HUMA Committee Report

All disability income replacement programs or pensions contain two general criteria to establish eligibility: a medical condition that results in a disability and constraints with regard to employability. The definition used by CPP(D) contains both of these plus a contributory requirement. The general nature of these eligibility requirements has not changed substantially since 1966. To be eligible, a person must have a severe and prolonged disability, be unable to work and have contributed to the Canada Pension Plan for a defined period of time (currently four out of the last six years).²⁹ If people meet these conditions, they are eligible for benefits; if they do not meet them, they do not receive anything. Michael Mendelson told us that:

… at its heart, the Canada Pension Plan Disability is a kind of program working by binary categorization. By this I mean you set up a fence. On the one side of the fence are the people who are entitled to the program, who acquire the label of being disabled or of having a certain kind of disability; and on the other side of the fence are those who don’t manage to make it through that barrier. We know that people don’t come in categories… . We know that people come in spectrums, if we can call it that. These are not even one-dimensional spectrums, but very complicated multi-dimensional ones. (Michael Mendelson, Caledon Institute of Social Policy)³⁰

In the audit of the Canada Pension Plan Disability in 1996, the Auditor General reinforced the difficulty of setting a fence around a disability program and stated the situation clearly:

The status of persons with disabilities remains a complex social issue and is difficult to determine with precision. It entails especially sensitive human, moral and emotional dimensions. It is made up of individual cases all different from one another, from which it is impossible to draw general conclusions.³¹

When the Subcommittee began this study, the participants in our 21 May 2002 roundtable identified eligibility criteria for CPP(D) as one of the major issues that they believed we should grapple with as we moved forward in our work. ³² The fundamental questions we faced were:

Should [the eligibility criterion of severe] include looking at other factors that affect employability? Should it look at the level of literacy, the level of language proficiency, violence somebody may have experienced in their lives, and the unemployment rate in the region where the person is applying?…

Are there other conditions that should be eligible for disability benefits that may actually not fit into the current criteria because they don’t have the medically objective features you’d be looking for, but that are nonetheless considered to be disabling conditions? (Sherri Torjman, Vice-President of the Caledon Institute of Social Policy)³³

Using the issues raised at the Roundtable, the Subcommittee asked Canadians further questions about CPP(D) eligibility criteria in our online consultation.³⁴ The issue poll questionnaire also outlined possible changes to these criteria.³⁵ Witnesses who came before the Subcommittee as well as participants in the online consultation who sent in stories and solutions raised many concerns related to flexibility in the application of CPP(D) eligibility rules. These dealt with the interpretation of eligibility criteria by CPP(D) staff. Another area of concern deals with the interpretation of the requirement that an individual must not be able to regularly pursue a substantially gainful occupation in order to qualify for CPP(D) benefits.

After looking at all the evidence, the Subcommittee agrees with Professor Michael Prince who told us that:

We need to ensure that one of the values guiding the reforms is that this and other programs have clear, coherent and consistent eligibility criteria that respect the intentions of Parliament and the legislative assemblies of the provinces agreeing to this program. (Professor Michael Prince, University of Victoria)³⁶

3.1       What We Discovered

3.1.1   Defining Disability

Defining disability, and applying the definition, is a thorny and difficult question. This is particularly the case in light of the need to apply the “binary” categorization to establish eligibility in federal disability programs to a personal circumstance that fits best when it is assessed on a subtle gradient of impairment. The difficulty is compounded by the fact that someone “wins” or “loses” — there is no compromise solution. Where should the line be drawn?

The Subcommittee on the Status of Persons with Disabilities has tried on several occasions to prod the government to address the confusion surrounding the definition of disability used in federal programs. In the 2001 report A Common Vision, the Committee recommended that the federal government put together a task force to study ways of harmonizing the various definitions in federally administered disability programs.³⁷ We asked for a progress report by June 2002. Even though the government response accepted our recommendation,³⁸ this deadline has come and gone with no taskforce announced and no progress reported.³⁹

As expected, the definition of disability assumed considerable importance during our study of the CPP(D). Apparently, the definition used in CPP(D) was inspired by the social security system in the United States when that country brought in disability insurance in the mid-1950s and, as we have pointed out earlier, CPP(D)’s definition has not deviated from this model for almost half a century. During the Subcommittee’s study, the issue of definition came up in several contexts:

•	the wording of the definition of disability used by the CPP(D);40

•	the interpretation of “severe and prolonged” disability and its determination by nurses and medical professionals working for the Review Tribunal and Pension Appeal Board;

•	its relationship of both “severe” and “prolonged” to the ability to work; and

•	the incorporation of “real life circumstances.”

Canadians repeatedly told us that they did not understand why someone with a disability could be eligible for one federal program but not another.

I am a correctional officer. I had an injury that became an illness, and I had surgery on my shoulder at 29 years old. I returned to work, but 14 years later, my condition degenerated and more surgery was necessary. I never recovered and surgeons told me that my current career was over.

My disability insurance at work took over and began to pay about 66% of regular weekly earnings. My contract stipulated that I had to apply for CPP(D). I found the application long, though not that difficult to complete. I was satisfied that, with the findings provided by my specialists, my benefits were accepted. For the next 11 years, CPP(D) worked very well for me. However, last year, I found out that I was no longer allowed the disability tax credit, despite my physician’s protests on my behalf. It is my opinion that anyone who qualifies for CPP(D) benefits should also automatically receive the disability tax credit. To lose this credit is a major blow, especially as I have one child in university and another about to start this fall. We needed that money to help with tuition and living expenses for our kids. My income has been reduced by $1500 because of this change. (Anonymous, E-Consultation Participant)

One of the things that confuses ordinary Canadians is why they may qualify for one federal program under one definition of disability, but not under others. HRDC is undertaking a review of these definitions across various federal programs and services. I would urge that this process become more transparent, more public, more accountable to this committee and more participatory, so that groups are involved in it. I think this subcommittee should play a role in reviewing the exercise sometime over the next two to five years. (Professor Michael Prince, University of Victoria)⁴¹

While the subject matter before the subcommittee today is the CPP disability program, we believe a broader focus on the issue of disability itself and federal health programs in general is needed. Issues related to the CPP disability program are issues common to other federal disability assistance programs….As with our presentation on the disability tax credit program the C[anadian] M[edical] A[ssociation] recommends that a standard of fairness and equity be applied across all federal disability benefit programs. Currently there is virtually a different definition and a different assessment process for each and every program. A common frustration for physicians is that while the patent qualifies as disabled under one disability program, that same patient does not under another.

