Federal Court Decisions

 

 

 

Date: 20060825

Docket: T-388-05

Citation: 2006 FC 1029

Montréal, Quebec, August 25, 2006

PRESENT:     The Honourable Justice Johanne Gauthier

 

 

BETWEEN:

 

CHERYLYNN HUNT

 

Applicant

and

 

 

ATTORNEY GENERAL OF CANADA

 

Respondent

 

 

 

REASONS FOR ORDER AND ORDER

 

 

[1]               Ms. Cherylynn Hunt, a captain in the Canadian Armed Forces (CF), seeks judicial review of two decisions[1] of the Veterans Review and Appeal Board of Canada (Board) which found that the three distinct physical conditions for which she sought a pension were not pensionable to the extent that she considered they should be.

 

I.          The Decisions

[2]               In its decision No. 100000851403 (the ’403 decision), the Board confirmed the decision of the Assessment Review Panel (ARP) which had increased the Minister’s combined assessment of the applicant’s lumbar disc disease and osteoarthritis lumbar spine from 5% to 10%, effective May 4, 2004 (the date of the new medical evidence upon which the ARP based this increase). The applicant had contended that the ARP failed to appreciate that the May 4, 2004 medical evidence was not the first evidence of her constant pain; it was just a clarification of the nature of her pain. She had also submitted to the Board that the basis of her appeal to the ARP had been misunderstood because she never argued that her lower back condition had worsened. In fact, she was simply saying that her condition should have been assessed at 10% from the date of entitlement in 2002.

 

[3]               The Board indicates that it was not convinced that the ARP was correct in raising the assessment level by 5% because the applicant was pregnant at the time of the hearing “which situation would almost certainly increase the pain from her lumbar disc disease particularly during the latter period of her pregnancy.” In its brief decision, the Board also notes that the applicant’s complaint relates primarily to pain. Considering the criteria mentioned in Table 1 of Article 19.04 of the Veterans Affairs Canada Table of Disability, it found that:

While her “symptoms” could have been placed in the 20% to 30% range at the time of the Review hearing, “medication would be no higher than the 10% level because, at that time, she was taking “only Tylenol because of her pregnancy.” There are no adverse findings in the categories of posture, straight leg raising, reflexes, wasting, toe and heel walking or back brace, and “range of motion” is close to full, with a 20 degree loss of extension as the only adverse measurement. With those findings, the Board would have kept the assessment level at 5% with the suggestion that a new Pension Medical Examination be conducted at some time after the Appellant’s condition was stabilized, post-pregnancy.

 

(my emphasis)

 

The Board concludes that the ARP inferred from the report of May 4, 2004, that there was a worsening in her condition and, based on that finding, it was correct in setting the retroactivity date as May 4, 2004. On that basis, the decision was affirmed.

 

[4]               In its decision No. 100000866640 (the ’640 decision), the Board dealt with two conditions: chondromalacia patella in the right and left knees, and dermatitis on the right and left hands.

 

[5]               With respect to the knee condition, it confirmed the ARP’s decision that, based on the medical evidence on file, the applicant’s condition could not be related to her military service, particularly because there was no indication of service-related trauma to her knees.

 

[6]               The Board considered the applicant’s latest letter, which referred to a factual summary indicating that her condition was first diagnosed in 1984 and resulted from the exigencies of her service, particularly during basic training, recruit training and the period when she was a first-year cadet. The applicant also submitted to the Board that further deterioration of her knee condition arose from repetitive micro-trauma in the first four or five years of service (phase II and III of her training).

 

 

[7]               The Board noted that the applicant presented no new medical evidence that would relate the claimed condition to cumulative joint trauma sufficient to be causative and it affirmed the ARP’s decision.

 

[8]               With respect to the dermatitis, the ARP had assessed that one-fifth of her condition was service-related. This was an increase from the decision of the Minister, who had found the condition not pensionable.

 

[9]               It is not disputed that this condition is precipitated or aggravated by stress. But, contrary to the position taken by the applicant, the ARP found that the major problem (or stress factor) appeared to be her difficulty becoming pregnant (fertility issues). It expressly states that it gave the applicant the benefit of the doubt when awarding her one-fifth because, in its view, the numerous moves and other service-related issues listed by the applicant in exhibit ER-H5 had a minimal impact on her condition. The ARP expressly refers to Dr. Christensen’s report of March 8, 2004. This report refers not only to the frequent moves of the applicant, but also to “other stressful events over the last four to six years.”

