It is not responsible if there is an economic downturn in the locale where you reside and those particular types of jobs are not available.
- What is a disability tax credit for income tax purposes and does the test for disability vary from that used by the Canada Pension Plan? Yes, there is a disability tax credit. It is approximately $4,000 and is a non-refundable tax credit which reduces the tax you owe. The test is different, however, then the Canada Pension Plan, and is, in fact, more stringent.
- The insurance company thinks that I am malingering. How can I prove that I am not? There is a psychological test called the MMPI. It can be useful in evaluating the possible presence of malingering–conscious efforts to exaggerate symptomology for financial gain. The MMPI is usually computer-scored and computer analyzed. The results are then compared to the results from other individuals and analysis can be obtained. There is also a test called a REY test when conscious efforts to deceive are suspected. A thorough and detailed life history is also essential to assess the issue of possible malingering or significant exaggeration. There is also a “Beck Depression Inventory” which is frequently employed in an effort to assess the role depression plays in chronic pain. There is also the Millon Clinical Inventory which is useful as an adjunct to understand personality organization and coping styles.
- Are Canada Pension Plan disability benefits taxable? Yes. They are taxable and all benefits must be included in taxable income. There is no normal withholding of income tax at the source. For that reason, you must budget for the amount of tax you will ultimately owe, or you can contact the Canada Pension Plan Office to make regular deductions on account of income tax. With respect to the issue of arrears of Canada Pension Plan benefits paid by way of a lump sum, the individual filing the tax return has the option of declaring them in the year they should normally have been paid or the year the lump sum was received, whichever is more favourable. We believe that the legal fees incurred in enforcing your rights to collect Canada Pension Plan benefits are tax-deductible. However, you should contact your tax advisor in this regard. Private disability benefits are usually received on a tax-free basis where the premiums for the insurance were paid on an after-tax basis. If the premiums were paid on a before-tax basis, the benefits are usually taxable.
- What types of questions can I expect to have to answer either before a Canada Pension Plan Review Tribunal or before a Pension Appeals Board hearing? The questions that will be asked are usually quite similar. Aside from questions concerning the specific illness or disability, there will be general questions touching on the following subjects:
- Your previous work history.
- Your education.
- Any training you have received.
- Do you have problems sleeping?
- How are you currently spending your time?
- What is a typical day for you consist of?
- Who does the work around the house, including shopping, cleaning cooking and driving?
- What efforts have you made at rehabilitation?
- When do you anticipate to return to work, etc.?
- Is it a good idea to keep a daily diary in trying to prove disability? Yes, a daily diary is usually very helpful with respect to helping prove the extent of the disability. We will, if we feel it appropriate, prepare a diary and provide it to our clients for them to keep a record of how they feel on a day-to-day basis. This diary can then be useful both in a presentation to CPP as well as for use by a physician.
- Should I keep a diary of my attendance with physicians? Yes, when dealing with people or organizations, such as Employment Insurance, doctors, or Canada Pension Plan directly, you should write in your notepad the person=s name, phone number and a summary of what has happened so that you will not forget later when you are asked about it. It is especially important to take notes on their medications. People often do not remember the various drugs they have taken, what effects they had, the strength of the drug taken, and whether the drug helped. You can get a computerized list of all the drugs you have been prescribed over the previous two years from your pharmacist which will definitely assist us in investigating your claim.
- I am in my late 30’s and find my insurance company giving me a hard time. Why would they do that? Both insurance companies and Canada Pension Plan are concerned about putting young persons on disability benefits because of the length of time they will probably have to pay benefits. If you are currently 40 years old, the insurance company may have to pay benefits for another 25 years. That could amount to $2,000 per month, or $24,000 per year, or $600,000 over the next 25 years. The younger you are, therefore, the harder the insurance company fights to keep from paying disability benefits.
- What can I do to help you with my case? First, contact our office as soon as you have been denied benefits. The earlier we are involved in the process often the sooner we can troubleshoot and ensure the claim is successful. To assist us, you should prepare a specific history letter. This letter should contain your medical history of all the symptoms you have. Points to include are:
- Doctors’ diagnoses.
- Any specialists seen.
- Major tests were done or which will be done.
- The date your illness started
- Describe a typical day/night.
- Describe the medications taken and the medications you are currently using.
