Proceedings of the Standing Senate Committee on
Social Affairs,
Science and Technology
Subcommittee on Veterans Affairs
Issue 1 - Evidence for January 20, 1997
OTTAWA, Monday, January 20, 1997
The Subcommittee on Veterans Affairs of the Standing Senate Committee on Social Affairs, Science and Technology, met this day at 1:03 p.m. to begin its order of reference to examine and report upon the implementation by the Department of Veterans Affairs of measures to expedite the adjudication of pensions.
Senator Orville H. Phillips (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, today we will hear from two veterans organizations, prior to our visit to Charlottetown to check on the progress or lack of progress on Bill C-67. The first group we will hear from today is from the Royal Canadian Legion. I believe a brief has been distributed.
Mr. Ralph Annis, Chairman, Veterans Service Committee, Royal Canadian Legion: Mr. Chairman, I would like to say, on behalf of the dominion president of the Legion, Joe Kobolak, that I am pleased to have the opportunity to address the committee as it examines and reports upon implementation by the Department of Veterans Affairs of measures to expedite the adjudication of pensions. I am chairman, Veterans Service Committee and I am accompanied by the Director of Service Bureau, Jim Rycroft, and by the Assistant Director of Service Bureau, Ted Keast.
In the view of the Royal Canadian Legion, the overall effect of the changes introduced to the disability pension system on September 15, 1995, is positive. Prior to the implementation of the act, adjudicators received training on the concepts of administrative law, which stressed benefit of the doubt for veterans. When the mistakes have been made, for example, in determining the effective date of an award, the adjudicators have responded quickly and effectively, without necessitating a formal review or appeal. Ministerial reviews of first-level decisions seem to be a potentially useful means to achieve a proper result for disability pension clients. Consequently, a streamlining of the first application process has been achieved.
At the review and appeal level, an extraordinary amount of effort has gone into scheduling hearings to clear the backlog. The Royal Canadian Legion had predicted, in September of 1995, that the capacity of the panels to adjudicate would exceed the ability of the Bureau of Pensions Advocates and service officers of the Royal Canadian Legion to prepare and present cases. Nevertheless, in order to contribute as positively as possible, the Royal Canadian Legion has put together a backlog reduction team with the aim of reducing its appeal backlog significantly by October, 1997.
At both levels, there is concern that the focus on reducing turnaround time will come at the expense of integrity of the disability pension system. To that end, the dominion president has recently written to the Secretary of State for Veterans Affairs, urging him to measure progress of the changes effected by Bill C-67 in terms of those cases processed under the new procedures, not burdened by the inordinate administrative lag times attached to the pre-reform backlog.
In other words, Mr. Chairman, the Royal Canadian Legion wants expediency, but not at the expense of or by sacrificing quality.
The Royal Canadian Legion has now operated in excess of one year under the new system. In October 1996, all dominion and provincial command service officers, together with members of the Veterans Service Committee, comprising senior elected officials within the Legion from across the country, met in Charlottetown for the purpose of assessing and reporting on the changes implemented a little over one year before. The sessions included an on-site walk-through of the first application process as well as briefings by VAC officials on all facets of the new system. This encounter was very positive. The 22 dominion and provincial command service officers and 14 members of the Veterans Service Committee gained an insight that would not otherwise have been possible. This, together with the observations that the service officers have been able to make, having operated for in excess of a year in the new system, permit us to address you today with the hope that refinements to the new system will build upon the foundation already laid.
In a letter dated December 20, 1996, the Deputy Minister of Veterans Affairs Canada, David Nicholson, wrote to the dominion president and advised that the department would be in a position to begin individual consultations with veterans' organizations in late January or early February of this year. It is our intention to raise the same points we bring before you. Having not yet been made privy to the contents of the omnibus proposals, there may be additional points that we will wish to raise, but unfortunately the details of the forthcoming proposals are unknown to us at this time.
A few years ago, passage of the Merchant Navy Veteran and Civilian War-Related Benefits Act addressed many fundamental inequities which the Legion fought to overcome for years. It is understood some perceived inequities for treatment of the merchant navy veterans will be addressed by the omnibus bill, and this is a welcome step.
Let me now address some general concerns. Although departmental officials steadfastly deny it, there is a concern that some of the process changes and their manner of implementation are driven by financial concerns about the amount of compensation that will be paid to pension recipients. Most of these issues are driven by policy rather than statutory considerations.
One example is the hearing-loss policy. We will be visiting Charlottetown on Tuesday of next week to discuss the hearing-loss policy. This is something that has been ongoing now for several years, as a matter of fact. We have an informal study that shows that of 100 hearing-loss applicants who were given a positive decision under the old system, 29 would have been denied compensation if the new system had been used to evaluate their claims. We are concerned that the policy may reflect something other than actual hearing loss considerations.
In response to the changes to the legislation proposed by the Royal Canadian Legion, the answer should not be that the changes would cost too much to implement. Changes that reduce the amount of time and money that has to be spent on administration are laudable, provided they do not affect the integrity and equity of the system.
I now turn to the specific recommendations of the Royal Canadian Legion to address deficiencies that still exist following implementation of the new system. In the letter to the Dominion President on December 20, 1996, Mr. Nicholson states that the department is unable to entertain expensive or complex proposals or ones which may involve an extensive rewrite of a program. He goes on to say that the department is looking for proposals of a technical or housekeeping nature to correct anomalies or inconsistencies in the veterans legislation.
While mindful of this self-imposed constraint by the department, the Royal Canadian Legion still urges implementation of the suggested changes, even though there may be some concern for the financial impact.
The order of the following suggestions is not in terms of their priority, but rather in the order that the issues arise within the legislation. I will address the issue of priority following the enumeration of the specific suggestions for change.
To give my voice a little rest, and since both my colleagues are attorneys, I turn the presentation over to my comrade Jim Rycroft.
Mr. Jim Rycroft, Director, Service Bureau, Royal Canadian Legion: Mr. Chairman, the first concern deals with overpayments. In our brief, we have contrasted section 5(1) of the act as it now reads with section 14(1) of the act as it read before September 15, 1995. I propose to simply talk about the result.
The effect of not bringing forward this provision means that the commissioners of the former system, sitting as an entitlement board, had the power to deal with an overpayment situation. Panel members of the Veterans Review and Appeal Board, sitting as a review panel, do not have this statutory power of their predecessors. While panel members could deal with the issue as an appeal from a decision of the minister at the first level, it is submitted that it is the removal of a right and a benefit not to have this power vested in the Veterans Review and Appeal Board so that they may deal with an overpayment issue without it first being considered by departmental authorities.
It is recommended that a provision analogous to section 14(1) of the old Pension Act be included in the Veterans Review and Appeal Board Act to maintain the right that a veteran had under the old system to have an overpayment situation dealt with at an Entitlement Board, now referred to as a Review Panel Hearing.
The next issue is consequential claims and section 21(5) of the Pension Act. This section does not make it clear that there can be a consequential claim for disability arising from a disability that is already consequential on the initial disability. For example, an injury to a hip may cause a consequential injury to the knee of the other leg as the result of a shift in weight necessitated by the first injury. In turn, the knee now injured may cause an ankle injury. It is not clear whether the degree of assessment for the consequential disability can exceed that of the initial disability.
It is recommended that this section be amended to make it clear that there can be a consequential claim upon a consequential disability. Further, this section should be amended to ensure that the assessment on the consequential disability is not constrained to an equal or lesser amount of the initial disability. The assessment of the disability should reflect the true nature of its medically supportable degree of impairment, whether it is the initial disability or a consequential disability.
Mr. Annis: Before we start on the proportionate pensions of widows, I was with the Canadian Pension Commission for a period of time, and this problem arose on several occasions.
I will not read the pertinent sections of the act. On page 9 of our brief is the resolution by the Royal Canadian Legion. The fourth paragraph on that page is the resolution itself. It reads as follows:
...that the Minister of Veterans Affairs act to amend the Pension Act, Section 49, to permit widows to benefit from any increase in the lifetime assessment of a deceased pensioner's pensioned condition(s).
In summary, a widow or widower whose late spouse did not make an application under the Pension Act prior to death is free to step into the shoes of that deceased widow or widower as if the late spouse were still alive. In the case of a surviving spouse who can show that the assessment is or should have been greater than 48 per cent -- that means a full pension -- he or she can obtain the benefit of the increase payable as a survivor benefit. However, where a surviving spouse of a deceased recipient who was receiving less than 48 per cent can show that an increase exceeding 48 per cent is warranted, no increase in assessment is permitted, no matter how justifiable or reasonable. For example, a widow claiming her deceased husband who was in receipt of a 5-per-cent pension for hearing loss is not permitted to prove he should have been entitled to 10 per cent or 15 per cent, even though she has audiograms showing that had he lived and made the application he would have received an increased assessment.
The inflexibility of the statute, which refuses to recognize a legitimate increase in assessment less than 48 per cent, has resulted in some decision-makers pushing their decisions over the 48 per cent threshold when they would not otherwise have done so, so as not to disadvantage a deserving surviving applicant. In other cases where the decision-maker has been unable or unwilling to do so, a deserving application has gone without remedy.
It is strongly recommended -- suggested at this time -- that it is time for this long-standing, anomalous and inconsistent treatment of surviving spouses to be remedied. There may be concern by the department that a change would result in a flood of applications. It is suggested there are very few applicants who would fall into this category.
Furthermore, applicants under a rational system which permitted survivors to benefit from an increase would not be subject to a system which is forced, if it is to award anything at all, to award too much. It is the right thing to do. The credibility of the Pension Act and the many positive strides that have been achieved are put in jeopardy if an obvious and unfair anomaly is allowed to continue to exist when the opportunity to correct it is at hand.
I can give you at least one first-hand example. Myself and a colleague were sitting on a board in Penticton, British Columbia, some time ago. A widow had a very good case which was presented by the advocate in Penticton. The way it was presented by her advocate was such that her assessment was 40 per cent or maybe 45 per cent. After the presentation was made, my colleague and I sat down by ourselves and went through all of the paperwork again. We looked at certain points, and we thought perhaps we could stretch it 2 or 3 per cent here or 1 or 2 per cent there. Finally, we came up with 48 per cent for the lady.
We did not know it at the time, but we later found out that this lady had already sold her car and was putting her house up for sale because she could not make ends meet. When she was told that we were giving her the 48 per cent, she broke down and cried. This was a pretty bad situation. We could have easily given that lady 40 per cent.
Senator Jessiman: Did she get 48 per cent?
Mr. Rycroft: Yes. We stretched it to the breaking point. I know this has happened on more than one occasion. We had a saying at the commission in Charlottetown, "Be nice to widows." We had to be if we were to give them what they were due.
Mr. Annis: We strongly recommend that the Pension Act be amended to permit surviving spouses to benefit from any increase in the lifetime assessment of the deceased pensioner's pension conditions in any amount, justified by evidence properly adduced and considered by adjudicators of the department or panel members of the Veterans Review Appeal Board.
Mr. Rycroft: The next issue deals with access to documents under section 109. I will not read the provision which we have reproduced at the top of page 11.
National Archives has been very restrictive in its interpretation of this section in light of the Privacy Act and Access to Information Act. For example, in the case of an application by a widow, National Archives is refusing to release supporting documents on the deceased member to Legion service officers but suggest they go through Veterans Affairs pension officers or lawyers from the Bureau of Pension Advocates. This additional step is unnecessary, wasteful of time and resources and delays the process.
An interdepartmental working group with representatives from Veterans Affairs Canada, National Archives and the Royal Canadian Legion has met to discuss this issue. While this issue may be resolved by agreement of all departments on the meaning of the current wording of section 109, it would be prudent to clarify this section so that there is no doubt about the right of Legion service officers to obtain direct access to relevant documents, no matter what department or agency of government holds them, without having to channel its request through Veterans Affairs Canada.
It is recommended that this section be amended to specify that service officers of the Royal Canadian Legion and representatives generally have direct access to the relevant records, once they are acting for an applicant or prospective applicant under the Pension Act.
These next comments relate to the Veterans Review and Appeal Board Act. Section 19(2), regarding "frivolous and vexatious," states:
The Chairperson may refuse to establish a review panel to hear an application for review of a decision concerning the amount of an award under the Pension Act if the Chairperson considers the application to be trivial, frivolous or vexatious.
