Application of certain provisions of Part II
71 Application of certain provisions of Part II
Divisions 2A, 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.
For the purposes of the application of Divisions 2A, 3, 6 and 7 of Part II as provided in subsection (1):
a reference in those divisions to a pension shall be read as a reference to a pension payable in accordance with this Part;
a reference in those divisions to the death of a veteran that was war‑caused shall be read as a reference to the death of a member of the Forces or a member of a Peacekeeping Force that was defence‑caused;
a reference in those divisions to a war‑caused injury shall be read as a reference to a defence‑caused injury;
a reference in those divisions to a war‑caused disease shall be read as a reference to a defence‑caused disease; and
a reference in those divisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force.
In the application of Division 3 of Part II in accordance with subsections (1) and (2) of this section, section 19 shall be read as if the following subsection were substituted for subsection (7) of that section:
“(7) Where:
the Commission, upon considering a claim for a pension in respect of the incapacity of a member of the Forces or a member of a Peacekeeping Force from injury or disease determines, or is satisfied, that the member suffered the injury or contracted the disease as claimed and that the injury is a defence‑caused injury or the disease is a defence‑caused disease, as the case may be; and
the Commission is also satisfied that a determination under this Act is in force determining that the member has suffered an injury or contracted a disease (not being the injury or disease referred to in paragraph (a)) and that:
that injury is a defence‑caused injury, or is a war‑caused injury for the purposes of Part II; or
that disease is a defence‑caused disease, or is a war‑caused disease for the purposes of Part II;
as the case may be, whether or not a pension under Part IV or Part II, as the case requires, has been granted in respect of that injury or disease;
the Commission shall not, in a case where the claimant is in receipt of a pension under Part IV or Part II in respect of incapacity resulting from the injury or disease referred to in paragraph (b), grant a separate and additional pension to the claimant in respect of incapacity resulting from the injury or disease referred to in paragraph (a), but the Commission shall, having regard to any incapacity resulting from the injury or disease referred to in paragraph (a) and any incapacity resulting from the injury or disease referred to in paragraph (b) and treating any such war‑caused injury as defence‑caused injury and any such war‑caused disease as defence‑caused disease:
if the claimant is not in receipt of a pension under Part IV or Part II—determine whether the claimant is entitled to be granted a pension under Part IV and, if it determines that the claimant is entitled to be granted a pension, assess the rate of the pension to be granted to the claimant; or
if the claimant is in receipt of a pension under Part IV or Part II—re‑assess the rate of that pension.”.
Notwithstanding anything in Divisions 2A, 3, 6 and 7 of Part II in their application in accordance with this section, where:
a member of the Forces, or a member of a Peacekeeping Force, has, or has had, both defence service and peacekeeping service; and
the Commission has determined that the death or incapacity of the member had or has reference to the member’s defence service and also to the member’s peacekeeping service;
the Commission shall not grant a pension under this Part in respect of the death or incapacity in so far as it had or has reference to the member’s defence service and a separate pension under this Part in respect of the death or incapacity of the member in so far as it had or has reference to the member’s peacekeeping service, but shall:
in the case of the death of the member—assess the rate of any pension granted under this Part in respect of the death as if the member’s peacekeeping service formed part of the member’s defence service; or
in the case of the incapacity of the member—assess the degree of incapacity of the member and the rate of pension (if any) to be granted in respect of the incapacity of the member as if the member’s peacekeeping service formed part of the member’s defence service.
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