 

[10]           The Board expressed some doubt as to whether the events described by the applicant in her statement (ER-H5) were indeed related to her military service, but it found that the ARP was entitled to give her the benefit of the slightest reasonable doubt and had done so. It thus affirmed the decision.

 

 

 

[11]           The Court notes that the Board has agreed to reassess the applicant’s pension request with respect to her knee condition, but that this reassessment has been stayed until a decision is rendered on this application.

 

[12]           For the reasons given hereinafter, the Court finds that the ’403 decision must be set aside and that the ’640 decision contains no reviewable error.

 

II.         Issues

A.        The ’403 Decision

[13]           The applicant submits that the Board made a reviewable error by considering that her pregnancy had an undue impact on the ARP assessment of her lower back condition. As a result, the Board never properly considered the most favourable interpretation of the less recent medical evidence in her file. It also failed to explain why she was not to be given the benefit of the doubt in that respect.

 

[14]           The respondent indicates that the Board is presumed to have reviewed all the arguments and the evidence presented to it and that its decision is based on a reasonable interpretation of the evidence on file. He says that given the standard of review applicable to this finding, the Court should not intervene.

 

 

 

B.         The ’640 Decision

[15]           The applicant submits that the Board failed to consider recorded events during her military service which would have resulted in major trauma to her right and left knees. Because of this, the Board never gave her the benefit of the doubt to which she is entitled.

 

[16]           According to the respondent, there was contrary evidence on file which the Board had the duty to assess. Particularly, the applicable Medical Guidelines contradicted the theory that the condition could result or be aggravated by repetitive micro-trauma. Also, there was no evidence that whatever blow was recorded in the applicant’s file resulted in the kind of trauma that could medically account for her condition.

 

[17]           In respect of her dermatitis, basically, the applicant contests the weight given by the ARP and the Board to the various stress factors in her life at the relevant time. She agrees that the only medical evidence on file is that of Dr. Ringwald (page 151) and Dr. Christensen (page 90). She claims that the Board’s decision was adversely tainted by its view that the various moves imposed on her and her husband during the relevant period were not service-related.

 

[18]           The respondent submits that, in light of the absence of medical or psychological evidence assessing the relative importance of the stress factors in the applicant’s life, the ARP and the Board were entitled to weigh those factors as they saw fit. It is evident that they gave the applicant the benefit of the doubt and that, regardless of other comments made by the Board, in the end, the Board agreed that travelling for military service was service-related and it awarded a pension on that basis.

III.       Analysis

[19]           The relevant statutory provisions of the Pension Act, R.S.C. 1985, c. P-6, are reproduced in Annex I.

 

[20]           Because they are particularly relevant to the issues raised, the following provisions of the Veterans Review and Appeal Board Act, 1995, c. 18 (the Act), are reproduced:

 

[21]           In Frye v. Canada (Attorney General), 2005 FCA 264 at para. 11 and 12, the Federal Court of Appeal endorsed the pragmatic and functional analysis of Justice John M. Evans in McTague v. Canada (Attorney General), [2000] 1 F.C. 647. It found that a Board’s decision on whether an injury arose out of, or was directly connected with, military service for the purposes of paragraph 21(2)(a) of the Pension Act was reviewable on a standard of reasonableness simpliciter. Purely factual issues which include, according to McTague, above, “the Board’s weighting or interpretation of often conflicting or inconclusive medical evidence and determining from it whether the claimant’s disability was in fact caused or aggravated by military service” are subject to the standard of patent unreasonableness. When the Board’s interpretation of legislation is in issue, its findings are to be reviewed on a standard of correctness.

 

[22]           Obviously, the Board is bound to abide by the duty imposed upon it by the Act, particularly sections 3 and 39. As noted by Justice Andrew MacKay in Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (QL) at para. 24, those sections do not, however, relieve an applicant of the burden of proving that his or her condition arose out of or in connection with military service. The applicant must still establish on a balance of probabilities, with the evidence considered in the best light possible, that his or her disability is service-related. This civil standard must be read in concert with the entitling provision of paragraph 21(2)(a) of the Pension Act.