In the first year of its application, this section has been invoked in excess of 100 times to deny a forum to applicants in cases primarily relating to hearing loss claims where the applicant wishes to challenge a hearing loss policy or argue a more favourable interpretation of existing evidence. Generally, administrative tribunals will use such a section to avoid repeated attempts by applicants to tie up a panel on some frivolous and inconsequential issue. It is suggested that a challenge to policy or the arguing of a more favourable interpretation of evidence does not fall into this class. It is not the number of times that this section has been invoked that is of concern as it is the nature of the cases to which it has been applied.
Consequently, it is felt that there must be some safeguard to ensure that the tribunal filters out only truly trivial, frivolous or vexatious cases within the meaning of the normal principles of administrative law. It is recommended that such decisions be made by a panel of at least two members of the Veterans Review and Appeal Board and not the chairman sitting alone. In the alternative, it is recommended that the section be reworded so that it not be applied to an initial application at the review level but only a repeated attempt by an applicant to argue the same or substantially the same issue without adducing new evidence.
Section 23(1) deals with reconsideration by a review panel. It states:
A review panel may, on its own motion, reconsider a decision made by it under section 21 or this section and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law.
It is suggested that this section is overly restrictive on two counts. First, the panel doing the reconsideration should not have to consist of the members making the original decision. In fact, in the interest of fairness, particularly where a decision is being argued on the basis of error in law, it may be difficult for a review panel to have the proper fresh perspective on a decision to which it has already committed itself.
Second, a section should allow an application to be made on the same basis as section 32(1). That is to say, the review panel may reconsider a decision on an application if the person making the application alleges that an error was made with respect to any finding of fact, or the interpretation of any law, or if new evidence is presented to the review panel. It may be appropriate to restrict the new evidence to documentary form.
It is recommended that the section be amended to allow latitude so that the review panel does not necessarily have to consist of the same members who made the original decision. Further, the section should be amended to allow an application to be made on the same basis as section 32(1).
Section 32(1) is substantially the same but it has been reproduced. As in the case of section 23(1), the appeal panel reconsidering the decision should not necessarily have to consist of the same members who made the original decision. In the case of new evidence it may be appropriate but, where there is an allegation of error of law or finding of fact, the appeal panel may not be able to sufficiently step back from a decision to which it has committed itself. It is recommended that this section be amended to allow flexibility in the constitution of the appeal panel reconsidering an original decision.
Section 36(1), dealing with potential problems scheduling hearings, states:
The Board shall sit at such places in Canada and at such times as may be fixed by the Chairperson.
Section 92. (1) of the previous Pension Act reads:
An Entitlement Board shall sit at such place in Canada and at such time as may be fixed by the Chairman of the Commission, having regard to the convenience of the applicant and the Board.
Although no instances have occurred in the past year, there is a concern that section 36(1) of the current act removes the criterion contained in the previous act at section 92(1), concerning the need for having regard to the convenience of the applicant when setting the times and locations of the hearings.
It is recommended that the wording of section 36(1) be changed to reflect the need to have regard for the convenience of the applicant when setting the times and location of hearings.
Mr. Annis: Next are the issues relating to items not contained in the present statutes and the requirement for a deputy chairman on the Veterans Review and Appeal Board.
The deputy chairman of the Canadian Pension Commission provided a valuable means by which representatives could approach the tribunal without impinging on the requirement of the chairman to stay above the fray. A number of issues were resolved without formality to the benefit of applicants, representatives and commission members alike. There is no deputy chairman nor a statutory requirement for one on the Veterans Review and Appeal Board.
It is recommended that the Veterans Review and Appeal Board Act be amended to require the appointment of a deputy chairman from current board members so that there would not have to be an addition.
A successful review or appeal is very much dependent on the documentation available to give the issues raised context. The statement of case in the pre-September 1995 system fulfilled this function. In the new system, there is no statutory requirement for a statement of case. While Veterans Review and Appeal Board authorities have agreed to prepare statements of cases, it is felt that its inclusion in the statutory scheme will ensure that the concept survives. Without an appropriate statement of case consisting of details of the service of the applicant and a summary of the relevant medical evidence, the representative does not know what evidence or issues were decided upon and are now being reviewed or appealed. In short, the representative does not know what case it has to meet to succeed. It is recommended that the requirement for a statement of case and the fundamental elements, that is, service particulars, relevant medical evidence and copies of all documents referred to in the decision at the first level, be included.
I come now to priorities. The single most glaring inconsistency in the Pension Act is found in the treatment of proportionate widows pensions in sections 48 and 49 of the current act. Consequently, this proposed change has the highest degree of urgency and need for the implementation of a fair and rational basis for determining surviving spouses proportionate pensions. The continued presence of this inconsistent and illogical treatment of surviving spouses detracts greatly from what otherwise is a rationally and well thought out scheme of disability compensation.
The next most important issue for the Royal Canadian Legion is the imposition of safeguards in section 19(2) of the Veterans Review and Appeal Board Act; that is, in the determination of when a case is trivial, frivolous or vexatious.
The remaining recommendations for change are of approximately equal weight with the recommendation to amend section 5(1) on the issue of overpayments being of lesser concern than the others.
The above recommendations have been carefully thought out after extensive consultation and discussion within the Royal Canadian Legion and informal input from the department and other veterans organizations. The recommendations are constructive in nature. As indicated in the introduction, the overall result of the significant changes to the disability pension process is very positive. It is hoped our recommendations can be implemented to build on the solid foundation already laid and, as we said before this body in June of 1994, to make a good system even better.
Senator Jessiman: On page 2 of your brief, you said you put together a backlog reduction team. How many people are involved in that process?
Mr. Rycroft: There are three. We have recalled two of our former service officers on a contract basis.
I have asked the Bureau of Pensions Advocates to provide a lawyer as a Legion service officer, which they have agreed to do for a six-month period.
Senator Jessiman: So it is four people working only on backlog?
Mr. Rycroft: There are three people working just on backlog. Two of them will be in Ottawa, presenting primarily by video conferencing. The bureau lawyer will continue to work out of the Charlottetown office.
Senator Jessiman:How long have they been working?
Mr. Rycroft: The two part-timers have picked up their first cases and the first will be presented in the hearings held this week. The Veterans Review and Appeal Board, sitting as an appeal panel, is here in Ottawa hearing our cases this week. Some of them will be presented by one of the members of the backlog team.
The team will be up to full speed in March and for the next six months we are hoping to reduce our backlog of in excess of 300 cases to about 100 cases.
Senator Jessiman: I thought there were around 8,000 cases in total.
Mr. Rycroft: There are, but the Royal Canadian Legion represents only about 10 per cent of the business.
Senator Jessiman: So in the 18 months you are going to reduce your 10 per cent. What about the government itself? What success has the government had in reducing its backlog? How many cases are currently in waiting?
Mr. Rycroft: I was talking to my counterpart in the Bureau of Pensions Advocates and I understand that he will be addressing you on Thursday. I recommend that you hear it directly from him. While I have had certain discussions about numbers with the department, it is probably safer to get their numbers directly rather than my interpretation of them. I did not bring those numbers with me.
Senator Jessiman: Have they reduced them somewhat? Are they going in the right direction?
Mr. Rycroft: They certainly have. Both our organizations realize that an excessive appeal backlog does no one any credit.
Senator Jessiman: Applications used to take 18 months, on average, to get through the first time. It was said that that time frame would be reduced by half. Have any gone through in nine months?
Mr. Rycroft: We have dealt with cases in as little as 12 days from the time they were submitted. That is one extreme, and it is a significant reduction. For cases that came into the system after September 1995 and have been adjudicated, I suspect that the average is under nine months.
Mr. Annis: The last briefing we had in Charlottetown indicated that it was about 12 months, but that included the pre-September 1995 numbers. There are new cases coming in all the time.
Senator Jessiman: There is a limit. The average age of veterans must be in the 70s.
Mr. Annis: That is both a pro and a con. The number of applications does not seem to have decreased. In fact, they may even have increased because the people are getting older. The number of veterans is decreasing, but their age is increasing their level of disability. Of course, we have a large number of peacetime people, such as RCMP, who add to this total as well.
The fact that they are getting older and decreasing in numbers has not produced the anticipated reduction in applications. It is pretty well holding its own.
Senator Jessiman: Do your statistics refer only to veterans, as opposed to members of the Royal Canadian Legion or other associations?
Mr. Annis: Yes, they do.
Senator Jessiman: There are very few veterans left from the First World War. I believe that the last time you were here you told us that the average age of veterans from the Second World War was 74. That was two years ago so it must now be 76. Are you getting many applications from the Gulf War?
Mr. Annis: There are a number of them coming in, but I cannot give you a figure.
Senator Jessiman: There is the Vietnam War as well.
Mr. Annis: We also have all the special duty areas around the world. Any peacekeeping operation has a special duty area which is treated the same as wartime. It came under section 21(1) of the old act, which meant that they fell under the same part of the act as someone serving in war. We also have all the peacetime folks over the past 30 years, many of whom are ageing as well, of course.
Senator Bonnell: I understand that your statistics show that new applicants are being dealt with more quickly since the bill was passed. Are you also saying that those who were on the waiting list before are increasing the average?
Mr. Annis: We do not want in any way to change the department's promise to cut the turnaround time by 50 per cent. If we do not include those prior to September 15, 1995, the department will be able to say that it is meeting the promise made to veterans. It is probably a little unfair to include those recommendations because this new VARB had nothing to do with it. We would like the VARB to have a chance to prove itself.
Senator Bonnell: Suppose applications are being cleared within 9 months instead of 18 months, what about the appeal board? Is it not the case that they have more applications than ever and that they are taking longer than they used to to get through the appeal board?
Mr. Annis: I am not sure that that is 100 per cent correct, but the appeal board has a big backlog as well. As we stated in our brief, VRAB members can hear appeals faster than the appeals can be prepared by Legion service officers and the Bureau of Pensions Advocates. It takes them quite a while to prepare an appeal. Whose fault is it? I do not know. The VRAB can hear them if they are ready to be presented.
A portion of that big backlog is awaiting information to be compiled. Sometimes, of course, it is medical related. If you have to see a specialist, you could wait three or four months for an appointment. Cutbacks in the health care system across Canada are slowing medicals down. The Legion, the VRAB and the department do not have much control over that type of problem.
I know that the VRAB would like to limit the number of days from the time you put in an appeal to 60. In many cases, you cannot even get an appointment with a doctor before 90 or 120 days. Therefore, we will be arguing against that.
This is not a simple situation. We have to let it run a little longer. One year is not a long time when you consider that the Canadian Pension Commission has been in existence for around 72 years. VRAB has only been in existence for a year and four months. It would be unfair to judge it too quickly without considering all the intermeshing circumstances and problems which have arisen.
Senator Bonnell: At one time you sat on the pension board. We now have the Veterans Review and Appeal Board. How long after a decision is made before that decision is given to the veteran?
Mr. Annis: We could check on that, but in my time it was fairly quick. It depended on the secretary. I had a very good secretary. I would send in decisions from board hearings anywhere in Canada, and she would have them typed up within a week. When I would get back, they would all be done. In fact, if I was intending to be away for three or four weeks, she would send them on to my next stop. I would correct them or sign them and send them back to her, and they were sent out.
I believe that it is now taking about two months to get decisions out once the board member makes the decision.
Senator Bonnell: What is the reason for that delay? Are they short of secretaries? Are the computers not as fast as the girls used to be? Why does it take two months for them to get the decision to the veterans who are, perhaps, on the verge of dying?
Mr. Annis: A lot of what you have said is true, senator. Perhaps Mr. Rycroft has more information on that situation.
Mr. Rycroft: I suspect that the VRAB will have a version of events to give you. My perception is that there is a great deal of staffing of individual decisions. Although the board members dictate their decisions as they go out the door, which is very quick, the decisions are typed up and reviewed for relevant sections of the act. There is far more staff involvement on those decisions than, perhaps, in the past. In our view there is too much massaging. In order for that tribunal to make a decision it has to have some latitude. All of them do not have to look as if they came out of the same box. It is obvious that the purpose of the extra staffing is to make sure they all have the same look. I think that is what is causing the delay of two to three months.
Senator Bonnell: Last year, the chairman of the review board told me that veterans who found an error in fact or in law would not have to go through all this harassment again. They could just come right through to be heard a second time.
I am familiar with the case of a Navy veteran who fell out of his hammock and injured his head. He received a pension. However, they said that his helmet broke, not his hammock. I asked them, "Do you wear helmets in the Navy when you go to sleep?" He said, "No, that was a mistake." I told him to go back to the chairman of the board and ask him to review the case. He only received 5 per cent because his helmet broke.
The pensions advocate told him, "That was just a typographical error." I thought to myself, "Is the pensions advocate making decisions now for the board? Why would he say that?"