The CPP criteria define “severe” as preventing an applicant from working regularly at any job and “prolonged” as long term or as that which may result in death. However, the disability tax credit program notes that “severe” is to be interpreted to mean markedly restricting any of the basic activities of daily living and that a disability must be “prolonged” over a period of at least 12 months… Other programs, such as veterans’ benefits, that have entirely different criteria have added more to this mixture. (Dr. Dana Hanson, President, Canadian Medical Association)⁴²

I know the issue of the disability tax credit has certainly been controversial. One of the things we have heard and are suggesting is that if someone does qualify under CPP as having a serious and prolonged illness, that should automatically qualify them for the disability tax credit, rather than their going through different kinds of criteria, a different kind of screening, and being forced through yet another maze. We recognize that it truly is a maze. There are numerous definitions of disability out there, an absolute patchwork quilt of disability programs. Ultimately we have to pull that together, but as an interim measure certainly we can look at there being some consistency between federal programs. (Dr. Cheryl Forchuk, Member, CPP Review Tribunal Panel)⁴³

Recommendation 3.1

Given the ongoing problems with definitions of disability, the Committee recommends that the Privy Council Office establish a taskforce, modelled on the Voluntary Sector Taskforce, to work with relevant partners from the community to address these problems (particularly those associated with CPP(D) and the Disability Tax Credit). The Committee further recommends that the federal government initiate discussions with the provincial and territorial governments to bring some consistency and coherence to the definitions of disability used by programs in all jurisdictions.

Recommendation 3.2

The Committee recommends that a comprehensive information package be developed to provide a description of each federal disability program which requires medical assessments, its eligibility criteria, the full range of benefits available, copies of sample forms, and any other relevant material.

3.1.2   What about Degenerative, Cyclical and Mental Disabilities?

Some Canadians have experienced more difficulties with the application of the “severe and prolonged” element of the CPP(D) definition of disability than others. The Subcommittee, therefore, was interested to find out whether CPP(D) should be more flexible in applying the eligibility rules to people with degenerative diseases and mental illnesses. A vast majority of respondents to our Issue Poll either agreed or strongly agreed that CPP(D) eligibility rules should be more flexible for both people with degenerative diseases and people with mental illnesses (92% of respondents). As well, the stories and solutions presented to the Subcommittee highlighted the need for flexibility in applying eligibility rules and for broadening the rules to include persons who suffer from degenerative diseases (e.g. multiple sclerosis, cystic fibrosis, arthritis) and mental illnesses, as well as so-called “invisible illnesses” (e.g. fibromyalgia, chronic fatigue syndrome, myofascial pain syndrome, multiple chemical intolerance or sensitivities). Many CPP(D) applicants have disabilities related to medical conditions for which it is very difficult to test or scan. These people told us that they find it difficult to qualify for CPP(D) benefits because of CPP(D)’s emphasis on so-called objective medical evidence.

Definition of severe and prolonged is too rigid to include the realities of Relapsing Remitting MS for some people. Some people have 10 symptoms and some have one, some symptoms are severe, others are less severe and all of this changes over time, nothing stays the same (except for the ones who were progressive —  they deteriorate quickly and stay there). (Anonymous, BC, E-Consultation Participant)

… a new and fairer definition of disability [should] be developed to cover people with severe, prolonged or recurrent disabilities, one that will touch people who have cyclical kinds of illnesses. (Deanna Groetzinger, Vice President, Multiple Sclerosis Society of Canada)⁴⁴

I have Fibromyalgia, Chronic Fatigue Syndrome, Myofascial Pain Syndrome, and many other known illnesses that fall under the umbrella of the “Invisible Illnesses” of FM/CFS, such as Irritable Bowel Syndrome, MVP, OA, Migraines, GERD, etc. I applied for CPP Disability only after I had tried everything imaginable to cope with and/or improve my life in living with these illnesses. … I gave up all social activities, changed my lifestyle dramatically by down-sizing the home I lived in, curtailed all my hobbies that I enjoyed (gardening, reading, visiting), and had to quit a job that I loved dearly because I was just unable to do it any longer. …

My application has been in the “process” now for almost 2 years and there is no need for this to go on that long. … Their failure to acknowledge our illnesses (request repeat letters, request further tests, paper us to death with routine form letters), and not treat us individually, only intensifies our feelings that we are being treated like liars, thieves, and cheats. (Sandy, ON, E-Consultation Participant)

I think you have to acknowledge the emotional mental illness to a greater extent. I think that is a difficulty. It’s been alluded to by the Canadian Psychiatric Association, and also the sequela of depression that sets in, in an individual who is not working, and how that even contributes further to the person’s disability and can contribute to a greater extent to their disability. (Dr. Hillel Finestone, Physiatrist, Elizabeth Bruyère, Health Centre)⁴⁵

Despite the fact that MCS [Multiple Chemical Sensitivities] is recognized by the Canadian Human Rights Commission as a legitimate disability, I have been denied long-term workers compensation benefits, disability benefits, workplace accommodation, and rehabilitative programs offered to other persons with disabilities. I qualify for superannuation disability, but have been refused CPP disability benefits. No one will explain how my claim can be accepted and refused under the same Treasury Board definition of disability. My disability claim experience typifies that of other MCS claimants. (Anonymous, E-Consultation Participant)

We heard that the evaluation tools for people with mental illnesses and impairments do not work well. Dr. Blake Woodside of the Canadian Psychiatric Association told us that a new tool, separate from those assessing physical handicaps, should be developed that would set clear and reliable standards for disability and functional impairment specific to mental illness.⁴⁶ New and specific assessment tools could also be developed for many other illnesses.

