The government continues to effectively and illegally deduct pain and suffering payments from their LTD income.
It was hoped that Ottawa’s decision to not appeal ended a five-year court battle for Dennis Manuge, the lead plaintiff, and the initial 4,500 to 6,000 members who are all equally represented alongside Manuge in the class-action lawsuit. This hopefully also ends a nine-year battle for a number of these individuals who have been fighting a practice long before the court action against deductions that previous DND ombudsman André Marin condemned in 2003 and his successor Yves Côté labelled “profoundly” and “fundamentally unfair.”
Such strong words were used for good reason. Pain and suffering payments are indeed substantially different from lost income. The two have long been separated in workers’ compensation programs and insurance plans, including plans affecting the federal public servants who nevertheless ensured that pain and suffering payments were deducted from disabled Canadian Forces veterans’ long-term disability [LTD] income since as far back as 1976.
The courts are also adamant that pain and suffering payments are categorically different and the two cannot be mixed.
The LTD income for disabled CF members pays 75 per cent of a CF member’s release salary until age 65 if the member is unable to be suitably employed. This 75 per cent LTD income limit is a top-up which understandably deducts all other pension and disability income but also illegally deducted the pain and suffering payments.
By illegally confusing pain and suffering payments with income, the 75 per cent limit is easily exceeded for “the most seriously disabled CF members” noted Justice Robert Barnes in his May 1 ruling. The result is that the LTD policy is no longer obligated to pay anything. The “practical consequence” is to “extinguish the LTD coverage promised to [CF members]…with particularly harsh effect on the most seriously disabled CF members.”
The greater the disability, the greater the pain and suffering payment. As such, it has been the most disabled who, with the LTD extinguished, have watched while other less disabled members continue to collect their disability income cheques. The more seriously-disabled CF veterans are what are known as “zero-sum” clients. They are totally disabled and are put on the books but with zero dollars owing to them by the Canadian Forces LTD income plan.
On June 20, the LTD income cheques were deposited in many disabled veterans’ bank accounts for the first time without deducting pain and suffering payments. Meanwhile zero-sum clients looked helplessly on as once again they received nothing from the Canadian Forces LTD income plan. In effect, they therefore receive nothing from MacKay’s promise that the illegal deductions of pain and suffering payments “will not be deducted on any future cheques.”
The devilish detail in this announcement is that the most disabled had stopped receiving cheques perhaps last month, last year, or 10 years ago due to the illegal practice of including pain and suffering payments in the LTD income 75 per cent calculation. The “practical consequence” for the most seriously disabled is that they continue to suffer the illegal practice. There is no indication on the government’s part to start giving them a July, August, or any cheque for that matter. These highly-marginalized and vulnerable disabled CF veterans are now pawns in federal government negotiations.
These negotiations quickly stalled after the minister’s most recent announcement. They have since been restarted thankfully. However, zero-sum disabled veterans must wait yet again to see if government will stop the illegal practice which has a “particularly harsh effect” upon them and their families.
MacKay followed up his mid-June announcement with these words: “Our government’s strong action on this file is another example of our support for our men and women in uniform and our commitment to continue to meet the needs of those who need these benefits.”
Are disabled CF members, their families, and now Canadians to look at such words as empty platitudes which they have heard far too often when it comes to injured military and their families? The reality is that MacKay and the Prime Minister can instruct that initiatives be taken immediately to restart the LTD income benefits for these zero-sum veterans. Why is this not happening? Is there an administrative laziness at work here or perhaps a compassion paralysis so common in the federal bureaucracy?
Whatever the reasons, the delays, and complex processes are once again placed ahead of real people enduring needless suffering for far too long. All the zero-sum clients are disabled because of their unconditional commitment in military service to Canadians and to the Canadian government. It would be a pleasant and dignified change if Canada’s commitment to them was returned in kind, sooner rather than later.
Sean Bruyea is a columnist, graduate student in a masters of public ethics, and a former CF intelligence officer. He is also affected by the Federal Court decision.
The Hill Times