Mr. Annis: It is an interesting point. I cannot answer that question, senator.
Senator Bonnell: If you were on that board, you would appeal that decision quick enough.
Mr. Annis: The fact that you can go back because of an error in law is good. However, if somebody is going to say, "It was not an error, it was a typographical error."
Senator Bonnell: Is that not still an error?
Mr. Annis: It is not an error in law.
Senator Bonnell: He told me it could be done if it is an error in fact or in law.
Mr. Annis: It would be an error in fact.
Senator Bonnell: Therefore, the case should be reviewed and the pension increased to 10 per cent.
Mr. Annis: Perhaps, yes. I would have to see that file before I could comment.
Senator Bonnell: When he told me his story, I felt there should be no questions asked and that he should be heard again. I will speak to the chairman of the board when I see him.
You mentioned widows. When Mr. Macdonald was Minister of Veterans Affairs legislation was passed whereby, if the deceased veteran received 48 per cent, then the widow received a 10-per-cent pension. If they were receiving less than 48 per cent, then she received one-half what the veteran received. Are you saying that under this legislation that is not the case?
Mr. Annis: No, that is not what we are saying.
Senator Bonnell: What is your argument?
Mr. Annis: First, 48 per cent would give her what would be considered a 100-per-cent pension to the widow, which is 50 per cent of what the pensioner received when he was alive.
Senator Bonnell: That means a 100-per-cent widower's pension.
Mr. Annis: Yes, that is right. If the pensioner had a 20-per-cent pension upon death, the widow would receive 10 per cent. What we are saying is that if the process was under way when that pensioner died, or if there was medical evidence that would give her another 10 per cent or 15 per cent, the widow could not receive that additional benefit under either the old legislation or the new legislation.
Senator Jessiman: Did it have to be in process?
Mr. Annis: It does not have to be started. If that widow had the medical evidence to support an increase in pension, she could not get that pension unless it came to 48 per cent. That is the problem.
Senator Bonnell: If he had 40 per cent, then she would not get 20 per cent.
Mr. Annis: She would not get anything out of this condition that she was appealing.
Senator Bonnell: Do you mean under the new legislation?
Mr. Annis: Under the old legislation as well.
Senator Bonnell: It is no different.
Mr. Annis: That is what we are saying. That long-standing idiosyncrasy, if I can call it that, should be changed. That widow deserves that pension. The pensioner would have received it were he alive. Why can she not get it?
The Chairman: Mr. Annis, you are also interested in the lower amount being indexed; is that correct?
Senator Jessiman: They should receive their proportionate share.
Mr. Annis: That is what we are saying. Treat the widow just the same as a pensioner.
The Chairman: If there are increases in the amount of the pension due to inflation, it is my understanding that the widow receiving less than 100 per cent would not get the increase.
Mr. Annis: No, I do not believe that is the case. She would still receive the increases under indexation. That is not a problem.
Senator Jessiman: You were talking about how long it takes from the time a panel has heard the case, made a decision and notified the veteran that he will be receiving his pension. When does he get his money? Is it not automatic, within a day or two? Knowing that a decision has been reached, surely the cheque should be sent at the same time. Someone else is writing the cheque. If the decision is made, is it a question of automatically knowing how much they will be getting, or is it a matter of determining how much?
Mr. Annis: I am not sure exactly what is happening now. One of the changes instituted by the old commission prior to closing down shop was that once a decision was made to award an entitlement and if there was medical evidence which told us what the assessment was, then that would be written in the decision as well. That speeded things up remarkably.
Senator Jessiman: Did the medical people determine that percentage?
Mr. Annis: Yes, usually it is a medical decision based on the assessment of a disability. If the pensioner appeals that assessment, then it is heard by the board. They can bring in the medical evidence and the board will decide whether or not it deserves an increase. If it does, it is very quick.
Senator Jessiman: When the veteran receives a favourable decision, is he told what percentage he will receive?
Mr. Annis: Not always. There may not be a medical assessment on the documentation. If there was a medical assessment on the documentation, then we started writing in that assessment. When it went into pay, they would already know it was there. However, if there was no medical assessment, it would have to go back to the medical people for assessment, or the pensioner would have to go to a district medical officer of Veterans Affairs Canada and have an assessment done. That would be spent to Charlottetown and go through the system that are talking about. These are little refinements.
Senator Jessiman: He may receive notification that he has been successful.
Mr. Annis: Yes.
Senator Jessiman: However, he is not informed of how much.
Mr. Annis: Quite often that is the case.
Senator Jessiman: That takes some time. When they finally know how much, he then receives another notification as to how much. Does he get the cheque at that time?
Mr. Annis: Not normally, no.
Senator Jessiman: How long after does he receive it? I can understand that if you do not know how much, then you cannot write a cheque. Once you know it is successful, you know how much it is. Surely it is simply a question of pushing a button somewhere and the cheque is printed.
Mr. Annis: There is also back pay and things like that.
Sen. Jessiman: That is part of the calculation.
Mr. Annis: That should be a simple thing since it states the effective date. If it is 5 per cent from a certain date, it is fairly simple.
Sen. Jessiman: You are telling us it does not happen. I read somewhere else that people are complaining. The veteran knows he will get money because there is retroactive pay. That is not the point. The question is, why can he not get it? He is getting older, and he needs the money. The fact that he gets it in one lump sum is fine. However, if he is to get $50 a month but has to wait ten months to get his first payment, which would include the retroactive pay, rather than getting $500 would he not be better off with the monthly amount.
Mr. Annis: I am not sure about the time period of the delay. It usually is not very long from the time they receive notification.
Sen. Jessiman: Someone was complaining about it.
Mr. Annis: I am not sure how the present system is working either. I am talking from my knowledge of the previous system. I am not that familiar with the new system.
Senator Bonnell: We will determine that tomorrow or the next day.
Mr. Annis: We will be there next Tuesday ourselves.
Sen. Jessiman: Will you be there as well?
Mr. Annis: We will be there a week from tomorrow, so next Tuesday.
Senator Cohen: I am new to this committee. I did a crash course in the last 48 hours, and I am in information overload. However, my general feeling is that everyone concerned with this act cares about veterans. We just wish to make it better and faster.
In regard to the indexing of widows' pensions, we talked about what happens if they receive less than 48.1 per cent. What is your opinion on indexing all widows' pensions? Would that be a tremendous cost?
Mr. Annis: You are asking two questions at once. Annual indexing is included regardless of what they get. Our argument is that if an appeal cannot give them 48 per cent, the board cannot give them anything because of the legislation. If they are already receiving, for example, 10 per cent, and they have upon bona fide evidence that had the spouse lived, he would have received another 10 per cent, too bad. He is dead now, and you cannot get it. We are saying this is wrong.
Sen. Jessiman: It must work in reverse, too, if the service person is a woman and the man is the spouse.
Mr. Annis: It is the same thing.
Sen. Jessiman: It is not gender; it is just the person.
Mr. Annis: That is why we use the words "veteran" and "spouse."
Senator Cohen: My next question is with regard to your suggestion about the requirement of the deputy chair. Would you elaborate on that? Would it increase the comfort zone of the applicant? Is it to keep the chair more neutral? I should like to hear more about it. It made sense when I was reading it.
Mr. Annis: As to your statement that it would make it more comfortable, or at least make the chair more comfortable, the deputy chairperson had many responsibilities under the old system. Many of the compassionate decisions were made by the deputy chairperson, a lady in this case, as a matter of fact, or one or two of the elder statesmen of the Canadian Pension Commission. The deputy chairperson took many of these widow cases, especially those involving split widows, when you have two widows after the same pension. The deputy chair did much of that, as well as participate on board hearings.
We believe, especially with this frivolous and trivial area, that it should not be just one person saying, "That is frivolous, and we throw it out." We believe there should be a combination board which says, "Yes, it is trivial or frivolous."
As a matter of fact, the deputy chairperson -- again, the deputy chair lady in the old case -- used to do all of the assigning of boards to the different board members, BPA, Bureau of Pensions Advocates, across Canada. Much work was taken off the shoulders of the chairman by the deputy chairman, and, of course, someone must sit in when he is away on holidays or something else.
Senator Cohen: That was my next question.
Mr. Annis: I do not see how they can get along without a deputy chairperson, for so many reasons.
Senator Cohen: The duties of the chair are larger now.
Mr. Annis: He has many duties.
Senator Cohen: The argument for a deputy chair is certainly valid.
Mr. Annis: We think so.
Senator Cohen: How have the veterans reacted to the loss of independent counsel at first level hearing?
Mr. Annis: I have two people who do that type of thing now, and perhaps I would ask them to comment.
Mr. Rycroft: For the Royal Canadian Legion, our system has not changed. We still provide that representation right from the first level through. We tend to work somewhat cooperatively with the bureau and the pension officers who now do it, so we do not have many cross complaints.
From our perspective, people have not generally complained that they were not well represented by pension officers. However, perhaps they simply do not know what the system and, therefore, do not know what to complain about. We are concerned, still, that the disconnection of the bureau from that first process means that people whose first decisions are wrongly decided may simply go away, hang their heads, and never come back, not knowing how to exercise their rights.
Mr. Annis: In addition to that, the Bureau of Pensions Advocates used to put the statement of case together. There would be a medical précis writer, for example, who would put the medical information together. The doctors would have their information. The advocate would dig out all the files and whatever else was required in order to properly adjudicate a case.
The BPA no longer does that. It is the counsellors from VAC who are doing it and our own service officers. That workload has been added to the workloads of the counsellors in the VAC offices and the Legion service officers.
Senator Cohen: Do those officers receive the training necessary in order for them to advocate? For instance, if I were applying for a pension for the first time, I would not know what to do. I would need to have someone there to take me by the hand and walk me through it.
Mr. Annis: This is what VAC is trying to do. They call it one-stop shopping. They would like to have the pensioner come in the door and have one counsellor lead him through the process.
There is a problem in that the advocates used to help make arrangements and tell the pensioner what he needed in medical information. I do not know if that is being done now. They will say, "You have to have this kind of information; go and see your doctor." Some of these old folks have difficulty in that they do not even know what a specialist is in the field they are discussing. For example, "orthopedics" does not mean much to them. That is a difficulty for some of these older folks. I believe that the idea is okay, but it still needs some fine tuning to make it work.
Mr. Rycroft: There is an important concept with the new system which is that the pension officers do not represent the clients. The bureau used to. The pension officers counsel and assist. That is the wording of the act, and that is the way they are performing their mission.
The Royal Canadian Legion service officers and other service organizations will still represent in that sense of the word, look at the case from the client's perspective and truly represent. Counselling and assisting is something else, and I suggest it is something less than representing.
Sen. Jessiman: Is there another person who makes a decision? Some are going through very quickly.
Mr. Rycroft: The pension officer will counsel and assist, prepare the form, which will then go to an adjudicator, and the adjudicators will render decisions in as little as 12 days.
Sen. Jessiman: That is some other person who is working for the government.
Mr. Rycroft: That is correct. These are ministerial adjudicators working in Charlottetown.
Sen. Jessiman: To that extent, they are hurrying some applications since some are getting through more quickly.
Mr. Rycroft: The question then is, was the application done in the first place? In other words, did someone go to the pension officer and receive full representation? Were they counselled against submitting an application?
Senator Jessiman: Maybe they only received 10 per cent. If they had independent counsel, they might have asked for 40 per cent.
Mr. Rycroft: That is the question. If they did not get the 40 per cent, do they go away satisfied with the 10 per cent they received? No one is there to tell them to be any wiser. No one will review that.
Senator Jessiman: Are there many complaints from your members? From reading both briefs, I get the impression that you think they are pointed in the right direction.
Mr. Rycroft: I suggest there will be no complaints because the clientele tends to be fairly passive. As people get up into their seventies, they are not likely to complain. The government has spoken and rendered a decision.
Senator Jessiman: I do not find that. I get grumpier every day.
Mr. Rycroft: You are very active, senator, but some of the client population is very passive in nature. They are suffering severe disabilities. Their government has spoken. They are tired. They do not want to fight the system, and no one is there to fight it for them. Sometimes there is that linkage to the bureau. If it is not there, they have lost a very important step. I think they need their hands held.
Mr. Annis: There is another point, senator, if I may. Many of these veterans are proud people. I sat on boards where we had to convince a veteran that he was not taking welfare and that he deserved that pension. Many of them are reticent. They did not want to do this, but they were old. They were hurting; they needed help; they needed money. However, we had to convince them that this was not welfare.
