Annex 3: Case Studies

GGI examined three cases handled by the OVO in recent years to assess effectiveness and efficiency. Two case studies (Case 1 and 2) are based on individual complaints. They provide an overview of issues that have arisen from legislative changes in recent years and the complexity of interpretation as a result. Case 3 is a systemic review of the length of time it takes to get a disability benefit decision from VAC, the most common complaint that the OVO has received from Veterans.

Case 1: Survivor Pension

Background

The complainant was an 85-year-old widow of a Veteran who died in 2013. In 2008, the Veteran received a disability award under the Canadian Forces Members and Veterans Re-establishment and Compensation Act (the New Veterans Charter) for his condition of PTSD, a service-related injury. Shortly after the Veteran’s passing, his widow applied for a death and survivor benefits.

During the adjudication of the death and survivor benefits, VAC detected an error regarding the 2008 PTSD decision. It discovered that the decision should have been rendered under the Pension Act which would have meant the Veteran would have been eligible to receive a monthly disability pension and in turn, the survivor would have been entitled to a full survivors’ pension. In a written response, VAC advised that if the survivor wished to pursue this error, she would need to present an appeal at the Veterans Review and Appeal Board (VRAB), which she did.

In February, 2015, VRAB in their decision, instructed VAC to do a recalculation and convert the Veteran’s disability award into a monthly pension and granted five years of retroactive benefits. In the interpretation of the decision, VAC decided that it could not grant a disability award and a disability pension for the same condition. As such VAC created an overpayment of over $136 K to her late husband’s account in order for VAC to reclaim the disability award amount originally paid out to the Veteran.

In April 2016, VAC informed the widow that she would have to reimburse the overpayment through a combination of a deduction from her survivor pension and holding back the retroactive payment ensuing from the VRAB decision. She contacted the OVO in February 2017 following several unsuccessful interactions with VAC.

OVO Assessment and Findings

The OVO reviewed the file. It also noted that VAC had not responded to the complainant’s Bureau of Pension Advocate (BPA) lawyer’s opinion, sent to VAC in June 2016, to the effect that VAC could not claim a reimbursement from the widow after the Veteran’s death and in particular after the estate had been closed for a number of years. In its review of the case, the OVO concluded that the widow had not been treated fairly. Given the age of the widow, the complexity of the file, and the tone of VAC’s communications with an 85-year-old widow, the OVO decided to handle this case on a priority basis.

The OVO advised VAC that it did not have the legal authority to create an overpayment and then claim a reimbursement of the overpayment under the Pension Act because it had been made to the Veteran prior to his death. VAC agreed. VAC reimbursed the widow the money withheld from the retroactive payment and the deduction made to the monthly survivor pension.

Efficiency

The OVO noted that it took two years to resolve the issue from the time OVO received the complaint to the moment VAC communicated its decision to the complainant (February 2017- February 2019). OVO indicated that this was due to the complexity of the file. The sequence of activities on the case was as follows:

• March 2017-March 2018 back and forth with VAC to obtain all the necessary information on the file and to fully understand the situation.
• In March 2018, the OVO asked for an interpretation and position from the Department. A response was provided in May 2018, following which the OVO questioned VAC’s interpretation which led VAC’s asking for its own legal interpretation.
• In October 2018, with no response from VAC, the request was raised to the level of the assistant to the deputy minister (ADM). A favorable response was provided to the OVO on November 26, 2018.
• The OVO made a further request regarding the department’s response and received the final response in January 2019 with a full resolution of the complaint.

Case 2: Career Impact Allowance / Supplement

Background

The Veteran had originally applied for the Rehabilitation Services and Vocational Assistance Program for right and left ankles, left hip, left knee, and chronic pain in June 2017.

In July 2017, the Veteran applied for a Career Impact Allowance (CIA). In February 2018, VAC informed her that her claim for CIA had been declined. VAC denied eligibility because the conditions considered (right and left ankle) did not meet the CIA eligibility criteria. VAC did not consider ‘pain disorder associated with a medical condition’ because this condition was not approved for rehabilitation program services and, therefore, was not taken into consideration for CIA eligibility purposes.

In consultation with the Disability Adjudication Team Leader and National Program Service Specialist, VAC has maintained that there is a distinction between “chronic pain”, which represents a symptom of a physical health problem(s), and the specific diagnosis of “pain disorder associated with a medical condition”, which represents a separate and distinct mental health problem under Chapter 21 of the 2006 Table of Disabilities.

The Veteran later reapplied for CIA and was approved in September 2019 based on a new awarded condition of PTSD granted in April 2019 and the fact that it had been added to her Rehabilitation plan. The Veteran felt that the CIA should had been granted in first application.

OVO Assessment and Findings

The OVO reviewed the file and considered that the Veteran had been treated unfairly. It noted that CIA is payable when the Veteran meets the following criteria:

1. has one or more physical or mental health problems that are creating a permanent and severe impairment;
2. had an application for rehabilitation services approved; and
3. had been granted a disability award or a disability pension.

From its review of the file, the OVO determined that the Veteran’s claim should have met all the above criteria and should have been granted the CIA. The two conditions - 1) the DA condition (pain disorder associated with a medical condition) and 2) the rehabilitation condition (chronic pain) – are related in that chronic pain is an established symptom of the ‘pain disorder associated with a medical condition’.

