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Part 2: Always appeal refusal of CPP disability benefits

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For the second part of our series about CPP disability benefits, I interviewed David Brannen, a former occupational therapist turned disability claim lawyer from Moncton, New Brunswick. Brannen is the author of A Beginner’s Guide to Disability Insurance Claims in Canada. He started the national disability claim law firm Resolute Legal to help deserving people win long-term disability payments from insurance companies and the CPP Disability Program, even after a denial or unsuccessful appeal.  Thanks for joining me today David.

I’m delighted to be here, Sheryl

Q: How does the definition of eligibility for CPP disability benefits differ from the definition in an individual or a group disability insurance plan?
A: The easiest way to look at it is that the CPP definition is much harder to meet than most disability insurance policies. CPP disability is focused on the inability to do basically any job in the economy, whereas disability insurance policies look at the ability to do your own job. Then there usually is a second part in an insurance policy that will continue to pay benefits if you’re disabled from doing any job as defined by the insurance policy but that is usually a much less restrictive definition of any job as would be defined for CPP.

Q: So how hard is it to meet the eligibility criteria and get CPP disability benefits? Of the people who apply, how many are successful at the first level?
A: The last data that we had released was an auditor-general’s report back in 2016. The results were pretty shocking and showed that of the 70,000 people who applied in the audit year, about 60% were denied.

Q: Why is the denial rate so high?
A: It’s hard to say. I would assume a number of those people of the 60% simply don’t meet the eligibility from a contribution standpoint so many people have either not made recent contributions or they’ve never paid into CPP at all. But the bulk of people who have met the contribution requirements get denied because they simply don’t have enough information for the case to be approved.

Q: Why should a person receiving LTD benefits — that’s long-term disability benefits — from a private or a group plan apply for CPP disability benefits although if they are successful the LTD benefits will typically be reduced?
A: That is a very good question. The first reason I tell people is look, you really don’t have a choice because after a certain point the insurance company will estimate and start deducting your CPP disability amount even if you’re not receiving it.

The other big one is that receiving a CPP disability benefit will actually result in you eventually getting a higher CPP retirement. The general idea is that it shows that you’ve been out of the workforce for a legitimate reason and it actually does factor into the ultimate CPP retirement pension at the end. Finally, getting the CPP disability benefit is really a safety net. If you suddenly lost your disability benefits you would have still the income coming in from the CPP disability program.

Q: That’s interesting. Now, tell me about the appeal process available to people who are turned down.
A: Okay. It’s a two-step paper appeal process. So once you apply and get a denial, you have 90 days to submit a written appeal requesting a re-consideration. You will send it directly to Service Canada, the same people who declined the original application. The best scenario is that you will supply more information to support your arguments.

If your internal reconsideration is denied, the next level of appeal is to the Social Security Tribunal which is an independent body that is the final decision-maker as to whether or not you are entitlted to a CPP disability benefit.

Q: You just told me in an offline discussion that typically those hearings are held by video conference or telephone.
A: You have the option to do them in person and certainly sometimes the tribunal judges will request an in-person hearing but more and more they are scheduled by video conference and telephone. It enables the Tribunal to actually process the claims more quickly and at less expense to the claimant.

Q: So of the 60% of applicants who are turned down initially, what percentage go on from there to submit a reconsideration appeal and then an appeal to the Social Security Tribunal if they are turned down a second time?
A: One of the big things that really shocked me when I saw the auditor general’s report is that of the 40,000 people denied, about 66% just give up altogether. That means only 33% or about 13,000 people actually file appeal. Then of these 13,000 people, about 35% get approved and about 65% are denied. That leaves you with a pool of like about 8,500 people who get denied after the second appeal.

So you’re already down from 70,000 to 8,500 who are denied at that second level. Again, of those people who get denied on the first appeal, more than half give up. As a result, the number of people that go on to the tribunal hearing is about just over 3,000 people as documented in the most recent report.

Q: How do they do?
A: Actually they do fairly well. Of the 3,000 that go to the final hearing, about just over 60% actually get approved. That shows if you’re one of those people that does persevere to the end, you do have a better than 50% change of winning at the tribunal hearing, all things being equal. It’s the one point where the percentage of approvals kind of flips if you look at it. By the time you make it to the tribunal here is about a 60% approval rate.

Q: So you’ve published a number of online publications to help people and one of them is The CPP Disability Claims Approval Blueprint. What are some of the tips for success on appeal that you offer in blueprint?
A: Number one is meet the claim deadlines. Many people lose and are denied because they just don’t meet the deadlines for appeals. It’s a very unforgiving system. The other thing we tell people is that most claims are denied because there’s just a lack of information. Therefore, we encourage people to just get as much information into the claim file as possible. That means getting your complete doctor’s records going back as far as possible. Any physiotherapy records or medical records you send in are helpful. Most people just send in their most recent family doctor’s records but I can’t emphasize how important it is to have historical records on file.

