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Military, Veterans Affairs won’t pay for Air Force officer’s prosthetic leg

TCM621

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PMedMoe said:
Idle curiosity made me look this up.  The National Post is owned by CanWest Global Communications Corp, who also owns Global News.  So, not terribly shocking.

The National Post is owned by Postmedia Network which owns the publications listed in the link below:
https://en.wikipedia.org/wiki/Postmedia_Network

Global was sold to Shaw circa 2010.
 

garb811

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Jarnhamar said:
...

I'm fine with being wrong but a $30'000 leg hardly seems worth while battle for the CAF, monitairily, resource wise or morally.

...
Well, as mentioned previously, there is a danger of precedent here.

If she was deemed to be on duty while driving her kid across town, what about if she had been driving to Ottawa for the same purpose? What about a single parent who has to fly to another city to get their child to a grandparent? 

If executing your FCP is now a military duty, then by extension it is the same as any other on duty travel.  Are you now entitled to mileage? Plane tickets? Meals and accommodation?

Or is the reality simply that the FCP is an administrative tool we use to ensure our members actually give the problem some thought in order to have a plan in place with the actual execution of that plan being a parental responsibility, just like any other parent?
 

PMedMoe

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Tcm621 said:
The National Post is owned by Postmedia Network which owns the publications listed in the link below:
https://en.wikipedia.org/wiki/Postmedia_Network

Global was sold to Shaw circa 2010.

I stand corrected.  I still wouldn't be surprised if there were some collaborating between companies.

garb811 said:
Or is the reality simply that the FCP is an administrative tool we use to ensure our members actually give the problem some thought in order to have a plan in place with the actual execution of that plan being a parental responsibility, just like any other parent?

^This^
 

Eye In The Sky

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garb811 said:
If executing your FCP is now a military duty, then by extension it is the same as any other on duty travel.  Are you now entitled to mileage? Plane tickets? Meals and accommodation?

In some cases, it could and would be.  And you'd be entitled to some expenses...
 

JesseWZ

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garb811 said:
Or is the reality simply that the FCP is an administrative tool order we use to ensure our members actually give the problem some thought in order to have a plan in place with the actual execution of that plan being a parental responsibility, just like any other parent?

I fixed that for you.

While taking the argument to it's extremes with the Kiwi polish, the line between duty and not duty seems to be more and more blurry.
On one hand, units are *supposed* to publish regular working hours. On the other, what happens if a member makes the decision to work late in order to catch up on work?
Are they still "on duty"? What happens if they're asked to work late by their immediate supervisor? Does this amendment to the regular working hours put them on duty? What happens to personnel where there is a cultural expectation to monitor their blackberry and respond to emails and phone calls outside of the units regularly published working hours? Are they on duty while typing those emails?

I have a personal stake in this decision (as I feel all serving members do) as I work a considerable amount of time outside of regular published business hours depending on the speed flow and direction of an investigation. There is a cultural expectation crystalized in our SOPs that while I'm on duty (or on call to avoid blurring the meaning of the word further) that I be sober, reachable by Blackberry and able to get to work quickly to assume an investigation. These "on call periods" take up roughly one out of every two weeks.

Once you throw in the wrinkle that regular force members and certain classes of reservist are subject to the Code of Service Discipline 24 and 7 and all applicable orders and directions even when on leave - it implies they at the least have a "duty" to follow those orders and directions. When actively following those orders and directions, are they not on duty? I feel like the argument is similar to the CAF having their cake and eating it too. They can control all aspects of the members life even when not "on duty" - but when those shitty life things happen, they'll disavow responsibility to the member.
 

PMedMoe

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FCP notwithstanding, I still don't think someone taking their child to daycare is on duty unless they were recalled into their unit for deployment (or for some other military requirement) and dropping their child off was for the purpose of being able to perform their military duty.

Another thing that arose from this incident (besides the on/off duty argument) was whether or not her injuries were attributable to military service.  From the court decision of Nov 2017:

The CDS acknowledged that there are two concepts within this definition, namely: “directly connected with military service” and “arose out of military service.” In both instances he concluded that the meaning cannot be stretched to capture the concept of parental responsibilities equating military service.

Edit to add:  In one of the court transcripts, it was said that her husband normally dropped their child off but he had been recalled to his unit for deployment training.  If he had been dropping the child off and the same accident occurred to him, then in that scenario he would have been considered on duty because he was subject to a unit recall.  In her case, she was not.
 