Mr. Ted Keast, Assistant Director, Service Bureau, Royal Canadian Legion: With respect to these decisions which are turned around rather quickly, of course the veteran does not mind if it is a favourable decision. However, under the new system, no medical précis is created, as was done under the old system. That took time. It is not as relevant if a decision is favourable, but if a decision is not favourable, then we are left with a review or an appeal. The lack of that medical précis, while it allowed a quicker turnaround the first time, slows us down the second or the third time.
Senator Jessiman: What are the statistics on the success rate in the last 18 months compared with the success rate prior to that period?
Mr. Rycroft: From our 10 per cent of the share, we have seen at the first adjudication level approximately a 60-per-cent success rate, if you consider any decision having a favourable element to it. It might not be fully favourable. You may still want to have things reviewed or appealed. However, that is in contrast to the pre-September 1995 system where, using that same measuring stick, you would see approximately a 30 per cent success rate.
The Chairman: The "benefit of the doubt" clause has always concerned me. The medical people looked upon it as a legal question and, to me, the veteran never received the benefit of the doubt. Do you see any improvement in that aspect of the legislation?
Mr. Annis: I have spoken with some of the new board members and askedthem that specific question: "During your training, were you told to give the veteran or the applicant the benefit of the doubt?" The answer was, "Yes, many times." I think that that part of the legislation is being followed.
The Chairman: At what level?
Mr. Annis: This is at the appeal level. The adjudicators were long-time employees. I believe most of them wrote one or more medical précis before they became adjudicators. They were aware of it as well. During their training, they were taught the same thing -- benefit of the doubt.
I am quite content in my own mind, as I believe are our people in the Legion, that the benefit of the doubt is being given.
The Chairman: My second question concerns the changing of a diagnosis. An individual may have been diagnosed with rheumatoid arthritis and a specialist now says it is osteo-arthritis. The present practice has been to go before the Veterans Review and Appeal Board to have that changed. I am informed a number of people now are making new applications and attempting to get it changed that way. That appears to be an easier, more reasonable and sensible way to do it than to go through the appeal process.
If a letter went in from the specialist who said the original diagnosis was wrong, could that not go in as a first application and be changed readily and easily without going to the appeal stage?
Mr. Annis: We have been assured by the Veterans Review and Appeal Board that that will happen. If there is something obvious, such as the diagnosis you described, and if you send the right paper with all of the proper file numbers, they can do exactly that. That is an excellent improvement from the old system.
Incidentally, pension commission members were not allowed to change a diagnosis. We were not medical people. It had to be done by the doctors. If an appeal came before the old pension commission and they tried to change the diagnosis, we had no alternative but to say, "I am sorry, you cannot do that; try again." That is why they were coming along with a new application. Instead of rheumatoid arthritis, it became osteo-arthritis. There was no doubt that that took time.
Under this new system, we have been assured that in such cases they can do it right away. We think that is great.
The Chairman: My other question concerns awards made by the Veterans Review and Appeal Board. They are usually at 5 per cent because the applicant has not been medically assessed, and I presume the 5 per cent has been put in there to protect that individual. Then it must go through an appeal to get the medical assessment, and this can take up to six months.
I phoned the department about a case the other day and was told it could take up to six months. That seems to be an awful long time. There must be a simpler way that would shorten the process. If the appeal board had the authority to order an immediate medical assessment, I think that would be much better. Mr. Rycroft was saying that he was afraid many people would become confused and leave. I am afraid many people will not appeal this 5 per cent. They will mutter and say, "I only received 5 per cent or $79 a month." If the Veterans Review and Appeal Board could order a medical assessment at the same time, I think it would speed things up.
Mr. Annis: Again, I will go back to my own time. We did that in some places. If there was a district medical officer in that city, we often had him come in during the sitting of the board. When an entitlement was given, we would refer him immediately to the doctor who was waiting in the next room. He would make an immediate assessment. This sped things up.
Now, this was not universal. In some cases doctors were not available at the time that they were required. As well, it may have been necessary for that doctor to refer the veteran to a specialist who took x-rays or an ultrasound or some other thing which may go on and on. Yes, it is possible that some of these assessments may take considerable time. However, if they can have doctors available during these hearings to make the assessment right away, it would definitely speed things up. Let me make it clear that sometimes the case cannot be sped up.
The Chairman: Yes, I understand that.
Senator Bonnell: These doctors you have available may not know everything. A psychiatrist may be able to tell you that you have anxiety or neurosis but as to knowing whether you have osteo-arthritis of 1 per cent or 5 per cent, he could probably do as well as the cleaning woman. The doctor in the next room may be a surgeon who has a better idea of certain other things. The next doctor could be a general practitioner who can tell you something else.
It all depends on what kind of doctor is available and whether he can assess anything or not. The fact they have an MD may mean they can deliver a baby and that is all they can do. Others can diagnose a mental illness, and that is all they can do.
Mr. Annis: That is true in many cases, I am sure. That is why we must send people to specialists. On the other hand, there is a thick collection of medical guidelines on almost any pensionable condition you can imagine. You can open that big book and it will tell you, for example, that a patient who has a problem with his spine will have certain symptoms. These are listed in charts depending on input, such as the range of movement, pain level and medication and that type of thing. Then a percentage is given of, for example, 10 or 15 per cent. If the case is more serious and wheelchair use is required, then it may say 30 or 40 per cent.
These charts are available. The doctors and the board members have them. These charts are of great assistance in making these assessments. They are used on assessment boards and by the review and appeal board. Doctors are guided by them as well.
If I went for an assessment from a doctor who had nothing to do with VAC, I could take these sheets with me. I could ask the doctor to look at the charts, to do his tests on me and to come up with a recommended assessment. That is quite often done. There has been a lot of work done along those lines. None of the board members are medical experts but after they have studied or done this for about a year, they become very good at assessing medical conditions. When they hear so many cases, one after the other, they learn a lot.
I think this is a fair system and it is probably as good as we can get at the present time.
Senator Jessiman: Senator Bonnell, were you referring to the headquarters' medical advisors, as opposed to the board members?
The other association has some concern with this issue. A patient has their own medical person and then other specialists are brought in who may say something else. The board listens to them. Then these headquarters medical advisors reverse the decision.
Mr. Annis: No.
Senator Jessiman: That is their concern.
Mr. Annis: On an initial adjudication or on an appeal of an entitlement, once the entitlement is made, then the medical people will make the assessment.
Senator Jessiman: When you say the medical people, are you referring to the headquarters medical advisors?
Mr. Annis: Yes, those medical staff would make the assessment. However, if it is not an entitlement but an assessment hearing, then the veteran would present his case with all of the information and the board would then make the assessment. The doctors do not change that, no.
The Chairman: What about the district medical officers? How are they utilized in the assessment process?
Mr. Annis: They are used quite a lot, as a matter of fact. If, for example, the board is being held in Saint John, New Brunswick, and the entitlement is positive, then quite often the veteran will be sent to the senior district medical officer for his assessment. The SDMOs are used a great deal.
There is a problem in getting these doctors to serve as SDMOs. In some places, it is easy. In other places, it is very difficult. Medical doctors are not always easy to come by. The department sometimes has difficulty filling those positions. When they are there and available, yes, they are used a great deal.
The Chairman: You made reference to a "vexatious and frivolous" section in your brief. I must say I do not like those words; I prefer to use something a little less harsh.
However, I understand that, of the 100 or so cases which were turned down last year, some were successful in getting appeals and in getting a successful conclusion to the application. Have you any experience with such cases?
Mr. Rycroft: We have heard some anecdotal comments from the chair that some who persisted after receiving a frivolous and vexatious ruling were able to get the board to take another look at it. The concern is that it depends almost on the whim of getting the right person on the right day. In our view, the process is flawed because it turns people away and, by accident, they may be able to come back again. The system should allow for that.
Mr. Keast: A number of those cases for assessment reviews were hearing-loss requests. The board has denied the assessment review and rescheduled the person for a new pension medical, hopefully resulting in a new audiogram that would put them up. If they do not change the assessment after that, then we have another look at it.
The Chairman: These were requests for reassessment?
Mr. Keast: Some were requests for entitlement; some were for assessment.
The Chairman: I did not realize that the board looked at those cases and decided whether the individual who got 5 per cent was entitled to a reassessment?
Mr. Keast: There are two types of reviews, assessment reviews or entitlement reviews.
Senator Cohen: The National Council of Veterans Organizations, through the years, has recommended written submissions instead of personal appearances. They have been pushing that area to make it easier for an aged applicant.
In your opinion, is a personal appearance more favourable to the applicant than a written submission?
Mr. Annis: I have a personal opinion but that does not mean it is a Legion opinion. By all means, if you have an applicant who can come in and sit down and tell you in his own words, eyeball to eyeball, exactly what caused his disability, then I think it is a great thing.
I would not like to see it all go to written submissions. There is a possibility that closed circuit television could be well utilized in this type of thing, but eyeball to eyeball is still, in my opinion, the answer.
Senator Cohen: I agree with you. When I read that, it did not sit well with me.
Mr. Annis: Just to add to that, there are also times when perhaps the particular applicant is not really all that he is cracked up to be and it is better to write.
Senator Cohen: I wanted to ask your opinion on the extension of benefits to a spouse who is a caregiver. That saves the department many dollars. Would you not say that that spouse should be receiving an entitlement for that type of care?
Mr. Annis: There are special awards for veterans who are disabled and who require assistance. These awards are called attendants' allowances. They are paid in addition to the pension so that support can be given to him. It is written up in the decision that the care is being given by the spouse, a nursing home, visiting nurses, friends, sons or daughters. That attendance allowance is graded on the degree of disability of the pensioner. Yes, it is paid, but I do not believe it is paid directly to the spouse. It is paid to the pensioner, and it off sets those costs.
Senator Cohen: Is it generally known that this allowance is available?
Mr. Annis: I believe so. Counsellors visit a lot of these pensioners on a regular basis. They are very good. When they see a situation, they will apply for attendance allowance for that particular person. I think that is well handled. Counsellors do a good job on that.
Senator Cohen: I have a supplementary question regarding the Gulf War veteran and the Gulf War syndrome. People are starting to recognize these mysterious ailments that are hitting veterans from the Gulf War. The Legion has some veterans that have been afflicted with some form of illness. How is the department handling those cases? What is the attitude of the department when it comes to that area, the Gulf War syndrome?
Mr. Annis: The term "Gulf War syndrome" has never been given a medical diagnosis. We have been proposing that people apply for a pension no matter what the condition. We are finding that they are quite successful. Post traumatic stress disorder is one of the common illnesses of the Gulf War syndrome, but it stands alone as a pensionable disability. We are proposing to our members that they apply for the one that we can positively identify.
The Chairman: I have a follow up to the first question by Senator Cohen concerning a veteran who was not in receipt of a disability pension but had suffered a stroke or something that required extensive home care. If the widow had not cared for this veteran at home, it would have been necessary to place him in a home and, particularly where there is a financial need, the department would incur some expenses. I think there is a feeling that the widow who has done all this extra work is entitled to some consideration after the death of the veteran who required care.
Mr. Annis: This is not part of the legislation. If a veteran is not receiving a disability pension, then he or she is not eligible for any kind of care outside the normal health system of Canada. The veterans pension is strictly limited to disability incurred during war time or peace time military service.
We have discussed this situation under a different scenario, although it is the same situation you have raised, namely, a pensioner who is drawing a pension and is also drawing an allowance under the Veterans Independence Program. At the present time, when he dies, the surviving spouse will receive his VIP payment for one year.
We had some discussion about this. In fact, we will be talking with one of the senior representatives from Veterans Affairs Canada tomorrow on a lot of these issues, including this one. We sort of agree with you that if a widow has taken care of a pensioned veteran for 45 years, then surely she has worked harder than a normal spouse would have and perhaps we do owe her a bit more. Mr. Rycroft brought up the point concerning a 25-year-old woman who marries this man when he is 72 and he dies and leaves her. She is not in need. We have stipulated that the widow should be paid only where there is a need for assistance. We are presenting this tomorrow to Veterans Affairs Canada as one of the resolutions. When there is no disability pension and he is not eligible for this type of thing, then the widow is not eligible either. This is strictly for disability from service.
The Chairman: I take the viewpoint that many of these widows have cared for these veterans for years. Despite the fact that a veteran was not in receipt of a disability pension, there is some obligation to the widow. I do not think we are looking at that aspect of the legislation.
