Administrative Justice and DISABILITY Claims – NOT A PRETTY PICTURE

GUEST POST  

The  following post is a report from the trenches, as it were, by Donald J. Porter, an advocate who represents individuals disabled from injury or disease who, unable to earn their own livelihood, must apply for the benefits society has deemed necessary in such circumstances.

His caseload includes in particular, claims under the CCP (Canada Pension Plan) provisions for disability benefits, and under the Ontario Workplace Safety and Insurance Act (WSIA) for individuals disabled from injuries at work.

The post was presented to me as a “comment” on an earlier post of mine but it is clearly deserving of more prominence than that, and I am therefore presenting it here as a principal post under the site’s “Issues” category.

It is a long post, but I assure you, a riveting one.

RE

D. J. PORTER:

Bill C-38

On April 26, 2012, the Government of Canada introduced Bill C-38 in the House of Commons. The Bill was subsequently enacted as the Jobs,Growth and Long-term Prosperity Act, SC 2012, c.19.

This Bill contained drastic changes to many federal institutions, including the abolishment of the Office of the Commissioner of Review Tribunals, the Pension Appeals Board and the Board of Referees for Employment Insurance matters.  These three bodies were abolished as of April 1, 2014 and replaced as of that date by the new tribunal – the Social Security Tribunal (“SST”).

But each of these three bodies in fact ceased to hear cases a year earlier – on April 1, 2013.

The one-year transitional period (in which zero cases were heard) was not legislated and in simple terms offends common sense.  No-one, except perhaps the Minister of Finance and Prime Minister, seems to know why the processing of all cases was suspended for one year. In fact when certain members of the Progressive Conservative caucus were asked, they had no idea.  One PC backbencher referred to it as “administrative hijacking”.

The SST is comprised of two tiers; the second tier is designed to replace the 36 magistrates who made up the Pension Appeals Board.  Appointments are made by the Governor in Council on recommendations by the Queen’s Privy Council of Canada.

Six lawyers have been appointed to replace the 36 magistrates formerly assigned to adjudicate the appeals that will now arise from the proposed SST Hearings.  Eighteen individuals have been appointed to replace the 100, three-member panels that previously heard appeals arising from final CPP decisions.

The SST is mandated to provide a fair and impartial quasi-judicial appeals process under the Employment Insurance Act, the Canada Pension Plan and the Old Age Security Act.

As of April 1, 2014 there was a backlog of appeals exceeding 7,000 in addition to another 3,000 cases which were added during the one year hiatus.  The CPP typically required 12 months to render an initial and reconsidered decision. Another ten months was typically required for a CPP final decision to reach the Tribunal.

Accordingly, at this moment there are in excess of 7,000 individuals who applied for CPP disability benefits at least 34 months ago and haven’t had their cases scheduled for a Hearing. As of today (April 10, 2014) no information has been released by the SST concerning when the legacy cases will be heard.

At what point is justice considered to have been ‘denied?’ 

What of those who die while waiting for a SST tribunal to convene to rule on whether the impairment or disease (which caused the death) was ‘severe and prolonged’?  Is the estate to seek damages from the SST for the delay?  What of the unnecessary financial stress and anxiety placed on the deceased applicant and his family while he waited; stress and anxiety that arguably accelerated the fatal condition?  Is the brow-beaten, penniless widow supposed to launch a Charter challenge with respect to justice delayed is justice denied?   What is the point to Supreme Court decisions if government themselves disregard or manipulate the findings and disregard the principles?

When presenting Bill-38 why did the Finance Minister direct that the Social Security Tribunal not convene Hearings for 12 months?  Why were the operations of the existing tribunals suspended during those 12 months?

How can Administrative Justice be taken seriously when decisions made by three Ministries have now been combined into one “super tribunal” that now employs 70% fewer decision makers?

Does it concern anyone at all that not one of the Vice Chairs in the Office of the Commission of CPP Review Tribunals was appointed to the SST?

Was not the main intended purpose of administrative tribunals to free up court time and provide more timely justice?  How can one possibly justify the ongoing existence of administrative tribunals in the present format when it now takes 4-5 years to reach that stage of adjudication?  Does Blencoe v. BC Human Rights Commission not speak to timely adjudication?

Respectfully Mr. Ellis, you point to 11d of the Charter as the vehicle which is being abused (my word) by present day administrative tribunals with respect to that which constitutes impartial and independent panels.  You reference the ‘Valente’ decision as the authority.  It would appear that a main concern is the tenure of decision makers; your concern in part is the appearance or existence of impropriety with respect to ensuring that an administrative hearing is impartial when those in decision making positions are often fearful of reprisals by Government or powerful friends of Government.

