Author Topic: Military, Veterans Affairs won’t pay for Air Force officer’s prosthetic leg  (Read 3139 times)

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Offline PMedMoe

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The CAF couldn't meet the government's direction to deploy X % of female members to the force in Mali.

Does a story like this paint the CAF like a good employer and make women want to join?  Doubt it.

If we want to debate counting bullets and beans we should take a look at the money we waste every March.

As stated by Cloud Cover, the CF did cover her costs while she was still in.  Now we're talking about VAC but yes, the optics don't look good either way.
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Offline dapaterson

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Wow I’m amazed she did all the legal work herself and self represented.

I have seen nothing stating that she is self represented and did all the legal work herself.
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Offline Eye In The Sky

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EITS, military members are required to have a FCP regardless of deployment status.  See here (note the word "mandatory").

You don't "execute" a FCP but you must have one.

DAOD 5004-1, see para 5.

I think we're debating different aspects, actually.  I was more looking at the 'was she on duty' at the time.  Going only off the story info, I thought "it seems so".

However, BlackAdder's post with the links to the court decision and the grievance add some clarity.  As a mbr who has dealt with a grievance that went to the Military Grievances External Review Committee, I trust that their analysis was very thorough and unbiased.  From the grievance committee F & R (Findings and Recommendations):

Quote
The Committee had to determine whether the grievor was on duty at the time of her motor vehicle accident and whether her injuries were attributable to military service.

The Committee acknowledged that the grievor and her service spouse were serving in high readiness units and had chosen to use their FCPs not only to prepare for unexpected duty absences, but also to address normal daily childcare requirements. The Committee noted that it was open to the grievor to design and use her FCP in the manner best fitting her needs, and that this was her personal choice. The Committee explained that the grievor's claim to have been on duty relied not on how she designed and used her FCP but on whether she was ordered by military authorities to use it on the day of her accident. In this regard the Committee noted that there was no evidence to suggest that she was ever ordered to activate her FCP.

Thanks, BlackAdder, for finding and providing the links.

« Last Edit: December 13, 2018, 17:45:29 by Eye In The Sky »
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Offline Rifleman62

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Trend - Equitas lawsuit appeal denied by Supreme Court, the PM's comment in Edm, etc.

It would be interesting to see what would happen if a Cabinet Minister or an MP had an similar accident on their way to "work".
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Offline PMedMoe

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I think we're debating different aspects, actually.  I was more looking at the 'was she on duty' at the time.  Going only off the story info, I thought "it seems so".

Actually, we were debating the same thing.  She wasn't on duty. She may have been in a high readiness unit that was next to go, but she wasn't deployed nor had she been recalled from leave.  She was taking her child to daycare. The article was, of course, biased in her favour.

However, BlackAdder's post with the links to the court decision and the grievance add some clarity.  As a mbr who has dealt with a grievance that went to the Military Grievances External Review Committee, I trust that their analysis was very thorough and unbiased.  From the grievance committee F & R (Findings and Recommendations):

Thanks, BlackAdder, for finding and proving the links.

Yes, thanks. 
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Offline Jarnhamar

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So she actually wasn't on duty at the time of the accident as the article states?

Quote
The Canadian Armed Forces says Capt. Kimberly Fawcett was on duty during an accident in which her son died and she lost her leg, but as Mercedes Stephenson reports, the government is refusing to pay for Fawcett's prosthetic limb
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Offline Eye In The Sky

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So she actually wasn't on duty at the time of the accident as the article states?

Not according to Finding and Recommendations detailed in the Case Summary.  Have a read of the Grievance Committee's F & R / Case Summary.  It has some key details.

https://army.ca/forums/index.php/topic,129529.msg1556304.html#msg1556304

Additionally, although the article says:

Quote
That position was directly disputed in a review by one of Canada’s top generals at the time, Major General Walter Semianiw who was the Chief of Military Personnel. In a review Major General Semianiw determining Fawcett was on duty and following military orders at the time of her accident, concluding “The execution of the Family Care Plan, is in fact, a military order.”

