Date: 20010621
Docket: T-2119-99
Neutral Citation: 2001 FCT 678
BETWEEN:
JOHN G. MACDONALD
Applicant
AND:
THE ATTORNEY GENERAL OF CANADA
Respondent
[1] This is an application for judicial review of a decision of the Veterans Review and Appeal Board dated August 25, 1999, wherein the Board increased the applicant's assessment of disability effective January 20, 1998.
[2] The facts leading up to this application are as follows. On March 3, 1980, Mr. MacDonald enrolled in the Canadian Forces Regular Force as a vehicle technician. In 1984 he sustained a significant injury to his right wrist while pulling on a heavy wrench. Between February 18, 1986 and April 27, 1991 he underwent five surgical procedures on the wrist.
[3] In May of 1991 the applicant started to experience symptoms in his left wrist. An x-ray was taken of the left wrist on July 18, 1991 and no abnormalities or misalignments were disclosed. However, less than two months later, on September 3, 1991, a Canadian Forces medical officer diagnosed Mr. MacDonald with scapho lunate disassociation of the left wrist and recommended a limited carpal fusion.
[4] On March 29, 1993 Dr. O.T. Portner authored a report with respect to the condition of the applicant's right wrist and the surgeries which had been performed on it. Dr. Portner was of the opinion that the problems with Mr. MacDonald's right wrist were directly related to his work as a vehicle technician. With respect to the applicant's left wrist, Dr. Portner stated that "He [the applicant] related onset of symptoms to the fact he had to use his left wrist more and more for the mobility required to reach things in his trade that he could not reach with his right fused wrist. This, again, is almost certainly a valid conclusion. . . In summary, this patient's activities as a mechanic have indeed caused both his right and his left wrist disabilities."
[5] Mr. MacDonald was released from the forces on July 30, 1993 under the Forces Reduction Program. On April 12, 1994, the Canadian Pension Commission Entitlement Board awarded the applicant a disability pension under subsection 21(2) of the Pension Act, S.C. 1995, c. P-6, for three fifths of his left wrist injury, effective the day following his release, namely, July 31, 1993. The Board denied the applicant any entitlement for his right wrist. However, by subsequent decision dated March 10, 1995, the Board awarded Mr. MacDonald an additional disability pension benefit under subsection 21(2) for three-fifths of his right wrist injury.
[6] The applicant appealed this decision to the Veteran Review and Appeal Board which, by decision dated March 15, 1996, increased Mr. MacDonald's disability pension benefit to four-fifths for his right wrist. There was no change to his pension for the left wrist injury. The effective date of entitlement remained July 31, 1993, the day following the applicant's release from the Forces.
[7] On December 11, 1998, the applicant appeared for a hearing before an Assessment Review Board as he was dissatisfied with the assessments of his pension entitlement for both wrists. By decision of the same date, the Review Board increased the assessment of disability for the applicant's left wrist from 20% to 30%. The increase had retroactive effect to January 30, 1998. On April 12, 1999 the Review Board amended the retroactive effect of its decision to January 20, 1998. On August 25, 1999 the Board increased the assessment of the right wrist to 25% and held the increase retroactive to January 20, 1998.
[8] The applicant now seeks to have that decision set aside on the grounds that the Veteran Review and Appeal Board erred in law in making its decision. Mr. MacDonald submits that the assessment increases awarded by the Board on December 11, 1998, and August 25, 1999, should have been given retroactive effect to the date of his initial pension entitlement, namely July 31, 1993.
[9] I am setting aside the Board's decisions for the following reasons.
[10] Section B.2.b. of Article 35(1) of the Pension Policy Manual sets out the effective date of any changes to an assessment. The effective date to be given to the adjustment depends upon the nature of the reassessment; that is, whether it is a new pension entitlement, request for reassessment, mandatory reassessment, optional reassessment; or, a departmental review. The section reads as follows:
2. Effective Dates Following Changes in Assessment
a. New Pension Entitlement
(i) In the case of new pension entitlement, the effective date of the assessment shall be:
- the effective date stipulated in the original decision granting pension entitlement.
