Dual Entitlement - Disability Awards/Disability Pensions

Dual Entitlement - Disability Awards/Disability Pensions

The purpose of this policy is to provide direction with respect to whether an application should be adjudicated under either the Pension Act or Canadian Forces Members and Veterans Re-establishment and Compensation Act (CFMVRCA).

Interpretation of Term "injury or disease"

For the purposes of section 56 of the CFMVRCA, the "injury or disease or the aggravation of an injury or a disease" is interpreted to mean "disability". This interpretation is founded on the principle that an injury or disease or the aggravation in and of itself does not necessarily result in a stabilized disability as required under section 53 of the CFMVRCA and that disability awards are paid for disabilities in accordance with subsection 45(1) of the CFMVRCA.

Adjudication

In specific circumstances, applications submitted for disability awards after the coming into force of the CFMVRCA must be re-directed to the Pension Act.

If after the coming into force of the CFMVRCA, a new claim is submitted for the same disability (i.e., the same medical condition or a different medical condition resulting in the same disability) which has been the subject of an application for pension under the Pension Act and the Minister (or the Canadian Pension Commission) has rendered a decision in respect of that application, the Department will invoke the provisions of section 56 of the CFMVRCA and the claim will be re-directed to the Pension Act for adjudication.

Once under the authority of the Pension Act, the specifics of the new claim will be reviewed and the case will be adjudicated accordingly as follows:

If the evidence presented in the new claim supports a Departmental Review, the application will be dealt with as a Departmental Review and the effective date will be determined in accordance with Departmental Review provisions;

If the evidence presented in the new claim does not support a Departmental Review, the claim will be adjudicated as a "first decision" and the effective date will be established in accordance with subsection 39(1) of the Pension Act; or

If it is determined that the original application has been the subject of a decision of the Veterans Review and Appeal Board (VRAB), the Department will have no jurisdiction on the new application and as such, the claim will be referred to the VRAB for consideration.

Examples - Dual Entitlement Pension Act and CFMVRCA - Canadian Armed Forces (CAF) Service Only

The following examples are meant to demonstrate some circumstances that may present with respect to dual act entitlement claims.

A CAF member applied for disability pension for Lumbar Disc Disease under the Pension Act claimed to be related to his service in a Special Duty Area. The member received an unfavourable decision as the service relationship was not established. Subsequent to the coming into force of the CFMVRCA, the member applies for Lumbar Disc Disease claimed to Regular Force service. As this disability has been the subject of a decision under the Pension Act, subsection 56(1) of the CFMVRCA is invoked and the new claim for Lumbar Disc Disease is re-directed to the Pension Act for consideration. The evidence submitted with the new claim does not support a Departmental Review so the new claim will be adjudicated as a "first decision". If favourable, the effective date will be established in accordance with subsection 39(1) of the Pension Act.

A CAF member applied for disability pension for Internal Derangement Left Knee under the Pension Act claimed to be related to Regular Force service. The member received an unfavourable decision as the service relationship was not established. Subsequent to the coming into force of the CFMVRCA, the member applies for Osteoarthritis Left Knee claimed to Regular Force service. The effects of Internal Derangement Left Knee and Osteoarthritis Left Knee are inseparable (for assessment purposes), and as such are the same disability for the purposes of section 56. In accordance with subsection 56(1) of the CFMVRCA, the left knee disability has been the subject of a decision under the Pension Act and therefore not eligible for a decision under the CFMVRCA. The new claim for Osteoarthritis Left Knee is re-directed to the Pension Act for consideration. The evidence submitted with the new claim does not support a Departmental Review so the new claim will be adjudicated as a "first decision". If favourable, the effective date will be established in accordance with subsection 39(1) of the Pension Act.

Conversion of Disability Pension

A monthly disability pension that is being paid under the Pension Act cannot be converted into a disability award paid under the CFMVRCA.

Fractional entitlement

In accordance with section 42 of the CFMVRCA and subsection 3.1(1) of the Pension Act, in cases where fractional entitlement was awarded under the Pension Act for a condition, an application cannot be made under the CFMVRCA for an increase in the entitlement of that condition.

Change or Expansion of Diagnosis

If an application for a condition is adjudicated under one act, any subsequent application submitted due to a change or expansion of diagnosis of that condition must be adjudicated under the same act.

http://www.veterans.gc.ca/eng/about-us/policy/document/887

Dual Entitlement - Clients Holding Entitlement Decisions Under Both the Pension Act and the CFMVRCA (Consequential)

If a condition is ruled as consequential to a primary condition related to WWII, Korean War service, Royal Canadian Mounted Police service, or other service eligible under the Pension Act, the claim will be adjudicated under the Pension Act.

If a condition is ruled as consequential to a primary condition related to Regular Force or Special Duty Service, the claim will be adjudicated under the CFMVRCA, even if the primary condition was ruled under the Pension Act, unless sections 42 or 56 of the CFMVRCA apply (see policy Dual Entitlement - Disability Awards/Disability Pensions).

http://www.veterans.gc.ca/eng/about-us/policy/document/1533#anchor42583

What if my application was submitted prior to April 01, 2006? Could I still qualify for a disability pension for a condition related to that application?

Typically, CF members and Veterans are covered under the Canadian Forces Members and Veterans Re-establishment and Compensation Act and are entitled to a Disability Award.

However, anyone who submitted an application prior to April 1, 2006 may still qualify for a Disability Pension for any condition(s) related to that application.

http://www.veterans.gc.ca/eng/services/after-injury/disability-benefits/disability-pension