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Veterans Well-being Act (S.C. 2005, c. 21)

Act current to 2021-11-17 and last amended on 2020-07-27. Previous Versions

PART 3Critical Injury, Pain and Suffering, Death and Detention (continued)

Pain and Suffering Compensation (continued)

Marginal note:Increase in extent of disability

  •  (1) If a member or a veteran who has been paid a disability award or pain and suffering compensation or to whom pain and suffering compensation is payable establishes that their extent of disability, for which a disability award or pain and suffering compensation was paid or is payable, has subsequently increased, the Minister may, on application, pay pain and suffering compensation to the member or veteran.

  • Marginal note:Compensable fraction — aggravated by service

    (2) In the case of a non-service related injury or disease that was aggravated by service, pain and suffering compensation may be paid under subsection (1) only in respect of that fraction of the disability that has been determined in accordance with subsection 45(2).

  • Marginal note:Compensable fraction — consequential injury or disease

    (3) In the case of an injury or a disease that is a consequence of another injury or disease, pain and suffering compensation may be paid under subsection (1) only in respect of that fraction of the disability that has been determined in accordance with subsection 46(2).

Marginal note:How extent of disability assessed

  •  (1) The assessment of the extent of a disability shall be based on the instructions and a table of disabilities to be made by the Minister for the guidance of persons making those assessments.

  • Marginal note:Statutory Instruments Act

    (2) The instructions and table of disabilities are exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act.

Marginal note:Amount of pain and suffering compensation

  •  (1) Subject to section 56.4, the monthly amount of pain and suffering compensation that is payable under section 45, 47 or 48 to a member or a veteran shall be determined by the formula

    A – B

    where

    A
    is the amount set out in column 3 of Schedule 3 that corresponds to the extent of disability, as set out in column 2 of that Schedule, that is the total of the member’s or veteran’s extent of disability for which a disability award has been paid or for which pain and suffering compensation is payable or has been paid as a lump sum; and
    B
    is the amount set out in column 3 of Schedule 3 that corresponds to the extent of disability, as set out in column 2 of that Schedule, that is the total of the member’s or veteran’s extent of disability for which a disability award has been paid or for which pain and suffering compensation has been paid as a lump sum.
  • Marginal note:Fraction

    (2) For the purpose of determining the extent of disability in subsection (1), if a disability award or pain and suffering compensation was paid or may be paid only in respect of a fraction of a disability, then only that fraction of the disability shall be taken into account.

Marginal note:When pain and suffering compensation payable

  •  (1) Pain and suffering compensation begins to be payable under section 45, 47 or 48 on the later of

    • (a) the first day of the month in which the application for pain and suffering compensation is made, and

    • (b) the day that is three years before the first day of the month in which the pain and suffering compensation is granted.

  • Marginal note:Additional payment

    (2) Despite subsection (1), if the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Board is of the opinion that, were it not for delays in securing service or other records or other administrative difficulties beyond the control of the member or veteran, pain and suffering compensation would have been granted earlier, the Minister or the Board, as the case may be, may grant an additional payment to the member or veteran in an amount not exceeding an amount equal to the pain and suffering compensation payable to the member or veteran for two years.

  • Marginal note:Additional payment deemed to be compensation

    (3) The additional payment is deemed to be compensation for the purposes of sections 88 to 90 and 92 and subsection 93(1).

Marginal note:Duration of pain and suffering compensation

 Subject to section 52.1, pain and suffering compensation ceases to be payable under section 45, 47 or 48 on the earlier of

  • (a) the first day of the month after the month in which the member or veteran makes an election under section 53, and

  • (b) the first day of the month after the month in which the member or veteran dies.

Marginal note:Suspension or cancellation

 The Minister may, in the prescribed circumstances, suspend the payment of pain and suffering compensation that is payable under section 45, 47 or 48 or cancel the pain and suffering compensation.

Marginal note:Election — lump sum

  •  (1) A member or a veteran to whom pain and suffering compensation is payable under section 45, 47 or 48 may elect, in the prescribed manner, to receive the pain and suffering compensation as a lump sum in lieu of monthly payments.