Recommendation 3.3

The Committee recommends that the terms “severe and prolonged” in section 42 of the Canada Pension Plan be amended to take into account cyclical and degenerative mental and physical conditions.

Recommendation 3.4

Whether Recommendation 3.3 is implemented or not, the Committee recommends that Human Resources Development Canada (HRDC) immediately amend its CPP regulations, administrative guidelines, and manuals to ensure that the interpretation of the term “severe and prolonged” disability properly considers degenerative diseases, as well as mental, episodic and invisible illnesses (e.g. chronic pain, chronic fatigue syndrome, fibromyalgia and multiple chemical sensitivities). In addition, HRDC should develop, in consultation with the community and health care professionals, specific evaluation tools for these particular disabilities to be used in assessing eligibility for CPP(D).

3.2       Gatekeeping

Many of those who appeared before us and some participants in our online consultations described serious concerns with respect to the application of the definition of disability and how it affects decisions to allow or deny CPP(D) benefits. According to the Act, these benefits are payable only in cases where a person has a mental or physical disability that is “severe and prolonged” enough to interrupt his or her ability regularly to pursue any substantially gainful employment (temporary and partial disabilities are not covered).⁴⁷ The cause of the disability is irrelevant.

We are concerned that the working definition of “disability” seems to change through administrative fiat. Basically we’ve had the same definition in the legislation since the act came in, in the sixties, with no change, but the interpretation seems to be moved back and forth by the department depending on a whole range of factors. (Harry Beatty, Canada Pension Plan Working Group of Ontario)⁴⁸

3.2.1   Applying the Definition of Disability

Who decides? There appear to be different parts to this issue. The first of these relates to the position of physicians as gatekeepers at the application stage. Doctors are paid by CPP(D) to provide medical information about an individual who has applied for CPP(D). This information can include consultants’ reports, investigative reports and hospital notes. If a person appeals a negative decision regarding eligibility, CPP(D) may contact the physician again for additional information. Physicians told us that filling out all the different types of medical forms with different criteria was a considerable burden on their time and energy.⁴⁹

Increasingly, physicians are spending more and more of their time filling out forms, forms for federal health programs such as the CPP, for private health insurance claims, pension benefits, tax credit eligibility, pharmaceutical plans and workers’ compensation to name just a few. To figure out all the various forms and determine eligibility, you almost need to be a physician, a lawyer, and a tax expert. (Dr. Dana Hanson, President, Canadian Medical Association)⁵⁰

What I am looking for is, if within the federal programs there could be one simple item with a similar definition yet the criteria could be applied if Veterans Affairs said those criteria had to be something related to work with the armed forces or the RCMP, or what have you, versus for the general population, through the CPP. Those criteria could be applied; however, the basic similarities could be utilized to minimize the paperwork and time consumption that many of us feel quite concerned about. (Dr Ashok, Muzumdar, President, Canadian Association of Physicians with Disabilities) ⁵¹

There’s a different definition and a different assessment process for every program, so that people have to go back to their doctors for a different form every time they apply for something. I would at least like to see somebody look at the programs and at the differences between them to see if they can be justified, or whether there is a possibility of having not necessarily a standardized but at least a more uniform approach in some ways. (Harry Beatty, Canada Pension Plan Working Group of Ontario)⁵²

… as a physician when I first began dealing with people who are disabled, I had no idea how to fill out the forms. Nobody has ever told me. I have just been told by one of my colleagues here that there is actually some kind of guideline for physicians but because I am not a family physician, I was never made aware of it. So I feel badly that some of my patients may have been at a disadvantage early on in the process when I didn’t have a good understanding of the system and I think it would be essential since doctors are part of the process, to give us some information about how to fill out the forms. (Dr. Eleanor Stein)⁵³

In the Committee’s view, the government needs to take action to reduce the burden on physicians and to better inform the medical profession as a whole about how to assist and assess patients who are applying for CPP(D).

Recommendation 3.5

The Committee recommends that the mandate of the taskforce to clarify the definition of disability (see Recommendation 3.1) include, as a priority, consideration of specific ways to reduce the administrative burden placed on health care providers and applicants for federal disability benefits by using a common application form (or by consolidating application procedures) and common assessment procedures (e.g. using CPP(D)’s nurse practitioners also to determine eligibility for the Disability Tax Credit). 

Recommendation 3.6

The Committee recommends that Human Resources Development Canada provide the comprehensive information package (see Recommendation 3.2) to all health care professionals and put in place an outreach program to provide them with information and education.

Applying the definition of disability also involves the possibility that CPP may decide to send an applicant to a specialist or request an “independent medical consultation” for a second opinion.⁵⁴ In addition, adjudicators who are medical professionals (usually nurses) decide whether an initial application meets the “severe and prolonged” criteria and may consult CPP physicians. The adjudicators do not have face-to-face meetings with the applicant.