Blackadder1916

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Jarnhamar said:
I'm fine with being wrong but a $30'000 leg hardly seems worth while battle for the CAF, monitairily, resource wise or morally.

If you actually read the Federal Court decisions and the grievance summary you may note that there is no mention anywhere in any of those documents of "prosthetic leg costs" or "Spectrum of Care" or anything else about being reimbursed for expenses related to her accident.  So, the 10 year battle has nothing to do about what is, in essence, a relatively minor cost.  "Relatively minor" in the grand scale of things from a military medical viewpoint (obviously a major chunk of change for Capt Fawcett) but also not a surprizing amount considering the research and technology that has gone into prosthetics in recent years (one of the follow-on benefits from war, but one that the beneficiaries probably wish could have been avoided).  The sole thing that Capt Fawcett sought was to have the injuries resulting from her accident be declared as having occurred on duty and attributable to military service.  It really does not make any difference (or should not) to have such a ruling as long as she remained in the CF.  Her medical costs, subject to the limitations I mentioned in a previous post, would (or should) have been covered.  The importance of having the injuries attributable to military service comes into play only when making a claim to VAC.  While there is the obvious financial benefit of a Disability Award, once she retires from the CF she will continue to have costs associated with maintaining and/or replacing her prosthesis.  While some of those costs can be covered by provincial health insurance and PSHCP (which uses the exact same wording a the CF Spectrum of Care to define the benefit, though they have that nasty 80% clause), it would be beneficial to have the government being responsible for those costs as one ages (and the costs get significantly greater).

From the 2012 Federal Court decision.
[6]              The applicant applied to the Department of Veterans Affairs for disability benefits in June 2006, and that application was denied on October 6, 2006.  The applicant received a copy of the Summary Investigation into her accident which was accompanied by a cover letter from Commander CFJSG, Colonel C.C. Thurrott (Commander Thurrott).  The Summary Investigation found that the applicant was on duty at the time of the accident but Commander Thurrott disagreed with that finding.  The applicant states that she chose not to pursue this matter further at the time, but rather to focus on her rehabilitation.

[7]              After learning from a colleague, and from her Pension Advocate, that significant weight is placed on the Summary Investigation in determining duty status, the applicant decided to file a grievance regarding the Summary Investigation.  The applicant submitted her grievance on June 2, 2009.
 

SupersonicMax

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Typical case of “doing things right” (process driven) vs “doing the right thing” (effect/morality driven).

In its typical fashion, the Government does things right and only incidently the right thing (when both happen to be the same).
 

Cloud Cover

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garb811 said:
If executing your FCP is now a military duty, then by extension it is the same as any other on duty travel.  Are you now entitled to mileage? Plane tickets? Meals and accommodation?

Or is the reality simply that the FCP is an administrative tool we use to ensure our members actually give the problem some thought in order to have a plan in place with the actual execution of that plan being a parental responsibility, just like any other parent?

I have to say it again . She had a communication with her superior. There was a meeting if the minds. Not everything has to be an order in a case like this. She lost her blood and soul for the mob - I can think of two others on these forums who gave all (not their life but their children, and that IS everything)  so this country can be served, somehow.
She lost her leg.She  rucked up and held it together. You better believe that for GOFO and PS equivalent, who have the opportunity to be covered for something like this, they would be. The Federal court judge even wrote “narrowly construed” for CF members vice “broad and liberal” for PS Pension Act.  I’d trade in a company strength worth of Ottawa’s generals pensions  just to make this persons life one minute better.
 

kratz

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CBC.ca

She lost her court challenge today.

Capt. Kimberly Fawcett has been embroiled in a prolonged battle with the Canadian Armed Forces, which denied her compensation and reimbursement for a prosthetic limb. The CAF determined she was not on duty at the time of the accident and that her injuries were not attributable to her military service.

A series of grievances, internal reviews and legal actions led up to this week's Federal Court of Appeal ruling that sided with the CAF and the Attorney General of Canada.

More at the link above.
 

Blackadder1916

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The FCA decision.

https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/400337/index.do
 

Navy_Pete

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Glad that the MND and other Liberal MPs that pledged to sit down with her and sort it out kept the court case running.