  • Marginal note:Amount of lump sum

    (2) The amount of the pain and suffering compensation that is payable as a lump sum shall be determined by the formula

    A – B

    where

    A
    is the amount set out in column 4 of Schedule 3 that corresponds to the extent of disability, as set out in column 2 of that Schedule, that is the total of the member’s or veteran’s extent of disability for which pain and suffering compensation is payable; and
    B
    is the sum of the amounts obtained — in respect of each pain and suffering compensation that began to be payable to the member or veteran, other than pain and suffering compensation for which the member or veteran previously made an election under this section — by multiplying the amount determined in accordance with paragraph (a) by the number determined in accordance with paragraph (b):
    • (a) the amount set out in column 3 of Schedule 3 that corresponds to the member’s or veteran’s extent of disability, as set out in column 2 of that Schedule, for which that pain and suffering compensation was paid;

    • (b) the number of months for which the member or veteran was paid that pain and suffering compensation.

  • Marginal note:Election irrevocable

    (3) An election made under subsection (1) is irrevocable and applies in respect of the member’s or veteran’s total extent of disability for which pain and suffering compensation is payable when the election is made.

Marginal note:Death of member or veteran

 If a member or a veteran to whom pain and suffering compensation is payable under section 45, 47 or 48 dies, the Minister may, on application, pay as a lump sum, in accordance with section 56.1, to a survivor or a person who was, at the time of the member’s or veteran’s death, a dependent child, any pain and suffering compensation that would have been payable to the member or veteran under section 53 if they had made the election under that section on the day before their death.

Marginal note:Death of member or veteran — application pending

  •  (1) If a member or a veteran who made an application for pain and suffering compensation under section 45, 47 or 48 dies before the Minister makes a determination in respect of the application, the Minister may pay as a lump sum, in accordance with section 56.1, to a survivor or a person who was, at the time of the member’s or veteran’s death, a dependent child, pain and suffering compensation in an amount equal to the amount, set out in column 4 of Schedule 3, that corresponds to the monthly amount of pain and suffering compensation, set out in column 3 of that Schedule, that would have been payable to the member or veteran under section 45, 47 or 48, had they lived, as a result of the application.

  • Marginal note:Rights of survivor and dependent child

    (2) The survivor or dependent child has, in respect of the application referred to in subsection (1), all of the rights that the member or veteran would have had had they lived.

Marginal note:Death of member or veteran — no application made

 If a member or a veteran dies before they make an application for pain and suffering compensation under section 45, 47 or 48, the Minister may, on application, pay as a lump sum, in accordance with section 56.1, to a survivor or a person who was, at the time of the member’s or veteran’s death, a dependent child, pain and suffering compensation in an amount equal to the amount, set out in column 4 of Schedule 3, that corresponds to the monthly amount of pain and suffering compensation, set out in column 3 of that Schedule, that would have been payable to the member or veteran under section 45, 47 or 48 if the member or veteran had lived and had made the application.

Marginal note:Division of pain and suffering compensation

 If pain and suffering compensation is payable to a survivor or a person who was, at the time of a member’s or veteran’s death, a dependent child, the following rules apply:

  • (a) if there is a survivor but no person who was a dependent child, the survivor is entitled to 100% of the pain and suffering compensation;

  • (b) if there is a survivor and one or more persons who were dependent children,

    • (i) the survivor is entitled to 50% of the pain and suffering compensation, and

    • (ii) the persons who were dependent children are entitled, as a class, to 50% of the pain and suffering compensation, divided equally among them;

  • (c) if there are one or more persons who were dependent children but no survivor, each of those children is entitled to the amount obtained by dividing the pain and suffering compensation by the number of those children.

Marginal note:Deemed extent of disability

 For the purposes of sections 55 and 56, if a member or a veteran dies as a result of an injury or a disease for which a disability award has been paid or for which pain and suffering compensation has been paid, is payable or would be payable and their death occurs more than 30 days after the day on which the injury occurred or the disease was contracted or the injury or disease was aggravated, the member or veteran is deemed to have been assessed, on the day before their death, as having an extent of disability of 100% in respect of that injury or disease.

Marginal note:Reduction

 If an amount is paid or payable to a person from a prescribed source in respect of a death or disability for which pain and suffering compensation is payable, the Minister may reduce the pain and suffering compensation that is payable to the person by an amount determined in accordance with the regulations.

Marginal note:Maximum extent of disability

  •  (1) If a member’s or a veteran’s extent of disability, in respect of the aggregate of all of the member’s or veteran’s disability assessments and deemed disability assessments under this Act — in relation to the disability award or pain and suffering compensation — and under the Pension Act, exceeds 100%, no pain and suffering compensation is to be paid for any percentage points exceeding 100%.