- Describe what happens when you try to do various mental or physical activities also including how many hours or days you may need to recover.
- Describe your main disabilities, their effects, their severity, their hindrance and how you deal with them.
- Detail where you have lived
- Detail your family situation.
- Detail your financial problems.
- Detail your housing situation.
- Detail your job and education history.
- Detail your recreational activities and how they have changed since the illness.
- Detail what you are trying to do to get better.
- State that the illness is severe and prolonged in your opinion.
- State that you cannot do any job.
If possible, prepare a general letter which we can discuss with your doctor, approximately one page in length which would describe your symptoms, i.e. you cannot work because of poor concentration, cognitive disorder, extreme fatigue, unable to take public transportation, etc. Create the letter with your personal details and provide it to us.
- I have been given an insurance form for my doctor to complete. Even though I have hired a lawyer, can I just take the form to the doctor? No. You should discuss the matter with your lawyer first. Usually, the lawyer will send the form to the doctor for completion. When the form is returned to the lawyer, the lawyer can then assess that the form has been filled in properly. In certain circumstances, the lawyer may attend the doctor’s office to discuss the claim prior to the form being completed. Doctors are not always cognizant of the answers that CPP or the insurance company requires in order to provide benefits. There have been many situations where a doctor finds that an individual is disabled but does not state that the individual is disabled from all employment. This can then be used against the individual. It is best that the lawyer handles all forms directly.
- I am seeing a new doctor. Can I bring someone with me on my first visit? When you are seeing a new doctor, take your spouse or someone who is familiar with your symptoms to the appointment. This person can help with explanations as well as verify the symptoms. Do not ask permission for this person to come with you; simply bring them. If a doctor questions you, you can explain that you have a poor memory or that having this person would improve the session. Please bring your history letter to the first appointment with the new doctor.
- Am I entitled to a copy of my medical file from my doctor? The Supreme Court of Canada has ruled you are allowed to see photocopies of the contents of your medical file to ensure no inaccuracies are present and to have these reports explained to you. The Canadian Medical Association policy summary states that “a patient has the right to examine the record and to copy all the information contained in it, including consultation and other reports obtained from other physicians.”
- Can Canada Pension Plan require that I see its doctor? Legally, you must see CPP’s independent doctor for an assessment with regard to your claim. You can, however, request or challenge the doctor that it chooses. You should ensure that you go to the appropriate specialist. If you have Chronic Fatigue Syndrome or Fibromyalgia, you should not go to a physiatrist or orthopedic surgeon. You could go to an internalist, a rheumatologist or an infectious disease specialist that believes: (a) that Fibromyalgia is an organic illness; or (b) has diagnosed several people with Fibromyalgia. You can make this request; however, it is up to Canada Pension Plan=s discretion whether it will act on it. During the investigation by the independent doctor, he or she is not permitted to do any type of invasive tests such as a myelogram or exploratory surgery. They may, however, be permitted to take x-rays, to take a history and to observe you.
Often, the supposed expert does not take any time to do a proper evaluation. For that reason, it is in your best interest to document all aspects of the assessment. The same applies if you are seeing a vocational consultant or rehabilitation expert.
- Are there any pointers that I should keep in mind in filling out my application for benefits? Please remember that CPP avoids many benefits by finding that you are able to do light or sedentary work. You should avoid any ambiguous statements that may be interpreted as meaning that you feel you are able to do light or sedentary work as this will be held against you. There should be no note of unwarranted optimism included; but rather, the realistic, factual prognosis should be spelled out (even though you might Awish@ or Ahope@ that you could return to your employment at the earliest opportunity.) Remember, it is much harder to clear the water after it is muddied with a poor medical report or a bad application, and your success rate is much greater the more extensive the initial application is.
- I am still working. However, I am concerned that things are getting worse. Do you have any tips? If you are working and have to use a sick day because of your illness, please ensure your supervisor puts a note in your file stating this. If you have a legal case, later on, employment records can be used as evidence both for and against you. It is better for you if it is shown that you had problems related to your disability rather than just a notation that you took a sick day. Also, keep a diary of your symptoms.
Bayda Disability Law Firm
serving Alberta & Saskatchewan
Calgary Canada Pension Plan (CPP) Lawyer
Suite #9, 1915 – 32 Avenue NE
Calgary, Alberta, T2E 7C8
Toll free: 1-855-670-0070