The Subcommittee received contradictory evidence on how the definition is applied in practice. The Physician’s Guide prepared by HRDC states that “‘prolonged’ means that the disability will prevent your patient from going back to work in the next 12 months or is likely to result in death.”⁵⁵ On the other hand, we heard evidence that this interpretation is inconsistently applied over time and across the country. The panel members who adjudicate appeals submitted a report that told us that they have encountered individuals who are “severely” disabled for a definite period (up to a few years), but that the disability may not be of indefinite duration. When an individual returns to work, a CPP(D) application or appeal may be outstanding and, therefore, not considered prolonged according to the Canada Pension Plan or its administrators. The appeal tribunals have granted benefits for what they call these “closed periods” but believe that the legislative authority to do this is unclear.

The issues most burning in my medical practice were not addressed. That is that applicants have to be “permanently” disabled to qualify. It says prolonged in the initial application but in the appeals process it is clear that “permanent” is what is meant. The patients I see who have severe, chronic but indeterminate disorders like Chronic Fatigue Syndrome, Fibromyalgia and Multiple Chemical Intolerance where some people get better or have long remissions never get approved because of the possibility however remote that they may get better, yet many cannot work for long periods of time sometimes for ever. How are they to survive in the meantime. My patients lose all their possessions, use the food bank and live in poverty at the very time when they should be accessing adjuvant medical care, excellent nutrition, attending educational and supportive groups, resting, etc. The emotional impact of this makes them sicker, sometimes beyond the point of recovery once their case is finally approved. There has to be a better way to consider these types of applicants. (Eleanor, AB, E-Consultation participant)

Along with doctors and advocates, a fair number of participants in our online consultation expressed frustration particularly with the process of medical evaluation and decision making and also with the evaluation by “assigned” medical experts or nurses affiliated with the Pension Appeal Board and Review Tribunal. With regard to disability assessment, they argued that these medical professionals:

•	do not always complete an in-depth assessment of the medical condition of applicants or appellants to determine disability and often spend only a few minutes with an appellant;

•	do not systematically consider other medical evidence presented by other medical professionals who may have a much longer patient/doctor relationship and a better appreciation of the disabilities of a person and whether such a person can maintain employment or not;

•	do not use a “real world test” to determine disability (this relates to whether, or to what extent, an individual’s particular life circumstances in relationship to disablement should be taken into account); and

•	make arbitrary decisions that ultimately may have a huge impact on the future quality of life of appellants who are completely at their mercy.

… it’s hard for me to understand how — I don’t think it’s fair to expect how a physician can make a determination whether someone who perhaps has difficulty walking is going to be able to perform any other different functions in our society, for the purpose of their short, typically 10-, 15-minute interview. (Dr. Michael Schweigert)⁵⁶

A MAJOR INVESTIGATION into the doctors to whom we are sent for evaluation must be done. In my case, Dr. xxxx of Toronto showed no compassion, little knowledge of the disease, made me spend most of my evaluation filling out forms and spent only about 15 minutes with me. He didn’t even take my blood pressure!!! He did some very weird touching and did nothing close to the types of evaluations that I had had by 3 other CFS doctors, all of whom were well aware of his “working” for the government. … His location, about a 2-hour drive from my home was also complained about. I strongly requested that a doctor closer to home be used, but the person in charge assured me that it would be best if I saw him as he may be able to give me “insight” I had not previously received. He did give me some insight — that, like any insurance company, CPP uses certain doctors that apparently give the answer they want — DENY!!! Why is it that when many doctors evaluate me and say that I am too ill to work, have CFS and should be eligible for CPP, THEIR WORD ISN’T GOOD ENOUGH?!? (Judith, ON, E-Consultation Participant)

For the last five years I have been advocating on behalf of individuals who have been denied CPPD benefits. … My greatest concern is with the medical adjudication of the initial application and the Appeals and Reconsiderations stage. … I have seen cases where the medical adjudicator takes a sentence from a medical report and uses only part of it to make their case. If a statement is taken in part the meaning is often altered. For example if a person has experienced an exacerbation of symptoms but they are not going to receive steroids because the attack does not warrant such a high-risk intervention, it does not mean that the person’s symptoms are not disabling, it simply means that the physician and/or patient chose to wait out the attack instead of using a medication that has significant side effects! I have seen numerous cases where the medical adjudicator has made statements like; “the AR has refused treatment”; “the AR did not require medication for mild attack” when in fact the information in the report clearly states that the side effects outweigh the benefit of treatment. I struggle to understand how it is ethical for medical adjudicators to make personal interpretations when the facts are stated clearly in the report. I also struggle to understand how a nurse who has never met the applicant can make a determination over a physician who knows the patient. I believe it is the responsibility of the medical adjudicator to contact the physician when there is strong evidence presented but the medical adjudicator has some apprehension about making a decision. I have often wondered if there is an incentive program for medical adjudicators who deny X amount of applications! I think a lot of work needs to be done in the area of training for medical adjudicators at CPPD. (Anonymous, AB, E-Consultation Participant)

The reality is that certain individuals with conditions or disabilities may qualify for the CPP disability benefit in one region of the country while in other regions an individual with the same condition will be deemed ineligible. (Dr. Dana Hanson, President, Canadian Medical Association)⁵⁷

Recommendation 3.7

The Committee recommends that HRDC immediately commission an independent evaluation of how the “severe and prolonged” eligibility criteria for CPP(D) are applied by CPP personnel in making decisions about eligibility. The Committee further recommends that the results of this evaluation be submitted to the CPP Disability advisory committee (see Recommendation 2.2) for discussion and recommendations no later than June 2004.

Recommendation 3.8

The Committee recommends that the Government of Canada amend the Canada Pension Plan to define “prolonged” for the purposes of establishing eligibility for CPP(D) benefits as any period of 12 months or longer regardless of whether an individual has returned to work prior to the approval of his/her application or appeal.