Finally, the real secret to winning these cases is building a persuasive narrative and story of your case. To build that narrative you need the historical medical records. One of the most powerful stories you can tell is a struggle over time — that you just didn’t decide to stop working one day. You can show you struggled for years at work. You struggled with disability and pain for years and it’s all recorded in the medical records. Once you can show that powerful story all of a sudden the hearing can flip from, “Why aren’t you still trying to work?” to, “Wow, look at what this person’s been through over the last five years.” 

Q: How can a disability lawyer help people who are turned down the first time around?
A: Frequently disability lawyers can help not by necessarily jumping in to represent people but by giving them better information to do a better job representing themselves. The main value a lawyer brings in a case like this is the ability to pinpoint where the information gaps are. The fact that you’re disabled does not win your case. What wins the case is showing that the medical records or the materials you put in demonstrate you’re disabled.

I guess lawyers help most by being able to pinpoint the specific information that’s needed and sometimes they are better able to get the information. Doctors are often not as receptive to having the patient tell them, “Can you please expand on this? We need to know more about that.” But if a lawyer writes to them, they’re more likely to respond to those types of inquiries.

Q: How much does it typically cost for legal services to appeal a CPP disability claim?  After all, disabled people appealing CPP benefit typically haven’t worked for a long time and may be really broke. How much are they putting out and how long is it going to take them to pay this off before they even have a pension in their pocket?
A: I can’t speak for all lawyers or people who practice in this area. We take cases on a no win, no fee basis so that there’s no money is required upfront. You would just pay if an appeal is successful. Anticipating this call, I calculated that our average fee for the last year was about $4,500. That’s based on all cases, including ones where we get a zero because the case is lost.

Typically if we are successful, there is a back payment and the fee would be paid as a percentage of that back-payment (say about $15,000). Like I said, our average for 2016 was around $4,500 of that back-payment. We’d get our fee and our client would keep the remainder and all future payments. 

Q: Okay, that’s great. So is there any other comments or questions that I didn’t ask that you’d like to comment on?
A: Many people, legitimate people I see are denied are for two main reasons. One, they haven’t tried to go do other types of work or they haven’t demonstrated that they really tried to stay in the workforce.  The other one is, for whatever reason not really following through all of the medical recommendations. So if you quit going to physio, if you refused to take a drug, those are kind of things that can also cause a legitimate claim to be denied

***

That’s great! Thank you very much, David. It was a pleasure to chat with you today.

It was my pleasure. Thank you.

David Brannen

 

Written by Sheryl Smolkin
Sheryl Smolkin LLB., LLM is a retired pension lawyer and President of Sheryl Smolkin & Associates Ltd. For over a decade, she has enjoyed a successful encore career as a freelance writer specializing in retirement, employee benefits and workplace issues. Sheryl and her husband Joel are empty-nesters, residing in Toronto with their cockapoo Rufus.

Part 1: What you need to know about CPP disability benefits

Employed and self-employed Canadians must pay into the Canada Pension Plan or Quebec Pension Plan* throughout their working career. The standard age for beginning to receive your CPP retirement pension is the month after your 65th birthday. However, you can take a reduced pension as early as age 60 or begin receiving an increased pension after age 65.

But many people do not realize that if they are under age 65 and become disabled, they may be eligible for taxable monthly CPP disability benefits.

Eligibility
To qualify for a disability benefit under the Canada Pension Plan (CPP), a disability must be both “severe” and “prolonged”, and it must prevent you from being able to work at any job on a regular basis.

  • Severe means that you have a mental or physical disability that regularly stops you from doing any type of substantially gainful work.
  • Prolonged means that your disability is long-term and of indefinite duration or is likely to result in death.

Both the “severe” and “prolonged” criteria must be met simultaneously at the time of application. There is no common definition of “disability” in Canada. Even if you qualify for a disability benefit under other government programs or from private insurers, you may not necessarily qualify for a CPP disability benefit. Medical adjudicators will determine, based on your application and supporting documentation, whether your disability is both severe and prolonged.

Benefit levels
For 2017, the average monthly CPP disability benefit for new beneficiaries is $952.51 and the maximum monthly amount is $1,313.66. If you are receiving a CPP disability benefit, your dependent children may also be eligible for a children’s benefit. In 2017, the flat monthly rate your child can receive is $241.02.

If you are aged 60 to 64 and you think you might qualify for a CPP disability benefit, you may also want to apply for a CPP retirement pension. While you cannot receive both at the same time, you may qualify to begin receiving a retirement pension while you wait for your CPP disability benefit application to be assessed, which usually takes longer.