Do you really believe that those who control administrative tribunals could give a shit what the Supreme Court said concerning ‘impartial and independent tribunals?’

Did they consider the impact on applicants of eliminating the operation of these three administrative tribunals for one year, or were the concerns more focused on the amount of interest income they could generate during the one-year hiatus by using other people’s money – interest income that is not included in any of the affirmative decisions.

Who is going to hold them accountable?  Is it a penniless disability applicant who has no fight left after years of being worn down by the front line adjudicators – adjudicators who seem to believe that their job is to twist, bend or completely disregard information in an effort to support a negative decision?  Is that the applicant who is expected to launch a constitutional challenge concerning the Social Security Tribunal’s failure to act in a timely manner, or to challenge whether administrative tribunals conform to 11d of the Charter with respect to impartiality?

Allow me to explode a popular fallacy: the term used when an applicant is successful in qualifying for disability benefits.  They are said to have been given an “award”.  It is arguably one of the most inappropriate words for describing an affirmative decision; it conveys the impression that a goal has been met, that somehow the recipient can now rest easily that they no longer have to be concerned about money, that they are now free from the rigors of employment.

While I’m sure that there are some who manipulate the process for their personal gain, the vast majority of applicants for CPP or WSIB benefits do not achieve any level of happiness or comfort or contentedness subsequent to an affirmative decision.

The fact is, Mr. Ellis, “successful” applicants seldom fare well following receipt of benefits.  By no means are they uplifted; the majority (of my clients), after having endured years of ruthless decision making by front line adjudicators, and after subsequently enduring the appeals processes of a quasi-judicial tribunal find themselves estranged from spouses and children, so deep in debt that they are unable to climb out, almost all have lost their homes, and friends tend to avoid them.  Many are thoroughly hooked on various narcotics for pain.

As a consequence of enduring our “system” of administrative justice, many end up under psychiatric care and ingest large amounts of anti-depressant medication; the primary side-effect is an enormous weight gain.  The government has successfully ‘broken’ these men and women; there is a complete absence of well-being; instead: loneliness, despair, and the fear of the phone call or letter that will cut off their benefits is what dominates their thought patterns.

Those who receive negative decisions after having endured the process frequently experience all of the same except they are reduced further by having now to apply for that which is akin to charity, Social Assistance.  Now their lives are placed in the hands of Social Workers who arbitrarily dictate the manner in which they are to live, demand this or that under the threat of a suspension of benefits.  These are hard working men and women who developed a condition or were injured at work and for so doing experience that which is akin to being dragged through the centre of town while being booted and spat on.

Somewhere during the evolution of social benefits someone came up with the concept that individuals who have no alternative but to apply for disability benefits should be subjected to the harshest possible treatment and, to dissuade others from taking that route, the punishment must be relentless; ironically this appears to have commenced at about the same time as did administrative tribunals and passage of the Charter.  What the Charter gave our citizens the front line decision makers took away.

Since 1988 I have had nine such abused clients who I am convinced committed ‘accidental death’ following receipt of the final negative decision. These were men who in the end could find no way of supporting their family other than through life insurance.

The similarity between them is the age bracket. If you happen to sustain a permanent injury or develop a serious medical condition that prevents employment prior to reaching the age of 45, the likelihood of receiving full benefits reduces substantially.  The reason for that in my opinion is the cost to the system of paying full disability benefits for 20 years or more (WSIB benefits cease at age 65).  It’s the impact of such “awards” on the system’s unfunded liability that causes the system to adopt a particular culture of denial regarding such claims.  I’m sure there are many more that have committed accidental death than the nine I know about.

Here is an example of a person who has been waiting for a SST Hearing.  Despite possessing stage 4 liver-cancer, this applicant was denied benefits by the CPP.  He lingered on throughout the one year hiatus in hearings after having endured 2 years at the application and appeal stage.  He passed away in December, 2013.  His case is not scheduled to be heard by the SST as of this writing.

I am in contact with many others in similar situations.  I can assure your readers who feel that those seeking social benefits need to be put through the mill prior to being “awarded” that this gentleman, his wife and children suffered substantially and his wife and children continue to do so.

