Veteran Hemsworth’s story ‘all too familiar’

Stoffer: Veteran Hemsworth’s story ‘all too familiar’

ANDREA GUNN OTTAWA BUREAU

Published December 5, 2016 - 8:27pm



Jason Hemsworth used to enjoy paintball, martial arts and skydiving. That was about eight years ago, before a back injury left him in chronic pain, unable to work, keep up with his five- and seven-year-old boys, or even shovel the driveway or mow the lawn.

“I live in pain every day of my life, every moment,” he said. “If you touch my leg the wrong way I’ll cry out in pain.”

Today he’s considering legal action against the federal government to get the compensation he feels was unfairly withheld.

A bad fall near mess hall

Hemsworth, who is originally from Sackville but recently moved to B.C., has lumbar disc disease, two herniated discs in his back — injuries he says are the result of a slip on some ice in January 2009.

At the time, he was living in Saint Jean, Que., training for the Canadian Armed Forces. He had hurt his shoulder on duty and was living in a trailer with other injured members, as the main barracks was overflowing with new recruits heading to Afghanistan.

On the way to mess hall for dinner one day, Hemsworth slipped and fell on the bottom step of a staircase that was caked in ice. It hurt, he said, but, figuring he’d just pulled a muscle, he went to the meal hall anyway. When he went to get up he was unable to move and had to use a wheelchair to return to his trailer.

The next day, he had an X-ray and was sent for an MRI. The results: “A herniated disk in L3 L4 and L4 L5 both herniated to the left, pinching the sciatic nerve.”

Hemsworth had had some minor sciatic back pain prior to his fall, but had determined it was due to piriformis syndrome (spasms in a muscle in the buttocks) and it was corrected with massage therapy sessions.

Deny, deny, deny

Since then, Hemsworth said he has tried “every type of physiotherapy imaginable” and had two back surgeries to lessen the pain. He is prescribed and is covered for medical marijuana for pain management, which he said was a fight in itself. But Hemsworth said his biggest struggle has been with Veterans Affairs Canada and the Veterans Review and Appeal Board, a quasi-judicial arm’s-length tribunal that reviews dissatisfied veterans’ claim denials.

Hemsworth said he has dealt with obstacle after obstacle trying to get his case settled, and has been denied his disability claim three times.

The first time he was told that because his fall happened on the way to a meal during training, it meant he wasn’t on duty at the time and couldn’t be covered. Hemsworth took issue with this decision.

“If I wasn’t on duty, why was I in uniform, why would I have to march, why would I have to go to a mandated meal?” he said. “The military says I was on duty, so why does VAC think I’m off duty?”

He filed for a review and his first VRAB hearing took place in February 2011, almost two years after his injury. The board denied his claim, citing his previous back pain as well as their previous decision, and maintained that exiting a trailer is not attributable to military service factors.

Unprepared to accept the board’s decision, Hemsworth applied for an appeal of the review. After some delays which he claims were caused mostly by bureaucratic incompetence, his file went to the board again in spring of 2014.

The second decision upheld that, by definition, Hemsworth was off-duty at the time of the accident, but also cited the results of the MRI he had directly following his injury that indicated at the time he already had a degenerative presence in his lumbar spine.

A “mess of bureaucracies”

His injury was so severe he couldn’t continue to serve. He was released and receives long-term disability because his injury happened during training.

“I signed up as a combat engineer because I wanted to go to Afghanistan for my country, I wanted to be on the front lines, and I ended up getting busted up slipping on some ice in basic training.”

Hemsworth gave up on his case for several years; his experience dealing with the government has left him with severe anxiety. But he still feels he is owed compensation and is currently considering legal avenues. A VRAB appeal is as far as a veteran can take a claim, unless there is an error in fact or law in the decision, or significant new evidence. The next option is Federal Court.

Former NDP MP and veterans affairs critic Peter Stoffer said Hemsworth’s story is all too familiar. Now working in a volunteer capacity assisting two legal firms on similar veterans’ cases, Stoffer has seen more than his share of bureaucratic stonewalling.

“It’s so typical of what happens when you get into that mess of bureaucracies of Veterans Affairs. They’re there to say no, they’re not there to find a way to help.”

He said even if a veteran takes an appeal board decision to Federal Court, the court does not have the power to overturn a decision but can only recommend another review.

He said the only other option would be to appeal directly to the Veterans Affairs minister, who can grant compensation on compassionate grounds.

In an email, VRAB director of communications Alexandra Shaw said board members make decisions in accordance with the legislation and Federal Court jurisprudence, including determining if there is evidence to establish a disability arose from or was directly connected with service.

“Every decision is based on the specific facts and evidence in the case. In coming to a decision . . . They always bear in mind the requirement to resolve any doubt in the weighing of evidence in favour of the veteran.”

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