Mr. Annis: No, we are not. I like your thought. We could use an example of a person who served for 30 years. A study that was done a few years ago stated that many veterans would retire at age 55 and die at age 58. The other study was done in the late 50s, or something like that. Some consideration should be given to situations where a person has worked for 30 or 35 years in the military -- and it is a pretty rugged life -- worn himself down to a frazzle and then retired, and then his wife has taken care of him for 10 or 15 years. I like that thought. Unfortunately, the statutes do not permit anything like that, but if you can get it through we will support you. How is that?
The Chairman: I was hoping for your support.
Mr. Annis: Maybe we can do that.
Senator Bonnell: Mr. Chairman, if you ask them to put that suggestion in writing, I think they would make a recommendation quickly and then you could get it through.
The Chairman: Thank you very much, gentlemen. We found the brief and the question and answer period to be most helpful. It has given us a greater insight into the act. We will try to benefit from that when we are getting a snow job from VAC in Charlottetown.
Mr. Annis: I wish you success in Charlottetown.
The Chairman: Honourable senators, we will now hear from the National Council of Veteran Associations Canada.
I understand Mr. Brian Forbes will be presenting the brief and answering our questions. While we regret very much not having the benefit of Mr. Chadderton's experience and wisdom, I am sure that we will still benefit from your brief and your answers.
Mr. Brian Forbes, Honorary Secretary General, National Council of Veteran Associations: Mr. Chairman, I would like to first pass on to the Subcommittee on Veterans Affairs the personal regrets of Cliff Chadderton. Mr. Chadderton, as you know, is the chairman of NCVA and the chief executive officer of the The War Amputations of Canada. He is currently outside the country on business and had hoped to get back for this presentation today, but was unable to return in time. He certainly passes on his personal regrets.
Mr. Chairman, I have had the pleasure of working with Mr. Chadderton for some 23 years now as legal counsel to NCVA and as legal counsel to the War Amps. I believe the majority of the committee is familiar with the fact that Mr. Chadderton has been an outstanding advocate for veterans causes. It is fair to say he has been on the leading edge of much veteran reform legislation.
I would ask honourable senators to note that the brief in front of you has been prepared by Mr. Chadderton. It is our intention to highlight that brief in our introductory comments before the question session.
I would also take this opportunity to introduce my colleagues. Ms Faye Lavell is the director of the service bureau of the War Amps. In addition to her many duties related to handling applications and appeals for war amps, she also handles numerous cases for member organizations of NCVA. She has a full workload. Danita Chisholm is the director of communications with the War Amps. She has been maintaining a watching brief on issues surrounding what has become known as the Gulf War syndrome. She will be assisting us today with a presentation in regard to that issue.
Under the concept of synopsis, honourable senators will recall that the hearings before the Senate subcommittee held in June, 1995 dealt extensively with Bill C-67 and provided the framework for the reform of the veterans pension system. We would first wish to express sincere appreciation to the Senate subcommittee for its continuous input through the course of this legislative evolution and for its recommendations which enabled the government and more particularly Veterans Affairs Canada to bring about much needed change in the administration and adjudication of pension applications and appeals.
Honourable senators will recall Senator Marshall, who led a significant amount of discussion back in 1993 and 1994 which led ultimately to this legislation.
We would also wish to express our gratitude to the Minister of Veterans Affairs, the Secretary of State (Veterans) and the Deputy Minister of Veterans Affairs and his staff in regard to the tremendous amount of successful work which has culminated in a much more effective adjudicative appeal system.
Representatives of NCVA have had the opportunity of working with Veterans Affairs Canada over the course of the last one and one-half years and have been impressed with the dedication, commitment and outstanding effort which was required to carry out this extensive statutory transition. We have had the occasion to maintain a regular dialogue with representatives of the department at all levels of adjudication and appeals so as to ensure that all revisions of policy and procedure have been implemented in accordance with the best interests of the veteran community.
As recently as last week, we were in Charlottetown and were able to discuss specific issues dealing with adjudication on such diverse subjects as attendance allowance, exceptional incapacity allowance and access to the veterans health care system, and we received a good response from departmental officials. We were pleased with this discussion, and I think it is a by-product of the new act that this activity has been facilitated under the minister, the secretary of state and the deputy minister.
Mr. Chairman, in our considered opinion, there do remain some flaws in the appellate system which we will be addressing later in our brief. In the main, these concerns relate to the operation of the Bureau of a Pensions Advocates and its ongoing relationship with the Veterans Review and Appeal Board.
We place before this committee a number of priority resolutions approved at the October, 1996 annual general meeting of the national council. Included with these resolutions is a recommendation concerning Gulf War syndrome.
If I might turn to Bill C-67, honourable senators may be interested in reviewing certain comments we made to this subcommittee on June 14, 1995, with regard to the enactment of the bill and the specific items discussed during our appearance at that time. These are set out in our brief under their respective headings. I would first refer to the concept of ministerial responsibility.
Mr. Chairman, we noted in our appearance in 1995 that practically since the inception of the Pension Act in 1919, the Board of Pension Commissioners and its successors were held to be quasi-judicial bodies, operating independently, separate and apart from the appropriate minister of the day. NCVA and more particularly Mr. Chadderton took the position that this philosophy was ineffective, and we suggested that at least insofar as initial decisions are concerned, such decisions should be made by departmental staff under direct statutory control of the minister.
With the enactment of the legislation, this new approach has provided an opportunity under which ministerial staff can be held responsible by the minister and accountable for the timeliness, efficiency and productivity of the initial adjudicative system. Based on our experience and initial indicators, it would appear that this major reform has been successful in our evaluation of this early stage of the implementation of the bill's revisions.
Under the topic "Appeals," Mr. Chairman, it will be recalled that according to our research and information available prior to our last submission to this subcommittee, the success rate for first applications to the former commission was approximately 30 per cent, as representatives of the Legion mentioned earlier, with the eventual percentage of approval at entitlement assessment boards of the CPC becoming 70 per cent and the ultimate success rate at the former Veterans Appeal Board reflecting an 85 per cent approval ratio. It was our strong view that this statistical analysis represented a severe indictment of the former adjudicative/appeal process. It was readily apparent that veteran applicants were required in a greater majority of cases to exhaust the entire appeal process to obtain just and equitable decisions. Of most concern was the alarming time-line, which often exceeded three years, in order to achieve this successful result.
We have been kept fully advised by Veterans Affairs Canada of recent results in this context, and it is our understanding that this rate of success at first application under the new departmental adjudicative process has increased markedly.
Mr. Chairman, when we put together this brief we did not have statistics from the department on success rate. However, from our visit last week, we do now have some data which we would like to share with this committee. The data indicated that for the period September 15, 1995 to September 15, 1996, which is the first year of operation under the bill, success rates at first level were as follows:53 per cent on first applications, 94 per cent on special awards, and 68 per cent on ministerial reviews under section 82 of the act.
Under the ministerial review provision, if a veteran is unsatisfied with his first decision before the department, he has the right to go back for a reconsideration based on new evidence or an error of fact or law. That reconsideration has, in our opinion, been a valuable tool, because 68 per cent of those types of applications have been approved on reconsideration.
We suggest that in comparing those statistics to what we saw under the Canadian Pension Commission system, there clearly is an improved success ratio at first level. We respectfully suggest that it is where it should be, rather than forcing veterans through the review and appeal process as under the old system, which was so arduous and tortuous.
Senator Jessiman: I thought the Legion said it was 60 per cent.
Mr. Forbes: I think that just dealt with Legion cases.
I might address that question in passing. The question of statistics is, of course, one which often makes one hesitate. Our experience from our war amp service bureau shows that there has indeed been a marked increase in success ratios at first level. That is where we can bring personal experience to bear as opposed to relying on the statistics of departmental officials. It is not that we distrust them, but our own personal experience may be more relevant to you. I suspect that you will be questioning the department at some length later this week on questions of data, success ratios and individual disabilities as well.
Page 4 of our brief deals with a memorandum dated October 30, 1996 from the Director General of Benefits Division, DVA, which deals more with the question of backlog and caseload. It is rather important.
In October of 1996, there were 7,854 first applications in progress with the Department of Veterans Affairs. As of September 30, 1996, there were 8,113 first applications in progress with the Department of Veterans Affairs. There have, of course, been new claims as well as ones which have been resolved. The figures given to us last week indicate that there have been more new applications in this last year than in previous years, which is rather interesting. I accept the Legion's conclusion that disablement increases with age, and that obviously results in higher levels of application.
Of these 8,000 cases, 1,252, or 15 per cent, had an application date prior to the introduction of the pension reform bill, which is September 15, 1995. The department concludes therefrom that the majority of backlog cases which were in evidence at the time the new bill went into effect have been addressed. Some of these older claims were forwarded to the Veterans Services Branch after September 15, 1995.
As of September 30, 1996, 4,606 of these 8,113 first applications were with the pension officer or other representative. Of these 4,606, about 62 per cent were waiting for client information. The department has been waiting for more than six months for client information on about 850 claims.
Senator Jessiman: Do we subtract the 1,252 from the 8,113 and say then that 6,861 were dealt with after September 15, 1995? Would they have dealt with that many?
Mr. Forbes: Yes, they would have. We understand that they have been dealing with approximately 800 cases a month and that they would like to increase that to 1,200 a month. So there has been an attempt to deal with backlog and caseload.
I appreciate your comment, senator. I am not sure that this memorandum answers all of our questions, but we suggest to the committee that there has been a very aggressive attitude with regard to backlog and reducing the caseload.
Senator Jessiman: I took from what you said that between those two dates 6,861 cases were dealt with, that they started with 8,113 and there were now 1,252.
Mr. Forbes: I think that you better ask the department about that, but there has clearly been an overlap of old and new cases. It is very difficult to interpret precisely where the new and the old cases are dealt with. They are really trying to tell us that the backlog pre-September 15, 1995, which is before the reform bill was implemented, has been addressed.
Senator Jessiman: When you were in Prince Edward Island, what was the backlog? Is it 6,000? I have heard 12,000, 13,000 and 15,000. I know it was a lot.
Mr. Forbes: You must remember that when you say "backlog" that includes first level and appeal. This only focuses on first level, which complicates your question.
The important thing is that it is our instinctive reaction, supported by departmental figures, that they have attacked the backlog and cases that were long in the system with a fair amount of aggression. I think the Legion would agree with that. In fact, the Legion has implemented a policy to attack their own cases in a similar fashion.
Our conclusion is that, accepting these figures at face value and given our instinctive reaction to seeing how our cases are being handled, they have done a commendable job in going after backlog and trying to reduce that caseload.
Later in our brief we talk about the Veterans Review and Appeal Board and use actual figures as to where the VRAB is at this time, which is helpful.
With regard to medical advisors, in June of 1995 we expressed concern as to the role of medical advisors in the adjudicative appeal process under the Pension Act. This has been a longstanding complaint based on the prominent role played by medical advisors. The Woods committee, which sat from 1965 to 1968, of which Mr. Chadderton was the secretary, condemned the system based on evidence that in many cases decisions were, in effect, being made by medical advisors, who were often overriding commission adjudications. In order to demonstrate the significance of this issue, The War Amputations of Canada initiated an interpretation hearing, which was known as I-28, in January of 1982, which resulted in the then Pension Review Board, under date of February 12, 1982, rendering a decision to the effect that the commission was abdicating its statutory responsibility as to adjudication by deferring to the medical opinions of the Medical Advisory Branch in its interpretation of the Pension Act and the adjudication of individual cases. Things have improved since then, but we still have some concerns with regard to this relationship.
We are still not clear as to the full extent of the role of the medical advisors since the inception of the Bill C-67 provisions. We have evidence, however, that in some instances headquarters medical advisors will still overrule recommendations of the district pension medical examiner or, alternatively, evidence provided by the veteran's own attending physician or specialist. I underline that we are talking about entitlement here and not assessment. In our judgment, there would have to be a strong reason for such action in that the local PME or attending personal physician or specialist would have seen the veteran and would have contributed to all his medical records either on the district file or on the physician-specialist file. Given this ongoing concern, we suggest that this subcommittee recommend that the role of the medical advisor remain under careful study and that a specific report be made by the department to the minister, with a copy to the chairman of the Senate subcommittee, regarding the current role being played by medical advisors.
I might ask Mr. Chairman if Ms Lavell could speak to this issue because I think in your discussions with the Legion, and in our own experience, there are some examples of which you should be aware so that you can understand the substance behind this recommendation.
Ms Faye Lavell, Director, National Council of Veteran Associations: Mr. Chairman, first, on balance, we have noticed an improvement in this area. However, we still have some concerns. In particular, we are concerned with the overruling of a physician's report. We have found that there are still instances in which there is evidence that the medical advisor is overruling the opinion of the treating physician who, in many cases, is a specialist in orthopaedics or is a physiatrist.
