Socio-Legal Studies Speaker Series - Medical Expertise and Applicant Testimony at the Ontario Social Benefits Tribunal

The Socio-Legal Studies Speaker Series Winter 2021 presents Professor Soren Frederiksen: Medical Expertise and Applicant Testimony at the Ontario Social Benefits Tribunal

Thursday, January 21, 2021 - Zoom 13:00—15:00 Eastern (U.S. & Canada)

ABSTRACT: The Ontario disabilities support adjudication system provides a limited place for the voices of applicants to be heard by allowing oral testimony as part of its appeals process (Rules of Procedure for appeals to the Social Benefits Tribunal (January 2016) at 7.7 - 7.10). Other jurisdictions in Canada also provide limited scope for the testimony of applicants as part of their appeals process (e.g. in British Columbia, see s. 2(4)(b) of the Employment Assistance Act [SBC 2002] Chapter 40).

The Ontario Disability Support Program Act requires medical evidence and encourages claimant’s testimony during appeals, but is less encouraging during the initial application. Medical evidence that verifies someone’s disability is required in Ontario. Decisions are made administratively, but may be appealed to the Ontario Social Benefits Tribunal where oral testimony is allowed.

At both these levels, decision makers are asked to balance the applicant’s impairments against the standards of impairment required to qualify for benefits but also to determine whether those impairments have been adequately verified by the appropriate professionals.

This study that forms the first part of this paper focused on disability claims that depended at least in part on disability experienced due to migraine pain. Migraine pain was chosen because it often lacks other physical symptoms that provide medical evidence of a cause for the symptoms experienced by the claimant. In these cases, it seems, powerful and evocative testimony by the claimant can succeed where the medical evidence supporting that claim is weak. However, what is most striking is how the construction of the benefits adjudication process silences the voice of the applicant until the appeal process. In all the earlier stages of the adjudication process it is the voices of medical professionals who are heard. The second part examines how differences in adjudication process provide or do not provide a place for the voices of the applicants for disability support to be heard in different jurisdictions in Canada. The focus was primarily on the legislated adjudication mechanisms.

The paper concludes by examining how Canadian disability regimes may offer a “window” for applicant testimony and discusses the potential importance of testimony and the inclusion of the applicant as an active participant in the adjudication process. The goals of including the applicant in the decision-making process go beyond merely ensuring just decision-making, as we can see by looking at the assisted decision-making literature. By and large, disability adjudication in every Canadian province is a process that is dominated by medical professionals. As illustrated in the Ontario appeal decisions, the success or failure of an application is largely driven by the medical report provided by the applicant’s doctor, but in a few instances, testimony can allow medical information to be reinterpreted by an appellate tribunal, to the applicant’s benefit.