3.2.2   Adding More Gatekeepers

Many comments raised the question of whether physicians should be the only gatekeepers to CPP(D) or whether their assessments should be supplemented by other medical professionals who may better be able to assess the individuals according to the criteria that determine eligibility for the program’s disability benefits.

The diagnosis names an illness; it doesn’t tell you what the effect of it is. Indeed, one of our other recommendations is to encourage the department to do much more in the way of providing information on functional capacities evaluation, functional abilities tests, etc. We need more information that focuses on a person’s capacity to function, as opposed to a diagnosis of illness. (Anna Mallin, Member CPP Review Tribunals)⁵⁸

We think that there’s also a problem there in the process in terms of the amount of consideration for health professionals and other people who may be involved in the treatment of that individual instead of just the physician who fills out the form or someone hired by the pension appeal board to do an assessment of the client who’s never actually met the client before or in some cases are only looking at documentation without even meeting the client.

We think if there’s a physiotherapist or speech therapist or whatever who’s been involved they should be able to submit information if they wish. Also perhaps an advocate could put all of that information together to combine the cumulative affect and then have the doctor sign off as agreeing with the whole file. (Randy Dickinson, Executive Director, Premier’s Council of New Brunswick)⁵⁹

Recommendation 3.9

The Committee recommends that qualified health care professionals in addition to physicians be allowed to provide medical assessments for the purposes of determining eligibility for the CPP(D) and to complete  application forms.

3.3       About the Real World

Policy issues about the nature of the definition of disability and its interpretation have been making their way to the Federal Court of Appeal for clarification. Some participants in the online consultation referred to the Villani case in which the Federal Court of Appeal issued a judgement regarding the definition of severity.⁶⁰ The Court concluded that this provision in the CPP definition of disability has been inconsistently and unfairly applied. It also stated that the “provision must be interpreted in a large and liberal manner, and any ambiguity flowing from those words [in the definition] should be resolved in favour of a claimant for disability benefits.” Following up on this statement, the Court argued that a “real world” approach should apply to the severity requirement in deciding upon eligibility for CPP(D). In the Court’s view, decisions about an applicant’s eligibility should take into account “the circumstances of his or her background and medical condition.”⁶¹ Our online consultation participants and witnesses agreed.

A determination of disability which does not consider the whole person and his/her circumstances in their entirety, assessed against the complete definition of disability as stated in the legislation is, in my opinion, simply unacceptable. (John, AB, E-Consultation Participant)

We’d also like the program to recognize that a person’s ability to work cannot just be measured by physical evidence, that there are psycho-social factors that are really important and need to be taken into consideration. HIV is a terminal illness. It’s also an illness that is associated with a large amount of stigma and discrimination. (Ainsley Chapman, Program Consultant, Canadian AIDS Society)⁶²

3.3.1   CPP(D) and the “Real World”

CPP(D) guidelines on including or excluding “socio-economic” factors have changed over the years. In 1989, ministerial guidelines provided for consideration of “socio-economic” circumstances in resolving the issue of eligibility. These were rescinded in the 1990s as a result of the concern about mounting CPP(D) caseloads while medical criteria remained unchanged.⁶³ Yet, the CPP(D) Physician’s Guide published in 2002 states that while medical information is key, eligibility is based on an assessment of the whole person and that the program considers factors such as age, education and work history. CPP reserves the opportunity to consult with employers, schools and other third parties who may be able to provide additional information on functional capacity. The Physician’s Guide, however, also states that in making eligibility decisions “CPP does not consider socio-economic factors, such as the unemployment rate or the availability of work.”⁶⁴ The Subcommittee wonders what world CPP program administrators live in if they believe that age, education, skills and work history are not “socio-economic factors”? Why are physicians being given contradictory information about the criteria that are considered in determining eligibility?

Unlike CPP(D) administrators, Canadians are not confused about the “real world.” The issue poll respondents were asked if “we should be more flexible in applying the Canada Pension Plan Disability eligibility rules” to continue to include life circumstances such as age, skills, and education, and to further encompass life circumstances such as where a person lives and the local labour market. A majority of respondents agreed with both sets of circumstances. Eighty-two percent of issue poll respondents either agreed or strongly agreed that we should be more flexible in applying the Canada Pension Plan Disability eligibility rules to continue to include life circumstances such as age, skills and education. Over two-thirds of respondents (71%) agreed or strongly agreed that we should further include life circumstances such as where a person lives and the nature of the local labour market. A breakdown of issue poll results by categories of identification further confirms this broad agreement.⁶⁵ When it comes to going further and including where a person lives and the nature of the local labour market, however, only 36% of issue poll respondents who identified themselves as employees in the insurance business agreed or strongly agreed with this proposal (29% and 7% respectively).

I am 61 years old. I am first of all hard of hearing with a 60% to 90% hearing loss. Next I have had four heart attacks. The problem is I am still capable of working. However I tire easily. … I feel I should be able to collect disability as I paid in to CPP all my life and was never unemployed since I was 18, but who is going to hire a 61-year-old hard-of-hearing person with heart condition? (Anonymous, E-Consultation Participant)

My ex-wife has had hearing problems for a number of years. In the year 1999 she lost her hearing completely. She worked for VON as a nurse practitioner. She could not work any more due to the fact she couldn’t hear and had difficulty communicating with patients and doctors. … She also applied for CPP disability benefits. The initial claim was denied. This was appealed to a tribunal. The tribunal in May 2000 also denied the appeal stating that while the hearing loss was prolonged it was not severe. They further opined that she was capable of finding any work regardless of what that was, or how much it paid. … My ex-wife has been made to feel like she was trying to beat or cheat the system. She has never been out of work and has paid into the plan all her working life. … These tribunals must take into account the claimants training, experience, education and age in terms of what type of productive employment might be available. They should use the “real world test” that many of the courts have done. … She has been forced to take a lesser-paying job. She has been made to feel less than human during this whole process and clearly there has been no justice done here. (Alex, ON, E-Consultation Participant)

Recommendation 3.10

Given the inconsistency in CPP(D)’s program administrators’ understanding of “socio-economic” factors, the Committee recommends that CPP(D)’s definition of disability be revised to explicitly include the decision of the Federal Court of Appeal in the Villani case. All CPP policies, manuals, administrative procedures, medical evaluations, and information to the medical professions and to the public should consistently and explicitly incorporate the spirit of the Villani decision.