 

[23]           The appropriate circumstances for applying section 39 were described by the Federal Court of Appeal in Elliott v. Canada (Attorney General), 2003 FCA 298 at para. 46, where Justice Marc Nadon said that “if the direction to draw every reasonable inference is to have meaning, it must be applied in cases where an inference would not be drawn on a balance of probabilities. A reasonable inference is therefore one that is not necessarily probable but must nevertheless be more than a mere possibility.”

 

[24]           In another decision of Justice Nadon, in King v. Canada (Veterans Review and Appeal Board), 2001 FCT 535, the learned judge adopted the views of Justice Bud Cullen in MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (QL), where he said at para. 22:

[22]      It is settled law that a tribunal does not have to make an explicit written finding on each element which leads to its ultimate conclusion; indeed, there is a presumption that the tribunal has dealt with all of the documents which were placed before it: Henderson v. Canada (Attorney General) (1998), 144 F.T.R. 71 (T.D.). However, this is tempered, or qualified, by section 39 of the Veterans Review and Appeal Board Act, which requires that when new and credible evidence is presented during a reconsideration proceeding, the Board has a duty to consider and weigh the evidence, drawing every reasonable inference in the applicant’s favour. This does not mean that the Board must automatically accept whatever submission is made by a veteran; rather, the evidence must be accepted if it is credible and reasonable, and uncontradicted.

 

[25]           It is clear that the Board must accept the evidence submitted by an applicant unless it makes a determination with respect to the lack of credibility of that evidence or unless the evidence is contradicted by other evidence submitted.

 

[26]           Finally, as noted by Justice MacKay in Wood v. Canada (Attorney General), [2001] F.C.J. No. 52, when the Board does not accept the applicant’s evidence without any explanation, it commits an error that warrants setting aside the decision.

 

[27]           With those principles in mind, the Court will now review the Board’s decisions.

 

A.        The ’403 Decision

[28]           Having considered the additional written representations of the respondent with respect to the Table of Disabilities (Table 1 of Article 19.04) used at the hearing, the Court is satisfied that this document was considered and used by the Board even if it is not included in the certified record provided to the Court.

 

[29]           In its decision, the Board makes it clear that it felt that the symptoms and other elements used by the ARP to re-assess the back condition of the applicant were not representative of her “normal” or “stabilized” condition because of her pregnancy at the time of the hearing before the ARP.

 

[30]           The Court is satisfied that the Board misapprehended the basis of the ARP decision and itself based its decision, at least in part, on an irrelevant consideration – the condition of the applicant at the time of the hearing before the ARP. The Board’s belief that the worsened condition of the applicant was temporary clearly impacted on its conclusion. Because of it, the Board did not examine the real issue put forward by the applicant, that is whether or not the 10% assessment by the ARP should have been applied retroactively to February 7, 2002.

 

[31]           It is obvious that ARP was aware that the applicant was four months into her pregnancy when she appeared before it and that because of this, among other things, she was then only using Tylenol as opposed to the medication described in Dr. Ross report of May 4, 2004.

 

[32]           The ARP also knew from the report of Dr. Ross that the applicant had indicated to him that her pain increased during pregnancy[2], but the fact that the applicant’s pain was constant and that her range of motion was affected by her degree of pain which ranged from mild to severe was not discovered at the July hearing. It was described in Dr. Ross’ medical report which was issued when the applicant was six weeks only into her pregnancy. The applicant noted that at that stage her pregnancy was irrelevant. The Court agrees.

 

[33]           The evaluation of the ARP was clearly based on the condition described in the May 2004 report, for it only considered the medication described in this report. At that time, as mentioned, the ARP was well aware that the treatment and medication prescribed were interrupted because of the pregnancy.

 

[34]           It is also worth noting that the other medical reports on file (pages 254-255) which are not dealt with at all in the decision despite the fact that they were central to the argument presented by the applicant, are dated January 15, 2002 (Dr. Vadeboncoeur) and June 2003 (Dr. Kenny).

 

[35]           The applicant first became pregnant in June 2002[3]. She was thus very much pregnant (7 months) when Dr. Vadeboncoeur examined her. She was not pregnant in June 2003.