There also appears to be a reluctance on the part of the medical advisor to accept clinical diagnoses of osteoarthritis versus an x-ray report, even when these diagnoses are made by specialists. I am speaking here mainly of cases in which a leg amputee, for example, develops osteoarthritis in the lumbar area or develops problems in the other limb.
It appears to us from our observations that the medical advisor requires a clear etiological relationship or the claim is refused in some instances. Again, I am speaking of the amputee who develops problems in the lower back area or in the other limb. These problems can be caused by other factors, such as an altered gait pattern, stress on the contralateral limb and stress above the site of an amputation. From our perspective, we do not feel that these things are necessarily being taken into consideration by the medical advisors.
It may also be of interest to the committee to know that some of these same problems are found in endeavouring to determine eligibility for health care.
Senator Cohen: Is that the same as the Legion's recommendation on the consequential claim?
Ms Lavell: We are speaking more of where we are not getting entitlement for a condition that is as a consequence of a primary pension condition.
Senator Cohen: It is in the family but it is in another area.
Mr. Forbes: That is a fair comment. The Legion's position is on a very technical question of whether, under the act, you can build from a primary to a consequential to another consequential claim.
Ms Lavell: I believe the Legion was talking about assessment as well.
Mr. Forbes: We would like to leave that recommendation with you. There are still some residual problems with regard to the role of the medical advisor within the system. I suspect you will obtain certain advice from the department on that point.
The only philosophy with which we are left is that when the minister, the secretary of state and the deputy minister appeared before the various parliamentary committees and the Senate they took the position that if there is a personal physician's report on file, it should supersede any reaction of a medical advisor within the department if there is a conflict. Generally speaking, we suggest that is happening. However, some residual problems remain.
We will now turn to examine the role of the Bureau of Pensions Advocates. The function of the bureau was addressed at considerable length in our submission to the subcommittee in June of 1995. We remain convinced that in order for the objectives of the bill to be achieved fully, significant measures will have to be adopted in regard to the working relationship between the bureau and the VRAB and, more particularly, the operation and review panels and appeal boards.
It was our opinion as expressed to this subcommittee that in order to reduce the backlog of cases, dramatic procedural steps would have to be initiated to impact on the case load. In our view, the philosophy and pace of the former system was totally unacceptable and prejudicial to the interests of the veterans' community.
It must be remembered that the bureau handles approximately 90 per cent of the cases in the system. They are a significant player at the review and appeal levels.
Mr. Chairman, we have received copies of documents from the department and the VRAB as to the analysis of results in the first year of operation at all levels of adjudication, including first level, review and appeal. Although there are indications of positive developments, it is clear there still exists certain delays and time lags in the adjudicative appeal system under the Pension Act, and they must be addressed. A preliminary review of the caseload appears to suggest that inroads have been made on the question of backlog at the VRAB level. Indeed, recent statistics that we have received demonstrate that the VRAB workload has been significantly reduced during the first year of pension reform. It is our understanding that on September 15, 1995, there were 6,044 review cases awaiting hearing. On September 15, 1996, this has been reduced to 2,668. During the same time frame, there were 2,281 appeal cases at the beginning of the system. One year later, this has been reduced to 1,534 cases. Our comment, obviously, is that this is commendable.
The question of turn-around times, however, remains a significant problem, particularly at the review appeal stages. We have taken note of the positive measures that have been recently adopted at the VRAB by the chair and his executive staff, including the establishment of a considerable number of hearings before one-person panels -- something which, obviously, improves the logistics of the board -- the substantial utilization of video conferencing from various locations across the country, and the recent creation of a draft case management policy which establishes firm time limitations between the date that a case is registered by the advocate and the date of hearing. We will talk about that later.
In our judgment, these policy developments within the VRAB are fundamental to improving the current turn-around time requirements at the review appeal levels. The fact remains that a careful analysis of statistical charts demonstrates that the time for preparation of an application for review or appeal by the bureau is the most substantial portion of the turn-around times calculation. These charts and graphs reflect the following experience over the course of the first 12 months of operation, that is, September 15, 1995 to September 15, 1996.
In regard to the review level of the VRAB, the turn-around times fluctuated from 11. 4 months to 11. 8 months. In regard to the appeal level of the VRAB, the turn-around times fluctuated from 10. 6 months to 12. 2 months. It has been our understanding throughout the ongoing analysis of the Pension Act adjudicative system that the advocacy or preparation stage of the review appeal system takes up to at least 70 per cent of the total turn-around time. In effect, it has taken the bureau an average of from seven to nine months to reach the stage of perfecting their submission and reaching the point of readiness for an actual hearing before a review panel or an appeal board.
We suggest, Mr. Chairman, that if the new system is to result in the vastly improved performance levels that the department and the veterans' community would wish to achieve, the time allotted to this stage of the overall process must be significantly reduced.
It is cold comfort that the system appears to be operating more efficiently if it takes that much time at the review appeal level. We are encouraged by results at the first level, but there is still work to be done at the review and appeal levels.
We would also take note of the recent recommendations by the chair of the VRAB with reference to the encouragement of written submissions to facilitate the streamlining of this process so as to accomplish the required objectives. As we stated at both the parliamentary standing committee and the Senate subcommittee hearings in 1995, the NCVA war amps service bureau has followed for more than 10 years a policy of employing written submissions for the greater majority of our cases. We strongly believe there is considerable merit in this approach. I will be asking Ms Lavell to comment on this process as well since she sees this on a day-to-day basis.
I might mention to you that we are essentially dealing with a classification of veteran which we might constitute as seriously disabled. That creates a different type of environment.
With regard to the value in the concept of written submissions, at page nine of our brief, we suggest there is no real evidence to suggest that the greater majority of World War II veterans of average age 75 are interested in their day in court. The stress and strain that an oral hearing places on a veteran of this age group is immeasurable, particularly given the degrees of disability and incapacity often suffered by many of these veteran applicants. It is our view that a comprehensive written submission supplemented with appropriate medical reports, familial evidence, and so on allows a review panel to properly adjudicate on the individual veteran's application. Indeed, it might be argued that such an approach actually enhances the chance of success for the veteran seeking pension entitlement for the granting of a special allowance.
We are suggesting that sometimes the veteran is his own worst enemy with regard to a personal hearing. There is much pride involved. There is difficulty describing the incapacity, the disability, and the degree of care that a wife must bring to the exercise. Ms Lavell will speak about that a little more. However, that is why we feel strongly that the written submission actually enhances the chance of success in certain cases.
As well, the self-evident time efficiency in the utilization of written submissions is fully revealed in our experience over this past 10-year period. It would appear to us that the employment of written submissions would maximize the utilization of VRAB members so that the logistics of setting up countless review panels across the country would be reduced.
It must be pointed out that, over the course of the last 10 years, the war amps service bureau has submitted literally hundreds, if not thousands, of entitlement claims and special allowance claims through this mode of written submission. Our record of success with reference to these individual claims would strongly suggest that the individual veteran applicants have suffered no prejudice in using this form of communication.
Mr. Chairman, I would ask Ms Lavell to add to these specific areas.
Ms Lavell: As mentioned, the largest group we represent is the most seriously disabled veterans in Canada. We have found that they simply are unable to attend hearings.
In one situation, we had arranged for an entitlement board for a particular veteran, and the morning of the board hearing he suffered a heart attack. With all their disabilities and the stress of even trying to get to a medical appointment in their own city, you cannot imagine how difficult this is for an amputee who has 19 other medical conditions. These are the kinds of people that make up the large share of our workload within the service bureau.
We have made it a practice in our service bureau to put a great deal of time and effort into the first application level. This is particularly true in the area of the exceptional incapacity allowance or EIA and the attendance allowance. We make it a practice to examine the service records of all our applicants. We obtain appropriate medical reports to substantiate claims. This in itself can take a great deal of time at the first level. We ask the doctor to provide us with information as to the individual's level of incapacity, the degree of assistance that he requires, his pain and discomfort level, along with a complete list of all his disabilities and how these disabilities may affect him on a day-to-day basis.
When we are handling entitlement claims, we must establish the connection between the applicant's service record and the claim condition. If it is a consequential claim, we must establish a relationship between the new condition and the previously pensioned condition.
Going back for a moment to the special allowance claims where we do spend a great deal of our time at first level, we also obtain information from the family. Who can judge better the kind of assistance required or the level of this particular individual's incapacity than that person who looks after him 24 hours a day? I am speaking, of course, of his spouse.
We have found in the operation of our service bureau that putting all of this effort into the first level has stood us in good stead for two reasons: first, our success rate at first level has been fairly high; and second, if there is a requirement for us to go to appeal, we can have our case ready to go in a month. We already have all the information we need, and all we need do is perhaps obtain a little more information from the spouse or clarify some point with the doctor. We do not have a long waiting period between the first decision refusal and going on to the appeal level.
Senator Jessiman: Does that apply more under the new system since 1995, or is it about the same as before?
Ms Lavell: We can be ready to have the case heard in a month. Our preparation time --
Senator Jessiman: That is the same as before.
Ms Lavell: Yes. We have used this practice of written submissions, as Mr. Chadderton has mentioned in his brief, for many years. We have also used the practice of preparing and gathering much information at the first level so that when it has been necessary for us to go to the appeal level, we can be ready to go in 30 days. We do not then need to gather all this additional information.
Under the new system, and under the commission system to a certain extent, we do use the administration review quite frequently. We have found this to be very successful under the new system.
The Chairman: You have the advantage of having been on the ground floor in preparing the application.
Ms Lavell: Yes, sir.
The Chairman: That would not necessarily apply in all cases.
Ms Lavell: Do you mean in all other cases?
The Chairman: Yes.
Ms Lavell: No, it would not.
The Chairman: I could see where the BPA would be required to start from the beginning and obtain all the information. I imagine there are still a number of veterans preparing their own applications, and they might not be as complete as yours would be after your years of experience.
Ms Lavell: That is quite true.
Mr. Forbes: You have touched on a good point, Mr. Chairman. A valid question with regard to the new system, obviously, is the performance levels of pension officers, who are governmental employees. We would like to think, and certainly our NCVA experience would suggest this, that we have had little complaint and that over time they too will develop an expertise which will allow them to prepare a complete and comprehensive brief so that the bureau, when they get that case on appeal, has more of a foundation, if you like. There may be a transitional problem.
If we could return to the brief on this point, there are grounds, in our opinion, that indicate that it may be a useful procedure for the VRAB to actually give priority to individual applications which are prepared to utilize the written submission procedure. This would encourage the employment of written submissions and, at the same time, preserve the right of the veteran applicant who wishes to have an oral hearing and to offer verbal testimony to support his case.
I might mention that we have had significant undertakings from the VRAB -- which I am sure they will confirm later this week if you inquire -- that if written submissions were utilized, their capacity levels are such that they could handle cases in a much quicker fashion. You can imagine the logistical problems of setting up panels across the country to hear four or five cases per day. It does not require too much imagination to determine how many written submissions one could adjudicate in a given day. Again, we are not trying to emphasize turn-around times and efficiency above all else but our experience leads us to suggest that, in effect, the success ratio is still very high using this method. We are trying to address the whole question.
I appreciate the Legion's perspective that they do not want to jeopardize the integrity of the system. However, I do think that the question of turn-around times was a major and substantial priority for the passing of Bill C-67.
On this point, as a hybrid of this particular recommendation, interim procedures could be established for written submissions to be filed in a form of pre-trial or interim review within the VRAB structure. Should questions be raised by the written submission, the applicant or his advocate could be consulted and given the opportunity to either clarify the issue or to request an oral hearing, if that is deemed appropriate. That procedure would represent a safeguard in those cases where the board was not satisfied that the written submission was sufficiently comprehensive in outlining the applicant's case.
It is vital, in our judgment, Mr. Chairman, that we do not return to the deficiencies of the old system where the backlog was allowed to build up due to the procedural and attitudinal obstacles and inefficiencies inherent in that system. We must return to a basic premise. The bureau and indeed all advocates presenting cases at the review appeal stage must be prepared to recognize that a major effort will have to be jointly undertaken to accomplish the desired objectives of Bill C-67.
We cannot but reflect on the fact that the average veteran sees this system as a collective process and is not often able to distinguish the effect that each individual component has on the time that it requires to obtain an appropriate decision or appeal result. In our view, it must be remembered at all times that the interests of an ageing body of veterans must be the first priority and that the speedy and efficient adjudication of their pension claims must be kept at the forefront.