(ii) In the case of a combined entitlement/assessment decision with an interim assessment followed by a subsequent pension medical examination, i.e. mandatory reassessment, the effective date of a change in assessment shall be:
- the effective date stipulated in the original decision granting combined entitlement/assessment
b. Request for Reassessment
In the case of a request for reassessment by a pensioner, based on the deterioration of a pensioned condition, the effective date of a change in assessment shall be:
(i) the date the Department receives a request for a pension medical examination from the pensioner (or the date the Department receives a complaint from the pensioner that the pensioned condition is deteriorating); or
(ii) the date on which medical information, e.g. the date of a medical report submitted at the time of the complaint, establishes a change in assessment,
whichever is the earliest date.
c. Mandatory Reassessment
In the case of a mandatory reassessment, other than the case mentioned in section 2(a)(ii), the effective date of a change in assessment shall be:
(i) the date of the pension medical examination; or
(ii) the date on which medical information, e.g. the date of a medical report submitted at the time of the pension medical examination, establishes a change in assessment,
whichever is the earliest date.
d. Optional Reassessment
In the case of an optional medical reassessment, the effective date of a change in assessment shall be:
(i) the date of the pension medical examination; or
(ii) the date on which medical information, e.g. the date of a medical report submitted at the time of the pension medical examination, establishes a change in assessment,
whichever is the earliest date.
e. Departmental Reviews of Assessment Decisions
(i) In the case of a combined entitlement/assessment decision with an interim assessment followed by a subsequent pension medical examination, the effective date of a change in assessment shall be:
- the effective date stipulated in the original decision granting combined entitlement/assessment.
(ii) In the case of a new entitlement decision followed some time later by an assessment decision, the effective date of a change in assessment shall be:
- the effective date stipulated in the original decision granting pension entitlement.
(iii) In the case of a review of an assessment decision, the effective date of a change in assessment shall be:
- the effective date stipulated on the previous assessment decision being reviewed.
(iv) In the case of a review of a previous assessment decision which concluded that the disability was properly assessed (no change), the effective date of a change in assessment shall be:
- the date the Department received the initial request from the pensioner (or the date the Department received the initial complaint from the pensioner that the pensioned condition had deteriorated); or
- the date on which medical information, e.g. the date of a medical report submitted at the time of the complaint or at the time of the pension medical examination, established a change in assessment; or
- the date of the of the pension medical examination,
whichever is the earliest date, as the case may be.
f. Review Panel (VRAB)
In the case of a decision of a Review Panel before the Veterans Review and Appeal Board, the effective date of a change in assessment shall be:
(i) the effective date stipulated in the Review Panel decision changing the assessment.
g. Appeal Panel (VRAB)
In the case of a decision of an Appeal Panel before the Veterans Review and Appeal Board, the effective date of a change in assessment shall be:
(i) the effective date stipulated in the Appeal Panel decision changing the assessment.
h. Request for Reconsideration
In the case where the Veterans Review and Appeal Board has referred to an application to the Department for reconsideration, the effective date of a change in assessment shall be:
- See section e - Departmental Reviews of Assessment Decisions
[11] In its decision of December 11, 1998, the Board stated that "[t]he effective date shall be 30 January 1998, date of request". This is a clear indication that the Board relied upon section B.2.b. of Article 35(1) of the Pension Policy Manual which deals with a request for reassessment by the pensioner based on the deterioration of a medical condition. However, the deterioration of the applicant's pensioned condition was never in issue here. The Board had before it uncontroverted medical evidence that there had been no change to Mr. MacDonald's disability from the date of his release on July 30, 1993. This error was carried forward into the Board's subsequent decision of August 25, 1999.
[12] In fact, Mr. MacDonald's situation does not appear to be covered by the Policy Manual at all. His pursuit of a reassessment has always been based on his view that the earlier assessments of his disability were simply incorrect. The Policy Manual however, is silent on the issue of reassessment where a pensioner objects to the assessment of a disability and, as here, adduces evidence in support of such a claim.
[13] Given the lacuna in the policy, I agree with the applicant that subsection 5(3) of the Pension Act is applicable. That provision reads as follows:
| 5(3) In making a decision under this Act, the Minister shall (a) draw from all the circumstances of the case and all the evidence presented to the Minister every reasonable inference in favour of the applicant or the pensioner; (b) accept any uncontradicted evidence presented to the Minister by the applicant or pensioner that the Minister considers to be credible in the circumstances; and (c) resolve in favour of the applicant or pensioner any doubt, in the weighing of evidence, as to whether the applicant or pensioner has established a case. |
5(3) Lorsqu'il prend une décision, le ministre: a) tire des circonstances portées à sa connaissance et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible au demandeur ou au pensionné; b) accepte tout élément de preuve non contredit que celui-ci présente et qui lui semble vraisemblable en l'occurrence; c) tranche en sa faveur toute incertitude quant au bien-fondé de la demande. |
|
[14] For these reasons, the application is granted and the decision of the Board dated August 25, 1999, is set aside. The Board's decision of December 11, 1998, contains the same error of law and for that reason must also be set aside. The matter is hereby referred back to a newly constituted Board for rehearing and redetermination in a manner which is not inconsistent with these reasons.
JUDGE
OTTAWA, Ontario
June 21, 2001