Mr. Anthony Saez (Executive Director and Chief Pensions Advocate, Bureau of Pensions Advocates, Department of Veterans Affairs):
Good afternoon, and good morning to you there.
First of all, thank you for inviting me to do this by video conference. It's a technology that we're using more and more, and it makes us more efficient and certainly more cost effective.
By way of opening, I'd like to say that the Bureau of Pensions Advocates was formed in 1971, following the tabling in Parliament of the Woods committee report. This committee recommended the formation of an independent body of lawyers, also called advocates, who would work on behalf of clients to ensure that no stone would be left unturned in the consideration of applications for disability benefits.
The bureau's mandate is to offer free legal advice, consultations and representation on cases brought before the Veterans' Review and Appeal Board. This service is for individuals who are not satisfied with a decision made by the department regarding their disability benefits claim.
The Woods committee was clear in its understanding of the role of BPA advocates, stating:
||The role of the advocate is unique in that his responsibility is to assist the applicant for pension, and the only duty he owes to his employer (the Crown) is to do his utmost to assist this applicant. An applicant for pension has the right to expect from the advocate, without charge, the same service as an applicant would demand of his solicitor in civil legislation.
Therefore, although administratively the bureau reports to the deputy minister of Veterans Affairs Canada, by legislation it has a solicitor/client relationship with clients. A BPA lawyer works for the client and takes instruction from the client and no one other than the client.
The bureau is headed up by an executive director and chief pensions advocate, who is supported by two directors, the director of legal operations and the director of strategic planning and management support. The four district directors, who manage the 14 BPA offices across Canada, report to the director of legal operations, as do the pensions advocates with the appeal unit in Charlottetown. The BPA has about 100 employees, 30 of whom are lawyers.
Clients may choose to be represented by a veterans organization, such as the Royal Canadian Legion, or by a private lawyer, or they may represent themselves. The reality, however, is that over 95% of all cases presented before VRAB, and probably closer to 99%, are handled by the Bureau of Pensions Advocates.
There are five possible steps open to clients in the disability redress process.
First, they may be “counselled out”. This is where the advocate, who normally has vast experience in the medical-legal field, considers the merits of the case and advises the client against proceeding, keeping in mind that the client may decide to proceed nevertheless with advocate representation, regardless of the advice received.
Second, if the case was turned down by the department at first application due to information that was missing and easily obtained after the fact, this information may be gathered and the case may be returned to the departmental adjudicators for a departmental review, which is handled quickly and often results in a positive outcome for the client.
Third, where the advocate and the client feel there is merit in proceeding to a review hearing before the Veterans Review and Appeal Board, client and advocate will work together to obtain the necessary information to substantiate the claim and prepare the case. This hearing is an opportunity for the client to appear in person before the board members, with transportation and accommodation paid for by VAC regardless of the place of residence of the client. The review hearing is the client's opportunity to give oral testimony in person, provide additional evidence in support of the claim, and have witnesses attend as necessary, with the additional benefit of legal representation.
Fourth, sometime after the review hearing, the client will receive the decision of the board. If the decision is unfavourable or partially unfavourable, there may be an opportunity to proceed to an appeal hearing before VRAB, which would be held before a different panel of board members. The appeal decision is final and binding.
Finally, in circumstances where new and compelling evidence comes to light after the appeal hearing, or where there may have been an error of fact or law, there is a limited option open to the client, with approval from VRAB, to make application for reconsideration.
In terms of workload, BPA completes about 6,000 claims a year, and counsels out about 4,500 claims, for a total workload of about 10,000 files a year.
At VRAB review, BPA is successful about 52% of the time, and at VRAB appeal, about 39% of the time. Understanding that the bureau represents almost everyone who is dissatisfied with their initial decision, this indicates that very few applicants are turned down, either at first application or following redress. It is of note as well that Canada is the only country in the world that allows for an independent review of disability decisions by lawyers, and for free representation by lawyers before an administrative tribunal.
Here are some additional interesting facts about BPA’s workload. New cases arrive every day, while other cases are completed on a day-to-day basis as well in the bureau. We have a rolling inventory of cases flowing in and out at the same time. An advocate has about 300-350 cases on the desk at any given time, some arriving, some awaiting new evidence, some being worked up for hearing, and some being presented at a hearing. Advocates are expected to complete about 195 cases per year.
There are three hallmarks to the bureau’s approach to service. First is personalized service. Clients who phone generally reach an employee; drop-in clients are welcome; and the advocate-client relationship is nurtured through conversation—either over the phone or in person—throughout the redress process.