Yes, this is a complicated case, but aside from the direct costs of the 10 year legal saga and all the previous staff work, do the big giant heads not think the PR form this will be really bad for their push to get women in uniform?  They'll happily throw millions for commercials for that though.  Way to be pennywise, pound foolish.  :not-again: Way to turn a potentially good news story into a giant kick in the crotch.  All over what, a limited VAC settlement, and ongoing physio and similar support?

Even if there is no legal requirement, they could have settled it out of court, called it a 'special circumstance' and sorted it out for her.  Every admin case is decided on a 'case by case' basis, so this seems like such a massive waste of time and money to avoid a non-issue. Brutal.
 

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Navy_Pete said:
Glad that the MND and other Liberal MPs that pledged to sit down with her and sort it out kept the court case running.

Yes, this is a complicated case, but aside from the direct costs of the 10 year legal saga and all the previous staff work, do the big giant heads not think the PR form this will be really bad for their push to get women in uniform?  They'll happily throw millions for commercials for that though.  Way to be pennywise, pound foolish.  :not-again: Way to turn a potentially good news story into a giant kick in the crotch.  All over what, a limited VAC settlement, and ongoing physio and similar support?

Even if there is no legal requirement, they could have settled it out of court, called it a 'special circumstance' and sorted it out for her.  Every admin case is decided on a 'case by case' basis, so this seems like such a massive waste of time and money to avoid a non-issue. Brutal.

I wonder if the government took the stand they did to prevent "slippery slope" precedent.

FWIW I don't think her case had a leg to stand on, it is pretty clear to me that was a separation of on/off duty.  We aren't special because we have to go to or from work, like every other Canadian.

 

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The CAF likely spent more fighting it than the prosthetic would have cost.  While I agree she wasn’t on duty and therefore isn’t necessarily entitled to it.......on top of the legal fees the government accrued, what would the monetary cost of the terrible PR be?  Likely pretty high.

Pretty sad
 

Navy_Pete

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Precedents are for court cases; every admin issue is looked at in a case-by-case basis. There isn't a big CAF database of admin decisions you can reference when working on something, so aside from your personal experience from previous things you've worked on, you go with what happened and the set of policies and rules in place at the time. Also, this is an incredibly specific and unique circumstance, so odds of a reoccurence are pretty astronomical.

This has a bunch of direct staff and lawyer costs to DND, even more indirect costs, really bad PR, and the pension wouldn't even be a DND line item!  Don't need to be a bean counter to see the really poor cost-benefit here.
 

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'I am prepared to fight': After losing bid for compensation, air force captain takes on Bill Blair

Capt. Kimberly Fawcett lost a legal bid for disability benefits following accident that killed her infant son

Murray Brewster · CBC News · Posted: May 01, 2019 4:00 AM ET | Last Updated: 4 hours ago

Oyy7Yyt.jpg

Capt. Kimberly Fawcett, an air force officer, trains in Ottawa near Parliament Hill. She lost her son and a leg in a tragic roadside accident in 2006; now she's running for the federal Conservatives this fall. (Studio G. R. Martin Photography)

For Capt. Kimberly Fawcett, the personal is now political.

The soon-to-be former air force officer — who last week lost a court challenge of the military's refusal to pay disability benefits for a 2006 traffic accident that claimed the life of her infant son — is now confirmed as the nominated federal Conservative candidate in the Toronto-area riding of Scarborough Southwest.

She said she's jumping into the political fray to help protect other Canadian Forces members from going through what she did.

"I went to Bill Blair three years ago to ask for his help and he turned me away," Fawcett told CBC News. Blair, the Trudeau government's border security minister, represents Scarborough Southwest.

"If he is not prepared to fight for someone like me or anyone else in our riding, then I am prepared to fight him for the job."

Fawcett, who sheds her air force uniform in June, is at a personal and professional crossroads.

The Federal Court last week rejected her challenge of the military's refusal to pay her disability benefits for the accident that claimed the life of her nine-month-old son, Keiran, and left her an amputee.

For more than a decade, Fawcett has fought a pitched battle with the defence and veterans departments. The federal government claims the tragic accident on Highway 401, just outside of Kingston, Ont., did not occur while she was on duty — even though the trip was sanctioned by her commanding officer and part of an approved military-mandated family care plan.

Over a decade ago, Ottawa refused to cover the cost of her prosthetic limb. Fawcett still returned to duty after learning to walk again. She even deployed to Afghanistan for a second time in 2008.

