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22/Nov/2016
Challenging the Denial of CPP Benefits: Success on Appeal

The Canada Pension Plan (CPP), Canada’s largest public disability insurance program, has been the subject of recent criticism. Applicants with long-term and disabling conditions whose claims for CPP disability benefits have been denied are finding it harder to get those decisions overturned on appeal.  Appeals are made to the Social Security Tribunal of Canada (SST). As reported in the Globe and Mail,[1] in 2013-14, “just 43.4 per cent of appellants were able to convince an adjudicator of the SST that they had been wrongfully denied”.

The CPP provides monthly disability benefits to people who are disabled from working at any job on a regular basis and who have made enough contributions to the CPP while they worked. Additional benefits are also available for dependent children of injured workers.

The CPP definition states that a disability has to be both “severe” and “prolonged”, and must prevent a claimant from being able to work at any job on a regular basis. The legal test for eligibility is one of employability as opposed to medical eligibility.  This means that the type of illness or disability does not dictate whether or not a CPP disability benefit is approved, but rather how the medical condition and its treatment affect one’s ability to work at any job on a regular basis.

The denial of CPP disability benefits is problematic even for people who have private disability insurance through their employers. Most group policies provide that the amount of the private insurer’s payout is reduced dollar-for-dollar by the amount paid by CPP disability benefits.  As such, group insurers generally insist that their members also apply for the federal CPP benefit. If the government benefits are denied, the private benefits are often terminated.

Appealing the denial of CPP benefits can be an uphill battle. For starters, the SST has the authority to summarily dismiss an appeal if it is satisfied that the appeal has no reasonable chance of success. Secondly, claimants do not have the right to plead their case directly to a tribunal member. Thirdly, an in-person oral hearing is no longer a guaranteed right but only one option among several.  These include a hearing by teleconference, video conference or on the basis of the written documents only. Hearings of this nature arguably deprive claimants of an important assessment of their credibility by the decision maker.

Despite the inherent challenges that confront claimants at the SST, Bogoroch & Associates LLP recently succeeded in appealing a denial of CPP benefits following a hearing by teleconference.  Our client underwent a partial amputation of his foot as a result of a motor vehicle collision.  He was 42 years old when he applied for CPP benefits. He had not completed high school and had experience as a truck driver and fork lift operator. Despite having received a prosthetic foot, he continued to experience constant pain in his back and foot along with periods of depression.

The claim for benefits had been denied on the basis that the disability was not “severe” and “prolonged” and that there was evidence of work capacity. The government relied on a medical report concluding that the applicant could do some form of sedentary work. Through the oral testimony of the applicant and his spouse, together with other supportive medical evidence, we were successful in establishing that our client met the test for eligibility for benefits. The Tribunal held that our client is not capable of being retrained for alternate work due to his lack of education, lack of transferrable skills, and weak academic skills.  With proper preparation, the oral evidence convinced the SST adjudicator that our client was honest, credible and was unemployable.

If you or someone you know has had their CPP disability claim denied and is seeking success at the SST, do not hesitate to contact us.

 


[1] Article by Gloria Galloway reported July 7 2014.

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