3.3.2   Interpreting “Not Regularly Able to Pursue any Substantially Gainful    Occupation”

According to the CPP, a disability is considered severe only if an individual is “incapable regularly of pursuing any substantially gainful occupation.” Each of these words has been interpreted by HRDC to guide physicians in making their medical assessments and to decide an individual’s eligibility for CPP(D). Some witnesses and participants in the online consultation expressed concern with the interpretation of the eligibility criteria requiring that a person have a physical or mental disability that is “severe” and “prolonged” and how it impacts on the determination of whether an individual has a capacity to work.

In the Villani case, the Federal Court of Appeal, in judging whether an applicant for the CPP(D) can pursue “any” occupation, concluded that a decision about eligibility must look at how the other elements of the definition of disability — “regular,” “substantial,” “gainful” — also applied to an individual. In the words of the Court:

Requiring that an applicant be incapable regularly of pursuing any substantially gainful occupation is quite different from requiring that an applicant be incapable at all times of pursuing any conceivable occupation. … [T]he hypothetical occupations which a decision-maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience. … Employability occurs in the context of commercial realities and the particular circumstances of an applicant.⁶⁶

According to the experiences of several participants, it appears that some decisions to deny CPP(D) benefits at all levels of the application and appeal process are based on the more restrictive interpretation of “an applicant be incapable at all times of pursuing any conceivable occupation” rather than on a more contextual interpretation that would take into consideration the factors set out above by the Federal Court of Appeal. We were also told that physicians are frequently unaware that their medical assessments will be used to determine employability.

I had already worked for 30 years and raised my family single-handed as a single parent and now when I was sick and needed it I was not eligible for CPP. The board thought I could still do “something.” The fact that you have to go on welfare first before you can get any money out of CPP that you have paid in over the years is also devastating to a person with a strong work ethic. I think CPP should review their criteria for alternative work if you become too sick to continue on the work you have been doing. You may be able to do some other kind of work but you might not be able to make a living from it. It was a horrific experience for me and one I will never forget. It caused me mental and physical anguish. (Anonymous, ON, E-Consultation Participant)

CPP’s edict that says you are not disabled if you can work in “any” substantial gainful employment means that if CPP says you can do some other type of work (even though you were already in a sedentary type position), then you can “work,” and you are, therefore, “employable.” This is NOT the Real World, people!! Employers that will allow you to come and go, allow you to be off sick more days than you can attend at your job, allow you to work perhaps 15 minutes at a time and provide a place for long rest periods in between just do NOT exist, and is certainly not “gainful” nor “substantial.” (Sandy, ON, E-Consultation Participant)

The other thing that really bothered my husband is that because he had a very high-paying, labour-intensive job as a welder, he paid high CPP premiums. Now he cannot access funds from the place that readily took his money while his health was failing. He has very little formal education and is almost illiterate. Yet CPP indicated that he should be ready to take any other type of work available. This man has been working in the maintenance-welding field since the age of 16 (40 years). He knows of no other type of work! How unfair! (Anonymous, E-Consultation Participant)

What we heard from our witnesses to a large extent contradicts the information that CPP(D) is providing. Its Physician’s Guide provides the following definitions:

Incapable: Not able or fit to pursue any substantially gainful occupation as a result of the disability.

Regularly: The capacity to work is sustainable.

Pursuing: To actually engage in an occupation — not to be confused with looking for work.

Any: Work that a person might reasonably be expected to do by virtue of:

•	possessing the necessary skills, education or training;

•	having the capacity to acquire those necessary skills, education or training in the short term; and

•	having reasonable access to suitable employment, given the individual’s limitations.

Substantially gainful occupation: Work that is productive and profitable. This is measured in part by a dollar amount that is set annually and against which a person’s earnings are compared. However, earnings alone do not determine whether the regular capacity to pursue work exists. CPP also assesses elements of functional capacity and productivity.

We are disturbed by the apparent discrepancy between CPP(D)’s guidelines and its practices (as demonstrated by our witnesses and by the online consultation participants). We also note the subjective nature of all the definitions listed above. Science has its limitations. It seems to us that panel members who hear CPP(D) appeals have a better appreciation of what is involved:

The most difficult dilemma facing Appeal Tribunals is how to make an objective finding as to whether a physical or mental impediment is disabling to a degree that an Appellant is incapable of pursuing “a substantially gainful occupation” on a “regular” basis. …The Task Force strongly recommends that CPP legislation (particularly section 42) regulations and guidelines reflect an interplay between medical and employability evidence. …⁶⁷

We are left to conclude that something is wrong. Is CPP(D) not communicating with its clients? Is CPP(D) only paying lip-service to its own definitions? Is the CPP(D) system rigidly administering the definitions so that the flexibility that seems to be set out in its public guidelines is eliminated?

Members of the Review Tribunal Panels that appeared as witnesses helped us to gain a better understanding of what is going on here. The report that they tabled with the Subcommittee states that:

Currently “objective” medical evidence of the seriousness of a person’s disability is given more weight in many determinations [of eligibility] by Human Resources Development Canada. Independent assessment of non-medical factors affecting an Appellant’s employability are rarely offered by HRDC adjudicators when rejecting applications for disability benefits.⁶⁸

They also told us that the United States Social Security Act had moved forward so that the onus was on the Department to prove that jobs exist in the national economy that the claimant could perform.