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Federal Minister of Border Security and Organized Crime Reduction Bill Blair. (Chad Hipolito/Canadian Press)

She said she asked Blair to look into her case and to act as an information "conduit" with the federal government while the matter was before the chief of the defence staff.

She said she was subsequently ignored and then told nothing could be done because the matter was before the courts.

CBC News asked Blair for comment but the minister said he would not discuss the specifics of Fawcett's case.

"Out of respect for the privacy of my constituents, I do not comment on individual cases that are brought forward to me," he said. "As the Member of Parliament for Scarborough Southwest I always strive to make myself available to constituents to assist them with their concerns."

Fawcett said her desire to run is rooted more broadly in dissatisfaction with the Liberal government's treatment of veterans and military programs. Fawcett questions the fiscal sustainability of some of the Trudeau government's spending decisions and said she suspects those in uniform will be among the first to suffer in the event of budget cuts.

Her candidacy is a little ironic in light of the fact the Liberals rode to power in 2015 partly on the dissatisfaction of veterans who saw themselves being run over by the former Conservative government in its drive to balance the budget.

Fawcett acknowledged the political grievances of the past but said the Conservative Party has learned from them and is moving forward.

"It doesn't matter who, or what party, is in charge of veterans. I want to see that the department does right by veterans," she said.

Fawcett took her fight to Federal Court after her internal grievances were denied. Shortly after the accident, she was told that she qualified for disability benefits, but the decision was overturned and upheld all the way up to the chief of the defence staff.

"My grievance started because I asked for an explanation. And to do this day, I still do not have an explanation," she said.

"We hoped, at the end of the day, our chain of command was supportive. It was a difficult pill to swallow that they didn't and that [the decision] was very arbitrary."

It's that sort of inconsistent treatment that Fawcett said she wants to fight from inside the government.

She's currently weighing whether to fight the Federal Court decision all the way to the Supreme Court. She's also considering a further appeal of her denial of benefits to the federal Veterans Review and Appeal Board.

https://www.cbc.ca/news/politics/kimberly-fawcett-bill-blair-air-force-disability-compensation-1.5117176
 

TCM621

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ExRCDcpl said:
The CAF likely spent more fighting it than the prosthetic would have cost.  While I agree she wasn’t on duty and therefore isn’t necessarily entitled to it.......on top of the legal fees the government accrued, what would the monetary cost of the terrible PR be?  Likely pretty high.

Pretty sad

The government doesn't care about cost. I have seen way too many decisions where the more expensive route was taken because the book didn't say you could do it the cheaper way. They also can't bend to PR just because. I feel for the Capt and I would gladly donate to a go fund me for a new running blade but you have to draw the line somewhere and actually working is a good line.

DAOD 5044-1 actually states :

5.9 While an FCP is the responsibility of the member and is not approved by the unit, the member may seek the advice of unit authorities on the preparation of the FCP and the completion of the form, Family Care Plan Declaration. The form submitted by the member may be reviewed by unit authorities for completeness only.

It is pretty cut and dried. In addition, she isn't hobbling along on a peg leg, she has a prosthetic and wants VAC to pay for a running blade. The press on this seems to be ignoring that fact, either deliberately or otherwise.
 

Navy_Pete

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On the flip side, the CAF deployed her with a prosthetic, and requires all members to be physically fit. Does it not make sense if you are going to continue to employ someone for a decade, you would pay for something to let them participate in a common PT activity like running if they are able to?  :dunno:

And they do stuff for PR that costs far more time and money all the time, so why not pony up and tie it with their running news stories about supporting injured members and all the other things they've been selling over the last few years. This directly undermines all of that effort, so once again, the Big Giant Heads come across as words, not deeds (which would be a pretty funny April fools prank to set up as a upper level command slogan).
 

TCM621

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Navy_Pete said:
On the flip side, the CAF deployed her with a prosthetic, and requires all members to be physically fit. Does it not make sense if you are going to continue to employ someone for a decade, you would pay for something to let them participate in a common PT activity like running if they are able to?  :dunno:

And they do stuff for PR that costs far more time and money all the time, so why not pony up and tie it with their running news stories about supporting injured members and all the other things they've been selling over the last few years. This directly undermines all of that effort, so once again, the Big Giant Heads come across as words, not deeds (which would be a pretty funny April fools prank to set up as a upper level command slogan).

My understanding is DND did pay while she was in uniform. The issue is now with VAC who are not all that concerned with PR apparently.
 
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