 

[36]           Despite this, the pain symptoms described in the June 2003 medical report (“pain varies ache → sharp pain”…) are very similar to those described in the Dr. Ross report of May 2004 (“level of pain increases with various activities and during pregnancy goes from mild to severe”) . On the other hand, Dr. Vadeboncoeur describes the pain symptoms in January 2003 simply as “lower back pain worst after lifting and gardening, better after stretching and yoga”.

 

[37]           The evaluation of the Board, based on the Table of Disabilities, indicates that if the pain symptoms described by the applicant were not “temporary”, they could have a real impact on the assessment of her pension.

 

[38]           Finally, there is no doubt that even if the Board does not have to deal in any detail with all the evidence and the arguments presented by an applicant, it must at least indicate on what basis it rejected the main ground of appeal put forth by an applicant. In this case, as I said, there is no reference whatsoever to the applicant’s lower back condition prior to May 4, 2004, even though the main ground of her appeal was that her condition on May 4, 2004 was not different than her condition in 2002.

 

[39]           The Court finds that the decision is patently unreasonable and must be set aside.

 

[40]           When this matter is reconsidered, the applicant should be given the opportunity to include in the statement of the case, various medical questionnaires which appear in her medical record but  were, for some reasons, only included in the statement of the case in respect of the ‘640 decision.

 

B.         The ’640 Decision

            (1)        Knee Condition

[41]           The applicant recognizes that the Board did not have any clear evidence of a causal link between her military service and the problems with her knees, but she argues that, as her condition was first diagnosed in 1984, the Board had before it evidence of incidents related to her military service that could well have caused her condition when one applies the appropriate favourable inference on the basis of section 39.

 

[42]           The Medical Guidelines of the Canadian Armed Forces with regard to chondromalacia patella (certified record at page 170) clearly indicate that there is no medical data supporting the fact that such a condition is more prevalent in service personnel than in the civilian population. They also indicate that there is no reason to believe that repeated minor trauma sustained during service plays any role in the development of this condition.

 

[43]           It is also admitted that, between 1986 and 2003, there are no reports of knee injuries in the applicant’s file and that the medical evidence produced by her describes her physical condition without determining its cause.

 

[44]           With respect to the theory that her chondromalacia patella was caused or aggravated by repeated micro-trauma during her training, the Board was clearly entitled to prefer the Medical Guidelines to the arguments submitted by the applicant.

 

[45]           Those guidelines are given legislative effect by section 35(2) of the Pension Act, and it is well established that it is perfectly appropriate for the Board to be influenced by them when reaching a decision. This issue was specifically discussed by Justice William P. McKeown in Gavin v. Canada (Attorney General), [1999] F.C.J. No. 676 (QL) at para. 10-11 of his decision.

 

[46]           This, however, does not settle the matter. The applicant placed particular emphasis on the fact that her medical record refers to damage to her right knee while practising fencing in February 1983 and also to her left knee when she took a fall in March 1984 (see pages 32, 33 and 35 of the respondent’s record). She says that these incidents could amount to “traumas” that could have caused her condition and justified an inference in her favour. On both those dates, the applicant was attending the Royal Military College.

 

[47]           The Court notes that the applicant was first diagnosed with chondromalacia patella to her knees in February 1984, that is one year after the fencing incident and one month before her recorded fall on the left knee. There is no other recorded incident involving her right knee that would indicate that the diagnostic made in February 1986 was caused by a trauma that occurred between 1984 and 1986. The entry for February 5, 1986 states that there is no history of trauma.

 

[48]           The February 1984 diagnosis is mentioned in the two recent medical reports written by Dr. Kenny and dated March 11 and 13, 2004 (at pages 103 and 89 of the respondent’s record). Dr. Kenny appears to believe that the knee condition of the applicant, as shown in the x-rays of 2003, is consistent with the condition identified in 1984. He does not indicate how this condition could have appeared. A further medical entry, dated June 2, 2003, and noted in the ARP decision, reviews the applicant’s history since 1982 and indicates that she sustained no specific injury to either knee.

 

[49]           In these circumstances, the Court is satisfied that the Board made no reviewable error when it concluded that it could not infer a causal or aggravational relationship between the appellant’s condition and her military service on the basis of the evidence presented. The applicant’s explanation based on the two entries made in her file in February 1983 and March 1984 is no more than a mere possibility. The applicant has simply not provided sufficient evidence to justify an inference in her favour in this case. As mentioned earlier, she will have the opportunity to provide additional evidence to the Board who has agreed to re-assess her claim.