Another client is a 38 year old recently divorced mother of 2 young girls who had experienced two failed back surgeries leaving her in a walker and who was recently diagnosed with stage 3 cancer of the vagina and rectum.  Despite letters from experts at the cancer clinic who reported that her inability to control urination and defecation was specific to failed back surgeries, an adjudicator at the WSIB found that there was no proof that she did not have control over her bowels or bladder and therefore ruled that her prior sedentary employment remained suitable.

I doubt very much that this lady will be alive for the administrative tribunal.  The CPP also denied her entitlement to disability benefits; you see the CPP are heavily reliant on decisions rendered by the WSIB/WSIAT. In this case the WSIB had found that she was employable.

Another client, 66 years old and a high income earner, had undergone three failed back surgeries 7 years ago in which his spinal cord was nicked leaving him with significant neurological problems in his legs requiring steel braces. In addition he has impairments in both hands. The Tribunal reconsideration concluded that if he could find an employer to accommodate his disabilities he would be employed; and denied all benefits.  That gentleman has lost his family, house, automobile and dog.

A 40 year-old woman who had undergone an 18 minute beating by a crack head while she was working in an addiction centre ultimately took her own life.  Following the beating she came to see me to help her get funds to have new teeth put in; her face was a mess.  The WSIB failed to fund total replacement because after viewing her dental charts it found that she had existing cavities and a rotten tooth or two.  Our personal fund made up the difference for full replacement.

She was sent back to the same facility to work on two separate occasions; each resulted in a further assault. She was then told that she was going to be trained to be a medical secretary; the Adjudicator phoned her regularly to check on her progress in learning to type. The beatings had also caused back and shoulder injuries.  As I said, she took her own life.

A 52 year old man in excellent shape died of a heat stroke while working outside in 92 degree weather; he was accustomed to working indoors in an air conditioned environment. The employer was a provincial government ministry.  His death was denied by the WSIB front line adjudicator as not being work related.  The Ministry of Labour found that the Supervisor was not present and therefore excluded him from providing a statement. I located a video tape of the Supervisor present on the scene and drew that to the attention of the Ministry of Labour.  The death was then ruled work related.

Since 2010, my office’s success rate at the WSIB has declined from 64% to 9% despite the cases being the worst ever since I began in 1988.  I understand from other counsel that their experiences are similar.

I’m sure it’s not just coincidental that the WSIB has currently achieved the highest amount of assets/funds in their investment division than ever before.  I’m also sure that it’s not just coincidental that the CPP disbursement of an enormous amount of funds in 2013 (as a result of allowing for age 60 retirement funds to be processed regardless if one is working or not) occurred at about the same time as the CCP disability decision makers began a wildcat spree of negative decisions and ‘someone’ decided that no CPP cases would be heard for a year.

It seems to me that the remedy is not to create a larger network of administrative tribunals or a Super Tribunal (as suggested in your book) but rather to use the existing network of adjudicators at operating and internal appeals levels to actually award the majority of cases rather than using them as the means of denying or discouraging applicants/workers/veterans.

I realize that this blog was created to discuss administrative tribunals/hearings etc., which is all fine and dandy; however there is a real person and a real spouse and real children (and a real mortgage) that are impacted by each administrative decision; persons, spouses and children whose lives are permanently altered by arbitrary decisions at the operational or internal appeal level of decision-making.

I don’t believe you to be a reckless person with respect to your assertions nor a person who writes a book for mere funds. I also don’t believe that your creation was for any other purpose but to initiate a course correction.  It seems to me Mr. Ellis, and I should preface this by acknowledging that I know very little about the nuts and bolts of the law, that the affirmative Charter challenges concerning ‘impartial and independent’ (or timely decision making) seem to be disregarded in part by those who are responsible for the ongoing administration of quasi-judicial Tribunals.

I have cited a few examples from files that just happen to be sitting on my desk at the time of writing. I have 86 other active cases at present and on average usually 100-120 active cases at any given time; 95% of the cases will be denied at the operating level and first level of appeal.  75% of those cases will be appealed to a tribunal.

Are the vast majority of applicants for CPP and/or WSIB benefits all lying?

The language not transferred from the Bill of Rights into the Charter was; “our right to a fair hearing in accordance with the principles of fundamental justice for the determination of rights and obligations”.  Why was that language excluded from the Charter?   Why has the SCC never defined the ‘impartial and independent’ tribunals that the Bill of Rights has been recognized to require? Do the principles of fundamental justice not require fair and timely adjudication – at all levels?

DJ Porter

 

 

 

 

 

 

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