Recommendation 3.11

The Committee recommends that HRDC amend its administrative practices so that no application for CPP(D) shall be deemed completed and assessed for eligibility until it contains a full and complete functional assessment of the applicant that specifically discusses non-medical factors that affect the individual’s employability.

Recommendation 3.12

The Committee recommends that HRDC conduct a detailed evaluation of how the CPP(D) program administrators are applying CPP(D) legislative guidelines in light of recent Review Tribunal and Federal Court decisions. The results of this evaluation should be submitted to the CPP Disability advisory committee (see Recommendation 2.2) for discussion and recommendations by June 2004.

3.3.3   Kids, Parents and School in the “Real World”

In the “real world”, people drop out of the labour force temporarily to have children, to provide care for spouses or parents, or to go to school or training courses. Currently, some of those who leave the labour market and who later become disabled can take advantage of a child-rearing dropout. This exempts the years that they looked after a child under age seven from the calculations of their minimum qualifying period for CPP contributions. They will also not be penalized by receiving a lower retirement pension. The members of the Review Tribunal Panels told us that because this is calculated in total years, starting at the beginning of a calendar year, a mother whose baby is born in mid-January is penalized because she is not allowed the dropout until the following calendar year.

Both our witnesses and participants told us that the lack of more broadly based dropout provisions in CPP(D) operates to the detriment of those seeking to maintain ongoing eligibility for CPP(D). Others have not sufficiently contributed to CPP because they were caring full time for family members with disabilities before becoming disabled themselves. Still others have failed to qualify because they have gone to school. We believe that none of these “real life” situations should jeopardize eligibility for those who must apply for CPP(D).

I am a 27-year-old male and I applied for disability benefits approximately 3 months ago and have been denied because I have attended school in the year 2000 thus (as I was told on the phone) making my contributions not enough to qualify for benefits. I am 27 years old and was diagnosed with Acute Leukemia in April more recently undergoing a bone marrow transplant in July. While I am now sorry that I had the awful luck to incur an illness at an age and time in my life that denies me the chance to receive any government assistance, I fail to see how my age or my decision to attend schooling (to better my lot in life so I can get a higher-paying job and pay more tax) should have any bearing on whether I qualify for government benefits. Furthermore had I been lucky enough to qualify for benefits they would have been minimal (though appreciated) due, again, to my age. Because a 27-year-old has not contributed enough to “The Plan.” How are a disabled 50-year-old’s financial needs different then mine? They are not. All disabled Canadians should be covered in times of crisis — yet I am not. (Randall, AB, E-Consultation Participant)

For many years, I accepted only part-time and term employment, as I had a full-time occupation of caring for an invalid parent. During the last 5 years of her life, my mother required almost around the clock care... leaving for short periods even to do grocery shopping and the like required careful planning, and the help of other family members.

I chose to do this as the only alternative to placing her in a long-term care facility... a move that, I might point out, saved the health care system quite a bit of expense for her care, and over an extensive period of time. I understood at the time, such a move would require a period of struggling to upgrade my qualifications while my prospects for employment included only very low-paying employment, after her death, and that public opinion took a dim view of such an enterprise... but I remain convinced it was the right thing to do.

As things would have it... I, myself became disabled (extensive and varied complications of congestive heart failure, and the resulting edima, that affects, among other things, my spine). Because of the inability to accept CPP-covered employment, despite working in my chosen field as a health care aide 24/7, 365 days a year... I was ineligible to apply for CPP disability payments, and instead, am now receiving Ontario Disability benefits. (Donald, ON, E-Consultation Participant)

About two months ago I had a woman phone. She had worked for a number of years and left the workforce because she had a son who had a significant disability. She chose to stay home to look after her son and to provide support. She was out of the workforce for a considerable period of time. Her husband then became ill and was no longer the primary support to the family. He went onto CPP disability. She went back, got training — entered the job training programs provided — got a full-time job, and then she was diagnosed with terminal cancer. In the meantime, the eligibility and contributory period had changed. She was no longer eligible for CPP disability and she would not apply for social assistance.

It was just one of those cases where the individual had done everything that we would expect them to do. The family had decided to provide support to their son. She chose to go back to the workforce when her husband was unable to work. She got training. She got a job. She did all of that. Then she found she had terminal cancer, and she was three months short of the four of six because she was out for those periods. (Laurie Beachell, National Coordinator, Council of Canadians with Disabilities)⁶⁹

Some participants suggested that the federal government should also consider expanding eligibility to those who may not have sufficiently contributed to the plan as a result of staying at home or working only part time to raise their children or to care for family members with disabilities.

In the particular case of the woman I represent, she dropped out of the workforce after marrying late in life. Not having a child herself, she cared for her stepson for six months when he was dying of renal cancer. He would have been in an acute care setting had he not been at home. For six and a half years she cared for her mother, who was dying of diabetes and other complications. Again, she was at least eligible for chronic care, if not more. Every day that she was home caring for her stepson or for her mother, she was saving the government somewhere between $600 and $1,500 a day. She was administering very heavy care to her relations. She was obviously making a major contribution to the well-being of not only her relations but also the community at large. For her pains, she had her Canada pension reduced by a total of 20%. She became disabled as a consequence of caring for her mother and was not eligible for CPP disability.