  • Marginal note:Compensable fraction

    (2) For the purpose of determining the extent of disability, if a disability award or pain and suffering compensation was paid or may be paid only in respect of a fraction of a disability, or if only a fraction of a disability is pensionable under the Pension Act, then only that fraction of the disability shall be taken into account.

Marginal note:No pain and suffering compensation — decision under Pension Act

  •  (1) No pain and suffering compensation shall be granted in respect of an injury or a disease, or the aggravation of an injury or a disease, if the injury or disease, or the aggravation, has been the subject of an application for a pension under the Pension Act and the Minister, or the Commission as defined in section 79 of that Act, has rendered a decision in respect of the application.

  • Marginal note:No pain and suffering compensation — inseparable for purpose of assessment

    (2) No pain and suffering compensation shall be granted in respect of an injury or a disease, or the aggravation of an injury or a disease, if the Minister determines that the injury or disease, or the aggravation, is inseparable — for the purpose of assessing the extent of disability — from an injury or a disease, or the aggravation of an injury or a disease, for which a pension has been granted under the Pension Act.

Additional Pain and Suffering Compensation

Marginal note:Eligibility

  •  (1) The Minister may, on application, pay additional pain and suffering compensation to a veteran who suffers from one or more disabilities that are creating a permanent and severe impairment and a barrier to re-establishment in civilian life if the veteran, in respect of each of those disabilities, has been granted a disability award or pain and suffering compensation or a disability pension under the Pension Act.

  • Marginal note:Non-application of subsection (1)

    (2) Subsection (1) does not apply in respect of a disability resulting from an injury or disease, or the aggravation of an injury or disease, that resulted from

    • (a) service in the Canadian Forces on or before April 1, 1947; or

    • (b) service in the Korean War, as defined in subsection 3(1) of the Pension Act.

  • Marginal note:Ineligibility — exceptional incapacity allowance

    (3) A veteran who is receiving an exceptional incapacity allowance under the Pension Act is not eligible for additional pain and suffering compensation.

  • Marginal note:Assessment of extent of impairment

    (4) The Minister shall assess the extent of the veteran’s permanent and severe impairment.

  • Marginal note:Amount of additional pain and suffering compensation

    (5) The monthly amount of additional pain and suffering compensation that is payable is the amount set out in column 2 of Schedule 4 that corresponds to the extent of the veteran’s permanent and severe impairment as set out in column 1 of that Schedule.

  • Marginal note:When additional pain and suffering compensation payable

    (6) Subject to subsection (8), additional pain and suffering compensation begins to be payable on the later of

    • (a) the first day of the month in which the application for additional pain and suffering compensation is made,

    • (b) the day that is one year before the first day of the month in which the veteran is determined to be entitled to the additional pain and suffering compensation, and

    • (c) the first day of the month in which the veteran is released from the Canadian Forces or, if the veteran is released on the last day of the month, the first day of the month after the month in which the veteran is released.

  • Marginal note:Reassessment of extent of impairment

    (7) If there has been a change in circumstances relating to a veteran to whom additional pain and suffering compensation is payable, the Minister may, on application, reassess the extent of the veteran’s permanent and severe impairment. The Minister may, on his or her own initiative, reassess the extent of the veteran’s permanent and severe impairment.

  • Marginal note:When additional pain and suffering compensation payable — reassessment

    (8) If, as a result of the reassessment, a determination is made that the extent of the veteran’s permanent and severe impairment has changed, the resulting additional pain and suffering compensation begins to be payable,

    • (a) if the reassessment is conducted on application and the veteran’s extent of impairment has worsened, on the later of

      • (i) the first day of the month in which the application for a reassessment is made, and

      • (ii) the day that is one year before the first day of the month in which the determination is made;

    • (b) if the reassessment is conducted on application and the veteran’s extent of impairment has lessened, on the first day of the month after the month in which the determination is made; or

    • (c) if the reassessment is conducted on the Minister’s own initiative, on the first day of the month after the month in which the determination is made.

  • Marginal note:Duration of additional pain and suffering compensation

    (9) Subject to section 56.8, additional pain and suffering compensation ceases to be payable on the earlier of

    • (a) the first day of the month after the month in which the Minister determines that the veteran is no longer entitled to the additional pain and suffering compensation, and

    • (b) the first day of the month after the month in which the veteran dies.

 
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