Second is the advocates without borders business model. Some years ago, it became clear that the BPA clients served from offices with the largest backlog—those situated close to key Canadian Armed Forces bases—were waiting far longer to have their cases dealt with than those served by bureau offices in other locations with a lower volume of work. Over a period of several years, BPA has standardized its work processes across the country, allowing for the movement of client cases from busy sites to sites with a lesser workload, in order to ensure an equitable distribution of work nationally, leading to fair and equitable client service.
Third is flexible advocacy. Prior to the borderless model I just spoke of, review lawyers and their legal assistants in decentralized locations across Canada worked on review cases, while appeal lawyer/assistant teams in Charlottetown worked exclusively on appeals. Now, more and more often, BPA employees are becoming experienced at working up cases at either level of redress—review or appeal—and can be deployed to where there is most need. This nimble workforce allows for more timely service.
After each hearing, clients are asked to complete an anonymous questionnaire and return it in a self-addressed envelope to headquarters for recording purposes. The rate of return for the questionnaires is statistically valid. The questionnaire covers all aspects of the appeal process, including staff courtesy, the suitability of communications and the quality of representation.
I would now like to talk about some of the results for 2015-2016.
Ninety-eight per cent of clients were satisfied or very satisfied with the courtesy of bureau employees; 94% were satisfied or very satisfied with the quality of advice provided by their advocate; and overall, 93% of respondents were satisfied or very satisfied with the service they received from the Bureau of Pensions Advocates.
Thank you for the opportunity to address you today. I am ready to take your questions.
Mr. Anthony Saez:
The medical service records come from DND. That can take a little while, but it doesn't take as long as it used to.
The real delay is in obtaining medical reports. It may be because of the growing complexity of cases. In the past, the vast majority of cases were musculoskeletal. You had a broken bone, or you had a torn muscle. You could see it. You could touch it. More and more often now, we are dealing with psychiatric conditions, which are not evident unless you really examine the patient. That has led to what you might want to call “specialist report creep”.
Ten years ago, the report of a family doctor was all you needed. Then, it had to be maybe a psychologist, because they have a little more experience in the field. Then, as conditions were identified and became more complicated, a psychologist wasn't good enough; you needed a medical report from a psychiatrist.
That is probably where the system is slowed down the most for the veteran, from our perspective, because he or she needs a civilian doctor. If they are still in the forces, of course, their DND doctor doesn't provide that kind of service. They have to go out into the civilian world, try to find that report, and then get it back to us for redress purposes. We know the Canadian medical system has its challenges, and that is seen, certainly, in this process.
Mr. Anthony Saez:
I can tell you anecdotally, from what we have noticed over the last while, that the system, certainly at first application, seems to have become more generous.
I can give you a couple of concrete examples, one that is more immediate and one that has taken a little more time.
I will use the issue of sexual harassment. Years ago, when someone was harassed in the Canadian Armed Forces, whether it was a male or female member, the powers that be sort of rolled it off as “Well, these are a bunch of guys. That's what happens.” With time, and the sensitivities growing around that issue, both the department and the board have moved along with the tide, with society, to essentially say that it is unacceptable and won't be tolerated.
The other thing that has changed on that issue is that, in the past, they may have agreed that there was sexual harassment there and that it was not acceptable, but it wasn't in the line of duty. It wasn't as part of your job. Therefore, you don't qualify. That, again, has moved to the veteran's benefit, where they recognize now that if it happens while you are on duty, the employer is responsible. Therefore, it happened as a result of duty.
I am probably running out of time on this answer.
Mr. Anthony Saez:
I am going to first of all thank you for the opportunity.
I would like to say that I've been at this job for about 10 years, and in those 10 years I've noticed two things.
I've noticed, as I've probably mentioned, that the conditions that are being presented to us are shifting as the clientele has shifted. In the past, we had a majority of World War II and Korean veterans. They were veterans for whom the war was a calling. They put down their picks and their shovels, they went off to war, and after the war, they went back to their picks and shovels and were grateful for whatever services the government would offer.
Many of today's veterans no doubt see it as a calling, but it's also a career for them. They are much more aware of their rights and are much more willing to pursue those rights. That's changed the nature of the clientele we deal with.
Again, psychiatric conditions, although still not at the top of the list, are gaining momentum, and not necessarily because there are more of them. I think it's because the science behind it has brought it more to the fore and it's being recognized more and more as a condition.
Again, thank you for your time. I appreciate it.