If you are already receiving a CPP retirement pension when your application for a disability benefit is approved, Service Canada will switch your retirement pension to a disability benefit if:

  • You are still under the age of 65.
  • You were deemed to be disabled, as defined by the CPP legislation, before the effective date of your retirement.
  • You have been receiving your CPP retirement pension for less than 15 months at the time you applied for your disability benefit; and
  • You meet the minimum contributory requirements.

Should your disability benefit be approved, you must pay back the retirement pension payments you received. According to Service Canada, the retirement pension payments are normally from your first disability payments.

Waiting period
It takes approximately four months for a decision to be made from the date your application and all the necessary documents is received. See how disability benefit applications are assessed. A Service Canada representative will call you to explain how your application will be processed, the type of information required and answer any questions.

Medical adjudicators may also ask for additional information or ask you to see another doctor who will evaluate your medical condition. How long it takes for them to receive the requested information will impact the time it takes for your application to be processed.

If you are eligible under the terms of the Canada Pension Plan (CPP) legislation, your disability benefits will start the fourth month after the month you are determined to be disabled. You may receive up to a maximum of 12 months of retroactive payments from the date your application was received.

While on CPP disability benefits
Without having any effect on your CPP disability benefit, you can:

  • Do volunteer work
  • Go back to school to upgrade or complete a degree, or
  • Take a re-training program.

You can earn up to a certain amount without telling Service Canada and without losing your benefits. For 2017, this amount is $5,500 (before taxes). This amount may increase in future years. If you earn more than the amount allowed, you must contact Canada Pension Plan.

Your CPP disability benefit may stop if:

  • You are capable of working on a regular basis.
  • You are no longer disabled.
  • You turn 65 (it will automatically be changed to a CPP retirement pension)
  • You die (it is important that someone notify Service Canada about your death to avoid overpayment).

What if my claim is refused?
If your claim is refused there is a reconsideration and appeal process. (See Part 2 in this series).

*This article focuses only on CPP disability benefits and does not further explore similar disability benefits available under the QPP.

 

Written by Sheryl Smolkin
Sheryl Smolkin LLB., LLM is a retired pension lawyer and President of Sheryl Smolkin & Associates Ltd. For over a decade, she has enjoyed a successful encore career as a freelance writer specializing in retirement, employee benefits and workplace issues. Sheryl and her husband Joel are empty-nesters, residing in Toronto with their cockapoo Rufus.

How much will I get from CPP?

By Sheryl Smolkin

A pension from the Canada Pension Plan (CPP) is an important foundation on which most Canadians will build their retirement income. Therefore it is important to understand how much you will be entitled to at retirement.[i]

The maximum monthly amount you can receive if you retire at age 65 in 2015 is $1,065. Service Canada reports that in October 2014 the average pension for new beneficiaries was $610.57. That’s because applicants only got a full pension if they contributed the maximum amount up to the Yearly Maximum Pensionable Earnings (YMPE) for at least 40 years between ages 18 and 65.

The YMPE in 2014 was $52,500 and it increased to $53,600 in 2015. Therefore this year the maximum CPP contribution for both employers and employees is $2,479.95. Self-employed people must remit up to $4,959.90. If you earn more than the YMPE you will notice a “salary bump” part way through the year once you have made maximum CPP (and Employment Insurance) contributions.

CPP offers protection against periods where you had reduced or zero earnings for general reasons (up to eight years) or child-rearing  by automatically dropping a number of months of your lowest earnings when calculating your CPP benefit. You can start collecting CPP at age 60 but your annual pension will be reduced by .58% per month prior to age 65 (rising to .6% per month in 2016). If you take an early CPP pension and go back to work, you must continue to pay into the plan until at least age 65. CPP contributions for working Canadians over age 65 are optional until age 70.

When you are already receiving a CPP pension, contributions between ages 60 and 70 increase your benefit by a lifetime Post-Retirement benefit (PRB). The maximum annual PRB you can earn in 2015 is $319.56 and it will be added to your benefit payments in the next year.

CPP uses a Statement of Contributions to keep a record of your pensionable earnings and your contributions to the Plan. The Statement of Contributions can assist you in your retirement planning.

Your statement shows your total CPP contributions for each year and the earnings on which your contributions are based. If you contributed the maximum there will be a letter “M” beside the year. In addition, it provides an estimate of what your pension or benefit would be if you and/or your family were eligible to receive it now.

You can view and print a copy of your Statement of Contributions online. You will need to request a Personal Access code that will be sent to you by mail.