Although disability entitlement was initially denied once the symptom (chronic pain) was identified as ‘pain disorder associated with a general medical condition’ entitlement was granted. The pain specialist refers to the condition as chronic pain in his treatment plan. Furthermore, the description of ‘Pain disorder associated with a medical condition’ found in the DSM-IV is as follows: “a general medical condition has a major role in the onset, severity, exacerbation, or maintenance of the pain. (If psychological factors are present, they are not judged to have a major role in the onset, severity, exacerbation, or maintenance of the pain.)” The specialist concluded that the Veteran’s symptoms fit the DSM-IV criteria.

The above establishes that chronic pain is a symptom of the entitled condition and is supported by the Pain Specialist.

The evidence also indicated that the DA condition was a component of her rehabilitation program and most likely viewed by the Case Manager (CM) as chronic pain. The CM was coordinating psychological and physiotherapy services with the objective of achieving management of pain levels. Although it is referred to as a mental health problem, it remains that the disability entitlement condition refers to the chronic pain experienced by the Veteran and it is the chronic pain that was approved for rehabilitation program services.

In sum, the basis of the original decision seems to revolve around an issue of terminology. The common denominator is the fact that the Veteran was experiencing debilitating pain in her left ankle for which she is receiving both disability benefits and rehabilitation services.

The OVO recommended a review of the CIA eligibility date retroactive to the date of initial application in July, 2017.

Efficiency

The OVO received the complaint in September 2018 and made its recommendation to VAC in October, 2019. At the time of writing this report VAC had not rendered a decision. Since reception of the complaint the approximate timeline was as follows:

• In November, 2018 VAC declined the Veteran’s application again (N2LA).
• The OVO and Veteran gathered more information for the file. There was correspondence between the OVO and the Veteran in June, July, August, 2019 on the status of the file and applications made to VAC;
• In June, 2019, the Veteran found out that her subsequent CIA application was still at the Adjudication stage.
• OVO contacted Service Delivery in July 2019 and again in October 2019 without yet having reached a resolution.

Case 3: Meeting Expectations: Timely and Transparent Decisions for Canada’s Ill and Injured Veterans

Background

The Review^{Footnote 22}, published in 2018, noted that the length of time for VAC to make a decision on claims is the most frequent complaint the OVO receives from Veterans. To study this issue, the OVO analyzed 1,000 disability benefit first applications and conducted on-site visits with VAC staff. It also reviewed all available internal and external documents that provide guidance to staff on processing and adjudicating applications, including legislation to business processes.

OVO Assessment and Findings

The analysis that the OVO conducted suggested that while VAC met the 16-week service standard for applications from Veterans with World War II or Korean War service, the majority of all other disability benefit first decisions, however, took longer - sometimes much longer.

It found three patterns or trends emerging from the applications, showing inconsistencies on how certain groups of Veterans were treated:

• Francophone applicants waited longer than Anglophone applicants, on average.
• Delays were longer for women compared to men.
• Discrepancies with how the Service Standard Start Date – or the date the “clock starts ticking” – is determined, Veterans with less need may see their applications move forward in the queue before others.
• Disability benefit decisions made under the Pension Act provide better access to treatment benefits.
• Veterans and their families are treated unfairly when the Veteran dies while an application is in progress and they do not have a surviving spouse or dependent child.

The Review also found that:

• A lack of prioritization for those who may be at risk for having unmet health needs.
• A lack of transparency and communication throughout the process, both in terms of how turnaround time is reported and on the status of Veterans application or the reason for delays.

Based on its findings, the OVO made the following seven recommendations (based on the OVO report card, highlighted recommendations have been implemented):

1. Provide equitable access to timely decisions regardless of factors such as the applicant’s gender and language.
2. Standardize Service Standard Start Dates to improve transparency and equity and facilitate accurate performance reporting.
3. Triage applications upon receipt based on health and financial need.
4. Reimburse all Veterans’ health care expenses for approved claimed conditions 90 days prior to their date of application.
5. When a Veteran dies with a disability benefit application in progress, continue to process the application and permit payment to the estate if the decision is favourable.
6. Provide each applicant with an individualized, expected turnaround time for their application, and inform them if the decision will be delayed and why.
7. Provide clients with a checklist of all required documents on the application form and, upon receipt, immediately return applications if required documents are missing.

Efficiency

The OVO noted that the time and human resources (FTE)^{Footnote 23} used for the systemic review was similar to other systemic investigations, as follows:

• Senior management approved the project plan in March 2017;
• Document collection, review and analysis began in May 2017 (1 senior FTE);
• Request for first data sample sent to VAC in summer 2017; received in September 2017;
• Second sample requested in fall of 2017 and received in December 2017;
• Data analysis (review of over 1,000 disability benefit application decisions), document review and analysis (business processes etc.) and on-site visits (2 senior FTEs - co-leads);
• Report writing (once analysis completed) in January 2018 and first draft completed in April 2018 – 2 senior FTEs;
• Report submitted to the Minister in July 2018; and
• Publication in September 2018.