 

(2)        Dermatitis

[50]           With respect to the dermatitis, it appears that there was contradictory medical evidence. Dr. Haber mentioned that the dermatitis is idiopathic (i.e. the cause is unknown), while Dr. Christensen stated that the applicant had an underlying tendency towards this disease which “might” have been aggravated by her moves and other stressful events in the past 4 to 6 years. He does not specifically describe them but we know from the file that these include problems with her ovaries and her spouse’s sperm, many unsuccessful attempts at becoming pregnant since 1991, her spouse’s problem with a harassment claim, etc. The medical evidence on file does not indicate in what proportion these various stressful events could have influenced or aggravated the applicant’s condition.

 

[51]           There was also some contradictory evidence as to when the eczema condition appeared. In her submissions to the panel, the applicant placed the beginning of her condition in 1999, whereas in the medical report of Dr. Ringwald, it is noted that it would have begun around May/June 2001. The respondent links the appearance of eczema with the beginning of the applicant’s attempt at in vitro fertilization.

 

[52]           The Court finds that the comments of the Board as to whether or not the moves to various military bases relate to military service are not material given that it ultimately accepted the finding of the ARP in that respect.

 

[53]           The Court is satisfied that it was not unreasonable, let alone patently unreasonable, for the Board to find that military service was not responsible for more than one-fifth of her condition.

ORDER

 

THIS COURT ORDERS that:

1.      The application is granted in part. Only the decision of Veteran Review and Appeal Board of Canada No. 100000851403 is set aside and the applicant’s appeal in that file shall be reconsidered.

2.      The applicant is granted half of her taxable costs.

 

 

“Johanne Gauthier”

 

ANNEX I

 

Pension Act 2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.   …   21.(2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,     (a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I; …   (5) In addition to any pension awarded under subsection (1) or (2), a member of the forces who             (a) is eligible for a pension under paragraph (1)( a) or (2)( a) or this subsection in respect of an injury or disease or an aggravation thereof, or has suffered an injury or disease or an aggravation thereof that would be pensionable under that provision if it had resulted in a disability, and   (b) is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph ( a)   shall, on application, be awarded a pension in accordance with the rates for basic and additional pension set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.

Loi sur les pensions 2. Les dispositions de la présente loi s’interprètent d’une façon libérale afin de donner effet à l’obligation reconnue du peuple canadien et du gouvernement du Canada d’indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.   …   21.(2) En ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l’armée de réserve pendant la Seconde Guerre mondiale ou le service militaire en temps de paix :   a) des pensions sont, sur demande, accordées aux membres des forces ou à leur égard, conformément aux taux prévus à l’annexe I pour les pensions de base ou supplémentaires, en cas d’invalidité causée par une blessure ou maladie — ou son aggravation — consécutive ou rattachée directement au service militaire;   …   (5) En plus de toute pension accordée au titre des paragraphes (1) ou (2), une pension est accordée conformément aux taux indiqués à l’annexe I pour les pensions de base ou supplémentaires, sur demande, à un membre des forces, relativement au degré d’invalidité supplémentaire qui résulte de son état, dans le cas où :   a) d’une part, il est admissible à une pension au titre des alinéas (1)a) ou (2)a) ou du présent paragraphe, ou a subi une blessure ou une maladie — ou une aggravation de celle-ci — qui aurait donné droit à une pension à ce titre si elle avait entraîné une invalidité;   b) d’autre part, il est frappé d’une invalidité supplémentaire résultant, en tout ou en partie, de la blessure, maladie ou aggravation qui donne ou aurait donné droit à la pension.

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-388-05

 

STYLE OF CAUSE:                          CHERYLYNN HUNT v.

 

                                                            ATTORNEY GENERAL OF CANADA

 

 

 

PLACE OF HEARING:                    VANCOUVER, B.C.

 

DATE OF HEARING:                      JULY 12, 2006

 

REASONS FOR ORDER:               GAUTHIER J.

AN ORDER

 

DATED:                                             AUGUST 25, 2006

 

 

 

APPEARANCES:

 

Ms. Cherylynn Hunt	ON HER OWN BEHALF
Mr. Ward Bansley	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

John Sims, Q.C. Deputy Attorney General of Canada

FOR THE RESPONDENT