You can also request a hard copy of your statement from:
Contributor Client Services
Canada Pension Plan
Service Canada
PO Box 9750 Postal Station T
Ottawa ON K1G 3Z4

Table 1: CPP Contributions and Benefits

CPP 2014 2015
CONTRIBUTION AND BENEFIT LEVELS
Year’s Maximum Pensionable Earnings $52,500.00 $53,600.00
Contribution Rate – Employee/Employer 4.95% 4.95%
Maximum Contribution – Employee/Employer $2,425.50 $2,479.95
Year’s Basic Exemption $3,500.00 $3,500.00
Pensionable Earnings* $49,000.00 $50,100.00
RETIREMENT BENEFIT MAXIMUM
Monthly pension on retirement during the year at age 65 $1,038.33 $1,065.00
OTHER BENEFIT MAXIMA
Monthly Survivor’s Benefit
Spouse age < 65 $567.91 $581.13
Spouse age = 65 $623.00 $639.00
CPP Flat Rate Component:
Survivor’s Benefit
$178.54 $181.75
Monthly Disability Benefit
Maximum $1,236.35 $1,264.59
Flat rate component $457.60 $465.84
Lump Sum Death Benefit $2,500.00 $2,500.00
Deceased/Disabled Contributor’s Child Benefit $230.72 $234.87
INDEXATION RATE 0.9% 1.8%

* This figure represents the Year’s Maximum Pensionable earnings minus the Year’s Basic Exemption.

Also read How to Calculate Your CPP Retirement Pension

[i] Disability benefits and survivor benefits are also payable from CPP. See Table above.

Old Age Security: Take it now or later?

By Sheryl Smolkin

07Feb-OASapp

When you are planning to fully or partially retire, there are many decisions to make. Most Canadians are aware that they can elect to start receiving their Canada Pension anytime between age 60 and 70.

But many do not know that as of July 2013 if they become eligible for OAS benefits at age 65 they can also choose to defer receiving benefits for up to five years.

Regardless of whether you choose to defer your OAS or not, you must apply for benefits from this program when you wish to begin receiving payments.  It may make sense to wait, however, if at age 65 your income is still high enough that your benefits would be fully or partially clawed back. That would occur if you have net income between $71,592 and $115,716 on your tax return, and assuming you expect it to decline in future.

OAS is paid to seniors over 65 who are Canadian citizens or legal residents and have lived in Canada for at least 10 years after turning age 18. People living outside Canada at the time of application must have resided in Canada for at least 20 years after their 18th birthday. Your employment history is not a factor. A full OAS benefit is based on 40 years of Canadian residence.

For the period beginning January 2014, maximum OAS benefits are $551.54 per month or $6,618,48 per year. Benefits are indexed to inflation and adjusted quarterly. If you decide to delay collecting OAS beyond age 65, the benefit will be increased by 0.6 per cent for each month of delay to a maximum of 36%.

Therefore, based on the current annual benefit level (excluding future inflation), the pension you receive beginning at age 70 will be $9001.13.

Marissa Verskin, a senior tax manager at Toronto accounting firm Crowe Soberman, says the decision on whether to delay collecting OAS or claim it right away should depend on your personal situation. This includes your life expectancy, current and projected future income level and your expected rate of return.

Some of the other circumstances that may influence your decision are if you have chosen to work beyond age 65 or if you anticipate receiving a large one-time capital gain or lump sum at retirement (i.e., for accumulated sick leave credits or severance pay).

Doug Runchey of DR Pensions Consulting spent 32 years with Human Resources and Skills Development Canada. He says if you choose to defer receiving OAS beyond age 65 you can’t “double dip.”

That means if you are only eligible for a partial OAS pension because you have less than the 40 years of residence required for a full benefit, you can’t use the deferral period to both increase your OAS pension by counting it as additional years of residence and also receive a 0.6 per cent per month increase for voluntary deferral.

Service Canada is required to count the deferral period either as additional years of residence or a period of voluntary deferral — whichever is of the greatest benefit to the client.

Runchey also says there could be another collateral advantage to voluntary deferral of OAS. “If you delay and increase your OAS by 36 per cent to $9001.13 per year, you also effectively increase the maximum income claw back threshold to $131,599 from $115,716,” he says.

If you have started receiving your OAS benefits within the last six months but think you can benefit from the deferral, you can write to Service Canada and ask them to cancel your benefits for now. Once your request is approved, you will have to pay back the benefits received. Then you can reapply for OAS at a later date.

By 2023, gradual changes in the age of OAS eligibility from age 65 to age 67 will be fully phased in. This change will not affect OAS applicants or recipients born before March 31, 1958. But people born between April 1, 1958 and January 31, 1962 will have a date of eligibility between ages 65 and 67. For example, a person born in June or July 1961 will be not be eligible to collect OAS until age 66 plus eight months.

Also see:
Old Age Security
Changes to the Old Age Security program – Service Canada
Voluntary deferral of OAS – Retire Happy
Getting what’s yours when it comes to government pensions