At page 12, we have a rather lengthy recommendation with regard to the bureau: That the department prepare a report to the Minister of Veterans Affairs, with a copy to the chairman of the Senate subcommittee, addressing the relationship between the Bureau of Pension Advocates and the Veterans Review and Appeal Board in regard to the question of turn-around times and an evaluation of the case management policy currently being implemented by the VRAB.
It is recommended further that this subcommittee consider, with the intention of addressing the issue of turn-around times in relation to the filing and presenting of reviews and appeals before the VRAB that, (a) advocates be required to utilize written submissions to a greater extent than is currently the case, as opposed to the employment of personal hearings; (b) advocates be required to demonstrate the need for a personal hearing as compared to the use of a written submission with the end result that such personal hearings be the exception and not the rule; (c) time limitations be established as to the period of time allowed to advocates between the filing of a review appeal application and the point of readiness to present a case before the VRAB; and (d) the VRAB exercise appropriate discretion in extraordinary cases to extend such time limitations to advocates to address exceptional circumstances.
There may be some concerns that time limitations seem somewhat strenuous and that they are necessarily in the best interests of the veteran. You must remember, first of all, what Ms Lavell has said about the time that is usually required by the war amps service bureau to bring an appeal. More important, if I am in the Bureau of Pension Advocates and I am trying to establish whether I have a review or an appeal case with merit, surely I will gather my evidence before I register that appeal.
I know that is not the procedure today. Often the appeals are registered right away. I am suggesting that the time frame between the date when I decide that I have an appealable case and the date that I am ready to appear before that board should be much less than it is today. We are suggesting that what we see in the case management policy of the VRAB has merit.
I would like to touch on that, Mr. Chairman, in concluding on this point. It is our understanding from recent information from the department that preliminary steps have been undertaken to enable the bureau to commit to establishing a turn-around time of four months from the date on which a review request is registered until the date of hearing and three months from the date that an appeal case is registered until the date of hearing.
The bracketed numbers you see in the brief indicate that there is some confusion. You may pick up on this later this week. It is our understanding that the bureau and the VRAB are working on a process where the time from the point of registration to the point of readiness is three months. The VRAB has undertaken that within one month of that point, the case will be heard.
That is a marked improvement from where we are today and where we have been under the old system. At the appeal level, that will mean a two-plus-one-month analysis.
In addition, Mr. Chairman, we are encouraged to note that the bureau will be endeavouring to increase significantly the number of claims presented to the appeal level. Procedural measures will be adopted to ensure that all claims older than six months are scheduled and heard by the spring of 1997.
Furthermore, it is our understanding that all cases at both the review and appeal levels registered prior to September 15, 1995, will either be heard or scheduled by January 1997 -- this month -- and that the VRAB is committed to reducing the time between presentation and decision to one month to enhance the turn-around time analysis in this regard.
Ms Lavell: Regarding the written submissions, as I have already mentioned, much of our work lies in the field of applications for EIA and attendance allowance or increases in special allowances. This committee should be aware that, even with a written submission, problems can arise at the other end when the adjudicator reviews the submission. Something may be missing or, for some other reason, the decision cannot be made. I have had several phone calls from the adjudicators in Charlottetown asking for information because the written submission is not clear. That happens quite often. It is rather nice to be able to talk to the adjudicators in this manner. Rather than refuse a case, they will make the effort to find this information. I find this is a good way to operate.
The Chairman: When you stay "adjudicator," you are referring to the first application?
Ms Lavell: Yes, I am, sir.
The Chairman: That in turn will probably help reduce the number of appeals.
Ms Lavell: Yes. The same is true in asking for a review when new information can be offered to a case.
Mr. Forbes: On that point, not to diminish its importance, a veteran who loses at first application does not have to go immediately to the appeal process under the VRAB. He can ask for a review. When we first saw the section 82 ministerial review under the act, we wondered just how effective it would be in that it seemed to be fairly restrictive as to the grounds available for such a reconsideration. However, it has been used extensively. It has been encouraged by the department at first level.
As you know, the statistical results seem to be very positive, that 68 per cent of applicants who use that route are winning. Quite frankly, we would suggest that that mid-step before the appeal to the VRAB would be of great significance if some sort of coordination could be worked out between the bureau and the department. It is a sort of mid-step which does not involve the bureau necessarily.
We have a proposed legislative agenda from the NCVA annual general meeting. I will touch on a couple of major points in that regard. You have our brief with the full list of recommendations.
There are two areas on which we want to focus. The first deals with merchant seamen. As the Legion was saying, there have been improvements with the new legislation passed in 1992 with regard to the pensionability of merchant seamen.
We should like to emphasize recommendation two from the NCVA annual general meeting. In addition to the paralleling of the merchant seaman legislation to the Pension Act and the War Veterans Allowance Act, we would ask that the government pay a lump sum to Merchant Navy veterans and to civilian personnel covered under the Merchant Navy Veteran and Civilian War-Related Benefits Act in compensation for the benefits under the Veterans Charter, which were not made available to such persons in the same manner as were made available to veterans of the armed forces; that in no case should the amount be less than $5,000 if the person served a period of at least six months; and, further, that the lump sum take into account the time served.
We will have a few comments on that in a moment. Perhaps we could deal with POW compensation now. There are a few areas of serious concern to us at NCVA.
First, that POW compensation be recognized as deriving from "disability", even though such cannot necessarily be substantiated by medical diagnosis; second, that the Pension Act be amended to provide that POW compensation under section 71 be taken into account and apply in all relevant sections of the Pension Act, including attendance allowance, sickness and burial expense and exceptional incapacity allowance; and, third, that POW compensation be considered as "war-related" in respect of the Veterans Health Care Regulations so that a recipient of POW compensation would be entitled to health care benefits, VIP and long-term care in a departmental facility or contract bed.
We also have recommendations with regard to adjusting the POW compensation rates. Those are found in items 4 through 6 of our brief.
If I could jump to page 16 of the brief, we do not wish to read into the record recommendations 6 through 12. We would ask that those be tabled with the committee. They are substantial recommendations, but today the focus is on Bill C-67. However, we did not want to miss this opportunity to put those recommendations in front of you.
I wish to turn to the merchant seamen act. It is tragic in our view that the Canadian government did not recognize the tremendous contribution of the Canadian merchant seamen immediately following World War II. We are familiar with the history -- that is to say, the government of the day -- and, presumably, the public servants whose task it was to advise the government failed to recognize the tremendous dangers and hardships involved in the Merchant Navy Service during World War II.
There was also considerable misinformation as to the terms of service and remuneration. Considering the former, the merchant seamen were certainly required to place their lives on the line under a contract with the Canadian government. While it may have been true in some cases that the remuneration was in small measure greater than that, for example, of the private soldier, the difference was certainly not sufficient to warrant exclusion of the Merchant Navy veteran from full veteran status and full veteran benefits.
It is true that amendments to the merchant seamen act of July 1, 1992 made some improvement. The major discrepancy, however, is easily understood. The legislation made no provision for the fact that compensation was not on a par with that for veterans of the regular military forces. This is particularly true in regard to certain benefits. On pages 17 and 18, we have reproduced a list of examples of the kinds of benefits that were available to veterans returning from World War II which were not available to merchant seamen, and that is an aspect of this area we would like to emphasize.
The Chairman: Mr. Forbes, in view of the fact that time is quickly passing, could we have a motion to have the remainder of your brief attached to our minutes?You could then quickly highlight the most important ones.
Mr. Forbes: Yes.
The Chairman: Could I have a motion in that regard?
Senator Jessiman: I so move.
The Chairman: Carried.
Mr. Forbes: I would be more than happy to do that. The comments with regard to merchant seamen can be concluded with the one very strong recommendation that this lump sum payment be given as consideration for those benefits that were never received by the merchant seamen. That is NCVA's recommendation with regard to merchant seamen.
Senator Cohen: What about the merchant seaman who has passed on leaving behind a spouse?
Mr. Forbes: That is a very good question. It will have to look at that in the context of the statute. The spouse certainly would have been a beneficiary if the legislation had been there in the first place.
We have that common problem with a lot of our benefits, and this is another example.
In our brief, we are suggest that the statutes for POWs have one major flaw, namely, that the POW allowance does not constitute a pensioned disability under the Pension Act for the purposes of all other benefits. The POW allowance for the purposes of attendance allowance does not constitute a pension disability and it does not find its way into the calculation of an EIA or exceptional incapacity allowance prerequisite. In fact, it does not find its way into any area where pension disability is a prerequisite.
History tells us that that legislation that finally came to the books in 1971 was based on undetermined disabilities -- that is, not on anything else but disability -- and that one area has not found its way yet into the Pension Act. We are strongly urging that the POW statutes be amended so that it is considered to be a pension disability like all others.
Cliff Chadderton has spent a great deal of his life dealing with the Hong Kong claim, as I have. That whole history suggests that there has been a delay in recognition for POW benefits right across the board. This is another example of how it finds its way into the Pension Act.
I might ask Ms Chisholm to speak to you briefly. You may want to use the synopsis on the Gulf War syndrome. That would then conclude our submission.
Ms Danita Chisholm, Director of Communications, National Council of Veteran Associations in Canada: During the NCVA annual general meeting on October 31, a recommendation was approved concerning the so called Gulf War syndrome and the Gulf War veterans. We should like to present that recommendation today. Because of the time constraint, I will keep it brief.
Approximately 4,500 Canadian military personnel served in the special duty area known as the Gulf War. According to our information, approximately 350 of these personnel have submitted or will submit claims to the Department of Veterans Affairs for pensions arising out of Gulf War service.
It would appear the pension authorities are attempting to deal with these cases in a rapid and generous manner. Some difficulties that are occurring, according to our investigations, are due to the problem in relating the disabilities to the type of or conditions which applied during the Gulf War. There seems, however, sufficient evidence to indicate that a Gulf War syndrome exists.
A special study committee has been established under the Minister of National Defence but the problem of identifying a specific cause and effect of the disabilities developing in Gulf War veterans will presumably require many years of study and may in fact be an impossible task.
Studies have been carried out to date mainly in the United States. In Canada, a study commissioned by DND was carried out by Dr. A. B. Miller of the University of Toronto and filed January 23, 1996.
There is a rather lengthy excerpt from his report in our submission and I will condense it to a few highlights. He pointed out that a unique cluster of symptoms leading to a specific Gulf War syndrome had not been identified. Rather, there was a collection of diagnoses, some with known causes and treatments, but many fell into a symptom complex, with different labels applied but overlapping features.
Dr. Miller stated further that there seemed to be little doubt that for the majority of those so labelled, the symptoms were very real, but the extent to which there may be various non-specific or exacerbating overlays could not be determined.
Further on he stated that it would be several years before final conclusions would be possible and also that, although a great deal of research was being done in the U. S. and the authorities in the U. K. seem to be prepared to wait for the results of this research, he did not believe that it would be appropriate for Canada. He also said that practising the basic epidemiology required would be difficult to do in the U. S. Furthermore, it would not necessarily transfer directly to Canada.
We are using as a precedent the situation with Canada's Hong Kong veterans. They ran into a similar situation. The medical problems which they had from their incarceration in Japan were largely unknown due to the lack of data on disease factors in the Far East and the fact that many of their symptoms did not arise immediately when they returned home. This delay in treatment caused serious side effects and consequences in later years.
Overall, a delay of some 25 years existed before a provision was enacted. That was a base pension giving them 50 per cent.
It seems evident from the experience in the U. S. that many years may be required to determine a direct linkage between epidemiological studies and the symptoms now being suffered by the Gulf War veterans. Therefore, we are recommending that the subcommittee request the minister to consider the following proposals. First, all Canadian military personnel who have the basic qualification of having served in the special duty area identified as the Gulf War be entitled to a basic compensation of 5 per cent under the Pension Act, provided that an acceptable disability exists. Two, such pensioners be entitled to all the benefits under the Pension Act, including those applicable to dependants. Three, no attempt be made to quantify the percentage based on medical reports of the extent of disability or the length of service in the Gulf War area. Four, adjudication of claims for traditionally recognized disabilities continue to be adjudicated under section 21 of the Pension Act and that, if approved, a pension be paid separate and apart from the basic pension of 5 per cent herein.
One of the advantages of this proposal concerns medical treatment. Under existing provisions, a Gulf War veteran would not qualify for medical treatment until and unless he or she has what is known as entitlement under the Pension Act. This recommendation would give them that foot in the door by giving them the 5 per cent.
