Date: 20000918
Docket: T-1332-99
BETWEEN:
EIKE TEUBERT
Applicant
and
ATTORNEY GENERAL OF CANADA and DEPARTMENT
OF VETERAN AFFAIRS
Respondents
REASONS FOR ORDER
TEITELBAUM, J:
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act of a decision of the Veterans Review and Appeal Board Canada (the Board) issued at Charlottetown, Prince Edward Island on June 16, 1999 wherein the Board found that the applicant is not disabled within the meaning of subsection 21(2) of the Pension Act and subsection 32(1) of the R.C.M.P. Superannuation Act.
FACTS
[2] The applicant, Eike Teubert, was born on March 25, 1944. He became a member of the R.C.M.P. on December 19, 1966 until his medical discharge effective July 16, 1998. Prior to his medical discharge, the applicant applied to the Department of Veterans Affairs for a disability pension alleging, among other things, that his spinal stenosis condition was service related. The spinal stenosis condition was ruled as "not pensionable" under subsection 32(1) of the RCMP Superannuation Act in accordance with the Pension Act.
[3] As part of his training, the applicant had to participate in an intense weight training program that included lifting weights equal to one's own body weight for up to one hour. The applicant was also injured in two motor vehicle accidents. The first occurred in 1971 while the applicant was on radar duty. His car was struck from behind by a vehicle moving at approximately 100 km/hour. An x-ray taken three days later did not confirm any visible injury. The second duty-related accident occurred in 1972 when the applicant's police vehicle was struck from behind by a half-ton truck. The applicant felt that his condition from the 1971 accident was aggravated by this impact.
[4] Over the next 25 years, the applicant experienced difficulty with his back in varying degrees. In December 1977, the applicant complained to Dr. Boake, his family physician, of stiffness and tenderness in his mid back region. Upon examination, Dr. Boake noted restricted movement in this area and a moderate amount of muscle spasm. In March 1995, the applicant underwent a L4-5 decompressive laminectomy for lumber spinal stenosis with good results. The applicant returned to active duty but still continued to experience chronic midline back pain. A report dated May 15, 1996 by Dr. Zwimpfer, a neurosurgeon, states that prolonged standing, wearing his holster and other paraphernalia that weighed approximately 20 lbs. may have contributed to this pain. In December 1996, the applicant was noted to have a significant exacerbation in his back condition resulting from his involvement in the transfer of a prisoner from one cell block to another. A few days after the incident, the applicant brought his foot down hard on the ground while handling a prisoner. The subsequent increased pain required the regular intake of narcotic analgesics to ease the pain. On examination by Drs. Zwimpfer and Boyd, it was decided that surgery was necessary in order to relieve some of the discomfort the applicant was experiencing. On November 13, 1997 the applicant underwent a posterior L3-4-5 fusion with depressive laminectomy with placement of spinal rods and bone graft.
[5] In the applicant's RCMP Occupational Fitness Assessment dated April 2, 1997 Dr. Robson indicates that the applicant's condition was "likely aggravated by many work related activities such as sitting, giving chase and jumping." The doctor makes this statement when asked "Is this problem work-related?" (See page 64, Board Record)
[6] In a report dated May 15, 1999, found at page 16 of the Board Record, Dr. Robson states:
| This patient has asked me to write a letter confirming that his disability is the result of a work-related injury. Medical reports submitted over the last few years should reveal all of the relevant facts and the timeline. The initial complaints date back to December, 1992, during a pursuit on foot. At this time he already had degenerative disc disease at L-3-4-5, with Grade 1 spondylolisthesis at L4-5. Subsequent to that, in 1994, he brought his left foot down heavily on the ground, during a tussle with a prisoner, and this must have delivered enough impact up his leg to either cause a disc protrusion or aggravate a disc which was not giving him much symptomatology till then. As well, he aggravated the instability associated with his preexisting spondylolisthesis, such that his spinal cord was being compressed. He experienced severe back and leg pain with some leg weakness. These symptoms were hardly compatible with police work. While awaiting his first spinal procedure, he still functioned, with the use of medications. After this procedure, his recovery was long and bumpy, but he managed to resume work briefly, before new symptoms arose which led to his being reinvestigated. He subsequently went on to have a double procedure to stabilize his spine as the first procedure had left with an unacceptable degree of instability. |
| There is no doubt that Mr. Teubert may have aggravated his back from time to time while off duty, but nowhere in my notes do I see any mention of any injury of sufficient magnitude to cause the problems noted above. |
| Of course, he did have preexisting conditions in his lower back, that these are degenerative and are possibly associated with other less significant wear-and-tear compatible with police work. In this case, there was at least one rea-end MVA in which the spine was involved, and I know at some point he jarred his spine jumping from a short retaining wall during a foot chase. Nevertheless, none of these incidents led to any degree of ominous symptomatology or prolonged disability. |
| In summary, we all have some minor back complaints, but this man suffered disabling injuries which led to two separate spinal surgeries requiring three procedures, and the only injuries reported to measuring this entire time of this severity, where those occurring on the job. The specialist has suggested that he is fit for only the most sedentary types of work, in which there is no inherent risk of injury, and I agree. |
| I hope this note helps to clarify things. |
[7] I take from the letter that the applicant suffered injuries while on duty as an R.C.M.P. officer and that, at times, the applicant "may have aggravated his back from time to time while off duty" but that, at these times, the off-duty activities were not of sufficient magnitude as to be the cause of the applicant's problems.