The Grievance case summary states:

Quote
The Initial Authority, the Chief of Military Personnel, denied the grievance, finding that the grievor's request to report to work late on that day was a routine circumstance which did not require invoking her FCP.

 :dunno:


« Last Edit: December 13, 2018, 10:42:17 by Eye In The Sky »
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Offline Jarnhamar

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Thanks.

I wonder if the CAF/VAC ultimately feels like it was worth the 10 year battle and subsequent PR that comes with the story.
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Offline Remius

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Thanks.

I wonder if the CAF/VAC ultimately feels like it was worth the 10 year battle and subsequent PR that comes with the story.

If it avoids a precedent then I suppose so.
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Offline PMedMoe

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So she actually wasn't on duty at the time of the accident as the article states?

And as escort to bereaved families, she also didn't serve "during the height of the Afghanistan war in Kandahar" either.

If it avoids a precedent then I suppose so.

This is my thought too.  I can see it now, someone will get in an accident going to get Kiwi polish and state they were on duty because it's a military order to have their boots polished.

I see now there's an update to the article.  Looks like she'll get some help.

Quote
Late on Dec. 12, officials from the Canadian Armed Forces told Global News they are willing to immediately sit down with Captain Kimberly Fawcett and examine any outstanding costs for her prosthetic. Defence Minister Harjit Sajjan also says he is looking into the file and the military adds Fawcett is receiving support through multiple military programs. Also, since Global News posted Fawcett’s story, a veteran’s charity has stepped up and is offering to pay some of her bills to alleviate the financial strain.
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Offline Jarnhamar

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If it avoids a precedent then I suppose so.
Plus it might help people forget about the whole VAC paying for that police murderers medical/rehab bills.


Quote from: PMedMoe


This is my thought too.  I can see it now, someone will get in an accident going to get Kiwi polish and state they were on duty because it's a military order to have their boots polished.


What if they were on their way to work and deviated from the quickest route to work in order to get some kiwi polish and got in an accident?

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

Quote
I see now there's an update to the article.  Looks like she'll get some help.


I expected as much (and glad to hear). 
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Offline PMedMoe

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What if they were on their way to work and deviated from the quickest route to work in order to get some kiwi polish and got in an accident?

I think that unless you've be recalled from leave (or something similar), you're not on duty when you're driving to work.

"A good traveler has no fixed plans, and is not intent on arriving".
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Offline Eye In The Sky

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I think that unless you've be recalled from leave (or something similar), you're not on duty when you're driving to work.

Recalled while on standby/duty, AFAIK, also falls under the "on duty" side from the moment you get the call.  I'd have to find the ref, but this was a topic once at the unit because there are "Ready" air and ground crews at home after Sqn Duty normal duty hours, 24/7/365.
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Offline PMedMoe

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Recalled while on standby/duty, AFAIK, also falls under the "on duty" side from the moment you get the call. 

And that would fall into the "something similar".   ;)

But just driving to work on a regular work day?  Not "on duty".

For reference, an almost verbatim article from June:  She lost her child and her leg in a horrific car crash. Now, an air force officer is fighting her military bosses

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.
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Offline Rifleman62

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Global News is the news and current affairs division of the Global Television Network in Canada, itself owned by Corus Entertainment which was formed in 1999 as a spin-off from Shaw Communications.
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Offline Tcm621

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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.

Offline garb811

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...

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?

Offline PMedMoe

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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.

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^
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Offline Eye In The Sky

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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...
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But does it afford me the ability to go on lavish vacations and buy anything I want?  Also no.

Online JesseWZ

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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.
« Last Edit: December 13, 2018, 14:12:33 by JesseWZ »
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Offline 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:

Quote
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.
« Last Edit: December 13, 2018, 14:30:36 by PMedMoe »
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Offline Blackadder1916

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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.
Quote
[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.
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Offline Jarnhamar

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Thanks Blackadder you're right.
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Offline 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).

Offline Cloud Cover

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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.
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