Just to close with an update, the U. S. report from the American presidential advisory committee came out on January 7, 1997. It criticized the idea of coming to early conclusions about the Gulf War syndrome, but concluded that so far no evidence had been found of a relationship between service in the Gulf and complaints of U. S. military personnel. The report appears to support our contention that there are definitely symptoms which cannot be identified. The indication is now that further studies will be carried out. Our view is that we should not wait because the illnesses are of the type which may only get worse with the passage of time.
I would like to conclude with a quote from the Washington Post the day after the report was released which was:
(B4) President Clinton said yesterday that he supports possibly changing disability rules for Persian Gulf War veterans in a way that would allow more of them to get disability payments for "undiagnosed" illnesses.
Mr. Forbes: That is the full extent of our submission to you, Mr. Chairman.
The Chairman: While we are on the subject of the Gulf War syndrome, I am sure you heard the Legion brief say that Mr. Nicholson indicated in a letter that the omnibus bill would make technical changes but that they were not in a position to include anything that would increase expenditures to any great extent.
I am wondering, as an alternative, if we considered the compassionate awards section that is already in the act. This has been used in severe cases, such as Lou Gehrig's disease, to allow people to receive full treatment. Pursuant to the legislation, people could be given immediate compensation until a determination of the cause is made.
Mr. Forbes: Mr. Chairman, I think your idea is an enlightened one as far as history is concerned. The only concern I would have is that treatment benefits do not generally flow from a compassionate award under the Pension Act. That could be part of an amendment that you might propose.
As you know, the compassionate award has a unique status under the act. I believe I am correct in saying that there is a problem with treatment benefits flowing from that type of award. That is why Cliff Chadderton and NCVA has gone to a 5 per cent pension rate proposal, which would not be terribly expensive if Mr. Nicholson is concerned about the costs which might flow from such a recommendation.
The important thing is that veterans have treatment benefits for whatever it is that is ailing them. The definition is difficult. It is undiagnosed, ill-defined and it reminds one of what happened to the Hong Kong veterans who for 25 years were not awarded pensions because no one knew what was really afflicting those veterans. Cliff Chadderton's view is that we do not have the time, nor would it be equitable or just to put these veterans through years and years of process and analysis.
I think your idea has merit. I think it is a question of whether we can fine-tune it so the concept of compassion also results in certain benefits flowing from that award.
The Chairman: Perhaps we could get an agreement from the department that benefits could flow without making an amendment.
Mr. Forbes: Yes.
The Chairman: I wanted to ask you about the coverage for reservists. Many of those who served in the Gulf War zone were reservists. I am having some difficulty getting this clarified in my own mind as to the treatment they are eligible for. I understand there is considerable inequity between the treatment provided to a reservist and a member of the permanent force.
Mr. Forbes: Mr. Chairman, at the NCVA meeting held in Toronto in October 1996, we had a person representing the reservists involved in the Gulf War. We have a paper which you my find of interest, dealing with this entire question. They feel there is a gap under the Pension Act and that they are not treated with equal standing. Your question is a good one. The NCVA has agreed to take that matter up, and we will be pursuing it with the department.
The Chairman: Perhaps you would be kind enough to send the members of the committee a copy of that paper.
Mr. Forbes: We certainly will.
Senator Jessiman: At the first level of application, is there a transcript of the evidence or do they just appear before the person who works for the government?
Mr. Forbes: It is all done in-house, yes.
Senator Jessiman: At the review level, is the evidence transcribed?
Mr. Forbes: It used to be transcribed, senator. I do not think it is any longer.
Senator Jessiman: What about the appeals?
Mr. Forbes: I do not think there is a transcript there either unless it is specifically requested.
Senator Jessiman: Your suggestion that it be in writing is just that, that it be in writing. It is like a trial de novo in law, even though you start from there and you bring in new evidence or whatever, but just put it in writing. Perhaps a better job would be done by putting everything in writing.
Mr. Forbes: Let me give you a specific illustration of why we feel it might be more effective. One is restricted to a 20-minute presentation at an oral hearing. Combined with the oral evidence from the veteran there may be a witness, and you then have to verbalize your arguments.
I would suggest, as an advocate of some tenure, that I would prefer to be given the opportunity of making a written submission, which would allow me to encompass all the veteran's comments and the family's evidence, and then to make my legal arguments and pitch to the review panel and the appeal board.
My reaction to your question is, yes, I think there is a better chance of success. I respect what Mr. Annis said with respect to the eyeball-to-eyeball approach; however, there are some veterans who simply cannot give their best position in that particular environment.
Senator Jessiman: Has there been enough history and examples to support that approach?
Mr. Forbes: Let me give you the whole picture from the war amps bureau service. About 99 per cent of our submissions are done by written submission. We are dealing with attendance allowance, exceptional incapacity allowance and consequential claims of the most severely disabled veterans in the system, whether it be war amps, Hong Kong veterans or other class cases. We feel that the written submission is a more effective tool.
Senator Jessiman: I had some concern that persons who sit on the review and appeal boards are really the same group of people. Even though they are part of the same group now, are a certain number of them looking at reviews and a certain number doing appeals or is it mixed -- one day Mr. Smith is sitting as a review officer and the next day he is sitting on appeals?
Mr. Forbes: I believe they are intermingled. I believe they think there is value in having it intermingled so they can create more boards. There is the policy of the chair of the VRAB that they do not sit on their own reviews.
Senator Jessiman: However, they sit on others. If I sit on a review panel with you today, tomorrow you might be sitting on an appeal of mine and I might be sitting on an appeal of yours.
Mr. Forbes: To be fair to the Legion position, they were talking about reconsiderations, of course, under this section-23/section-32 philosophy, where there is indeed a repetition of the same members when they are reviewing their own decision at reconsideration stage. I think we can support the Legion, as there are some concerns there. However, just so you have the full picture, a veteran has literally six bites at the apple. At first level there is an application; there is a ministerial review, under section 82; there is a review panel; there is a reconsideration potential at review panel; there is an appeal.
Senator Jessiman: Who does the reconsideration?
Mr. Forbes: The same panel.
Senator Jessiman: However, they ask that the panel not comprise the same members?
Mr. Forbes: Yes, particularly in questions of law, and I can see some merit in that because you are trying to get a more open-minded individual to look at the case anew. I am saying we have to be careful that with all the appeals and reconsiderations and so on, we do not develop a backlog again because all these rights are being exercised to the point where we have no control. Although we support the Legion's concern, I think they would agree that there must be a limit on the types of reconsiderations that can be given. We suggest to you that the veteran under this new system has a number of opportunities to make his case.
Senator Cohen: I wanted to ask your opinion about the Legion's recommendation of a deputy chair. In listening to your submissions, it seems that Ms Lavell does in your department what the Legion has said the deputy chairman used to do. Do you have an opinion on that?
Mr. Forbes: I think the reaction we might have is that a deputy chair would be of value to the present chair, whom we know personally and well, and who is doing an excellent job. At times, I think, he would like to delegate to someone else some of the administrative tasks which he handles. We are of course familiar with what happened in the commission, where they had a deputy chair. For years, the PRAB had a deputy chair. I would have to defer to the Legion on this point. We do not have a strong feeling one way or the other but I understand their position.
Senator Cohen: We are going to Charlottetown, as you know, to discuss the revised adjudication. On the basis of your visit and your experience with adjudications over the past 18 months, are there any questions that you would like us to be sure to ask?
Mr. Forbes: I would suggest one thing, which is the one area we did not discuss in the brief. It is not a particular concern today but it is always a concern under this legislation.
In the past, the Canadian Pension Commission established policy guidelines, the table of disabilities, and, basically, the rules of operation with regard to individual cases. That is now a departmental responsibility. We are very vigilant about policies, guidelines and tables. If people are starting to revise those things, that will have more effect on individual claims than any statutory amendment, because those policies and regulations are very significant. I have nothing to point to today but that is an area on which we maintain a watching brief. I am sure the Legion and other veterans' organizations do as well, because more can happen with a very quiet policy change than through any other vehicle.
Senator Jessiman: Have any of the applicants in the last 18 months complained of the fact that they have not had the use of the bureau people?
Mr. Forbes: I do not think we have heard that complaint.
Senator Jessiman: Did you use the advocates before the new legislation?
Mr. Forbes: You have to remember that we come to you wearing a couple of hats. The war amps service bureau only handles a small number of the NCVA claims, so the NCVA people who are making cases within the system would have to use pension officers now and not have access to the bureau.
Senator Jessiman: You had access before. Do you find it is more difficult now?
Mr. Forbes: This is an area where we might differ slightly from the Legion. As we said to you in June of 1995, we see the first application stage as not requiring legal expertise. It was the position that Cliff Chadderton took and it is the position we take now for the first level. There are paralegals working in the field now. There are people who are used to collecting information and obtaining medical reports. It is more of that kind of a function. I would hesitate to suggest there are more than a small percentage of cases where legal issues are raised at first level. Those can find their way into the system at appeal and review.
Senator Jessiman: Prior to this new legislation, even though it was not necessary, were they always used?
Mr. Forbes: Oh, yes. The NCVA people had access.
Senator Jessiman: As far as the limited number of applicants that you look after, it has not hurt, as far as you are concerned?You have not had any applications turned down or they have not felt that they were not prepared properly?Do you think you prepare them as well, certainly at the first level, as before?
Mr. Forbes: I would have to say yes, but I also would suggest to you that the safeguards in the system must be very closely watched, the safeguards being that if I lose a case at the first level, there has to be -- and I think Mr. Rycroft made a good point -- significant focus put on what happens to the case next. Does that individual have enough information to realize that he can go to the bureau and have his case reviewed or appealed? Does that individual have enough information to know that a section 82 ministerial review exists? I believe that must be watched very carefully, otherwise there may be the odd veteran who will drift away without knowing that there are recourses and appeal routes. I know we brought this up to the department and, again, I do not think we can underemphasize that point. That is a very important concern.
Senator Jessiman: I would have thought that once a case has been heard and turned down at the department level, they might hand the applicant a sheet saying, "These are your rights."
Mr. Forbes: They do have such a document, senator.
Senator Jessiman: The problem is getting the veterans to read it.
Mr. Forbes: That is right. The reality of having a document is one thing, and actually having someone give you a sense of what you can do is another thing.
The Chairman: I would like to refer to your recommendations on the Bureau of Pension Advocates. I think you were reading my mind when you said that no doubt there would be some concern that expediency is becoming the prime element. I have a feeling, too, that expediency has become more important than quality. In cases that I have worked on with the Bureau of Pension Advocates, they have gone back to regimental logs. Many of these regiments are now reserve units, with volunteers, essentially, getting the information out of a log. That makes it most difficult and requires a lot of time. Then getting the specialist's report could take four or six months.
Mr. Forbes: Sure.
The Chairman: I have worked on cases where the applicant has seen the specialist, but the specialist seems to have his own way of refusing to submit a report to VAC. Your recommendation in that regard is causing me some concern. However, I would like to add that I regret that Mr. Chadderton is not here because he and I always agree on medical advice.
Mr. Forbes: I recall those exchanges from many years ago, senator.
I would just say this about your concern: There are cases where, indeed, it takes quite a while to get a medical report or a specialist's report or it takes significant time, in a bona fide way, to get that appeal perfected. That is why we have added to our list of recommendations that the VRAB have the discretion to extend the time. I think extending the time in the circumstances you have raised would only be fair and reasonable. We do not mean this to be a Draconian system but I think everyone has to buy into a system where there are time limitations.
I would come back to one further point, and that is that, before I register that appeal with the Bureau of Pension Advocates, I would like to think I had the medical report that you are talking about. After all, what is the point of appealing if I do not have that medical report which makes the case stronger? I think there is a procedural way of dealing with it but I think your point is well taken.
The Chairman: If the timing was considered after all the medical reports were received, I would be much happier.
Mr. Forbes: Yes, I think that is a fair comment.
The Chairman: I do not think you have made yourself clear in that regard. One of the complaints I receive from the Department of Veterans Affairs and BPA is access to information from the archives. Do you people have a problem with that?
Ms Lavell: No, but, as I say, we handle only a limited number of NCVA cases. We offer more in the area of advice and counselling. When we were handling individual cases for the Hong Kong veterans we had no problem.
Mr. Forbes: To be fair to the Legion recommendation, there seems no reason to restrict access. I think the Legion proposal is a good one. In fact, I suggest that if a veteran authorizes his representative, whether it be the Legion, The War Amputations Canada or whomever, they should have access, and that should be sufficient. There should be no limitations. I am surprised that there has not been recognition that authority from the veteran to his representative should suffice.
The Chairman: Thank you very much for your brief and your detailed replies to our questions. I am sure we will find them very helpful when we arrive in Charlottetown and as we consider our report on this matter.
The committee adjourned.