The point again is that if she were providing care to a child under the age of seven, she wouldn’t have had her pension reduced at all. She would not have been disentitled to CPP disability, and her position in life would be significantly different. (David Baker, Bakerlaw)⁷⁰

Finally, a small number of participants indicated that some persons with disabilities who are between the ages of 60 and 65 and no longer able to work are refused CPP(D) benefits and redirected to CPP to apply for an early retirement pension. The individuals in these cases may actually end up with less income than if they received CPP(D) benefits for a number of years and applied for their retirement pension at age 65. It was recommended that persons with disabilities who are between the ages of 60 and 65 be entitled to CPP(D) benefits if they meet the eligibility criteria like any other younger Canadian.

Consideration for applicants between the ages of 60-65 who are often refused because they may qualify for CPP early retirement & would cost less for the government. They are still disabled & should be accepted as disabled. (Joan, ON, E-Consultation Participant)

Recommendation 3.13

In keeping with the Government of Canada’s commitments in the Skills and Learning Agenda and in its promotion of family-friendly workplaces, the Committee recommends that HRDC incorporate dropout provisions in CPP(D) for attending school or training, and for caregiving of family members. These new dropout provisions should be the same as the child-care dropout provisions.

Recommendation 3.14

The Committee recommends that all CPP(D) dropout provisions include identical provisions for allowing partial years in determining the duration of the dropout.

Recommendation 3.15

The Committee recommends that CPP(D) applicants 60 years of age and over be entitled to CPP(D) benefits if they meet the eligibility criteria instead of being encouraged or forced to apply for CPP retirement benefits. CPP(D) administrators should be instructed accordingly.

3.4       Four Out of Six: A Magic Number?

Since the inception of CPP(D), workers have had to contribute to the plan for a certain minimum period of time in order to collect benefits. In 1998, the eligibility criteria of CPP(D) were changed so that the minimum contributory period is now four out of the last six years.⁷¹ The Subcommittee was interested to find out whether CPP(D) should be more flexible in dealing with people who have contributed to the plan over a significant period of their working life (e.g., 10 or 20 years) but who do not meet the four-out-of-the-last-six-years rule. A vast majority of respondents to our Issue Poll (90%) either agreed or strongly agreed that CPP(D) eligibility rules should be more flexible for these people. A breakdown of issue poll results reveals a strong support for changing the four-out-of-six contributory requirement among all categories of respondents.⁷²

Many members of our group feel strongly that with gradual-onset disabilities, or for people who, as they get older, are outside the workforce for some period for caregiving and so on — we are seeing people who have contributed for 25 years who cannot meet the “recent” test because they haven’t contributed in four out of six. ⁷³ (Harry Beatty, Canada Pension Plan Working Group of Ontario)

The requirement that CPP claimants must have worked four out of six years prior to disablement discriminates against women, who are more likely to be employed temporarily or part-time. Exclusion of the child-rearing years, while useful in eliminating the low-income years for determining eligibility, prevents women from ever reaching parity with men who do not use those years to care for small children. (Sally Kimpson)⁷⁴

I applied for CPP after working many years and contributing. My doctor encouraged me to do so. He sent me to some specialists who wrote their findings and opinions. After being diagnosed with Fibromyalgia, Sleep Apnea and Osteo Arthritis we forwarded these results to CPP. … My first application to CPP was back in 1993 I think. After the 3 refusals and the Tribunal, which all took about 3 years, I still couldn’t work. In 2002 I was informed by someone that Fibromyalgia was now being recognized by CPP and was encouraged to apply again. This time I was told that I had not worked or contributed for 4 of the past 6 years and so I didn’t qualify even though my condition has worsened and I still can’t work. (Anonymous, E-Consultation Participant)

The current requirement to contribute for four out of the last six years in order to be eligible for CPP disability is not fitting for people with disabilities because of fluctuating conditions, etc. (Mary Ennis, Vice Chair, Council of Canadians with Disabilities)⁷⁵

The Subcommittee agrees with the panel members of the Review Tribunals who told us that the four-out-of-six rule actually introduces a type of systematic discrimination against people who have certain episodic illnesses where there are ups and downs. Over the course of these illness, periods of wellness may become shorter and periods of illness longer. As a result, many of these people do not qualify for CPP(D) eligibility based on the contributory criteria.⁷⁶

Canadians gave us frank opinions of what they would change. Some participants suggested a limited time frame for the number of previous years an individual would have had to contribute to CPP in order to establish eligibility. For example, some participants in our online consultation recommended that a person should have contributed to CPP for 5 years in the last 10 years to be eligible for CPP(D) benefits. Others suggested that HRDC should revert to the two-out-of-the-last-three-years contribution rule that was in place prior to the current requirement.

… contribution requirements [should] be amended so that applicants are not penalized for not making consistent contributions to CPP or for not submitting an application at the time the person became disabled or for becoming disabled after leaving employment.

One way to help accomplish this would be to reinstate the 5 out of the last 10, or 2 out of the last 3 year rule. (BC Coalition of People with Disabilities, BC, E-Consultation Participant)

There should be no disqualification from CPP(D) because of length of time from last contribution till disability. If a person has paid CPP for a set number of years (that number can be determined) than he/she should be eligible. (Brian, NFLD, E-Consultation Participant)

The Subcommittee notes that the minimum contributory requirements to establish eligibility for the CPP(D) are more stringent than the requirements for other supplementary benefits. We believe that Canadians with disabilities should be afforded equitable treatment.

Recommendation 3.16

The Committee recommends that the Government of Canada amend the Canada Pension Plan after paragraph 44(2)(a) so that it reads:

(i)	for at least four of the last six calendar years included either wholly or partly in the contributor’s contributory period or, where there are fewer than six calendar years included either wholly or partly in the contributor’s contributory period, for at least four years; or

(ii)	for at least one-third of the total number of years included either wholly or partly within an applicant’s contributory period but in no case for less than three years, or

(iii)

for at least ten years; or77

(iv)	for each year after the month of cessation of the contributor’s previous disability benefit.