[8] Furthermore, on a Physician's Statement dated May 3, 1998 (page 113, Tribunal Record), Dr. Robson states under the heading: Specific medical diagnosis that "Spinal stenosis is resulting from cumulative injury to spine. Dates back to 1971(accident) when he had rearend MVA, had another (rear end accident)whiplash in 1972".
THE VETERANS REVIEW AND APPEAL BOARD DECISION
[9] The Board found that the applicant's "Spinal Stenosis Operated 01416" did not arise out of nor was it directly connected with service in the Royal Canadian Mounted Police.
[10] In its decision, the Board wrote:
| The Board recognizes the injuries in 1971-1972 that are referred to by the Appellant including the Clinical Report of 7 March 1972 which records an auto accident with a diagnosis of cervical strain and bruised right knee. However there is an absence of documentation in the files from 1972 to 1987 that would have this Board conclude that indeed service-related injuries were the causative factor or contributing factor to the spinal stenosis which is referred to in the report from Dr. Boyd, neurosurgeon, who refers to the degenerative scoliosis... |
| ...Notwithstanding Dr. Robson's contention that the duties related to the Appellant's police work (i.e. wear and tear), this Board has not been presented with any evidence of a duty relationship to the claimed condition. |
| The Board has reviewed all the documentation and taken into consideration the contentions of the Appellant and the letter from Dr. Robson who supports the finding that the duties may have played a role in the pre-existing condition of the lower back. |
| The Board has not been presented with a Report on Injury that would have it conclude that the Spinal Stenosis Operated is a result of the duties of this man's service. The Board rules to affirm. |
ISSUES
[11] Was the decision of the Board that the applicant's disability was not the result of "an injury or disease or an aggravation" that "arose out of or was directly connected" with his service in the R.C.M.P. patently unreasonable?
ARGUMENTS
Submissions of the Applicant
[12] The applicant submits that the decision of the Board to deny him eligibility for pension was patently unreasonable. According to the Ruling, the Board dismissed the appeal of the denial of pension benefit to the applicant based on the Report of Dr. J. Robson. Dr. Robson makes the statement that "none of these incidents (referring to the motor vehicle accidents, etc.) led to any degree of ominous symptomatology or prolonged disability". The Board failed to take into account that many medical conditions, back ailments being no exception, remain dormant while the underlying condition progresses for years before outward symptoms appear. There exists reports that between the years 1977-1987 the applicant sought medical attention for back pain and discomfort.
[13] In an earlier report dated May 3, 1998, Dr. Robson states that the applicant's back condition is "likely aggravated by many work-related activities" and lists some of them. Moreover, he stated that the applicant's medical diagnosis is: "spinal stenosis, resulting from cumulative injury to the spine. Dates back to 1971 when he had a rear end MVA, had another `whiplash' in 1972, lifting injury in 1975, etc." In making this statement, Dr. Robson acknowledges that the applicant sustained the injuries to his spine while in the employment of the R.C.M.P. Dr. Robson's opinion of the applicant's condition apparently changed when he was asked to write a report detailing his medical history for the Veterans Appeal Board.
[14] In Dishan v. Canada (Attorney General)1 this Court held that a decision by the Board was patently unreasonable as its decision was an unduly narrow interpretation of subsection 21(2) of the Pension Act. The Court found that the Board, in rendering its decision, failed to adhere to the principles set out in section 39 of the Veterans Review and Appeal Board Act, namely, to draw every reasonable inference in favour of the applicant, accept any uncontradicted evidence presented to it by the applicant that it considers to be credible, and finally, to resolve in favour of the applicant in the weighing of evidence as to whether the applicant has established a case.
[15] It is clear that there is a causal link between the applicant's underlying back condition and his service with the R.C.M.P. In MacDonald v. Canada (Attorney General)2 the Court found that if the initial injury or disease did not result in a disability, but rather resulted in a condition which then led to a disability, a pension may still be granted. In his report dated May 15, 1998, Dr. Robson states that the applicant aggravated the instability associated with his pre-existing spondylolisthesis when he brought down his foot heavily to the ground during a tussle with a prisoner.
[16] It is apparent from the reasons given by the Board that it failed to consider the causal chain of events that led to the applicant being unable to perform his duties as an R.C.M.P. officer. The applicant seeks to have the Board decision overturned based on its decision being patently unreasonable and an unduly narrow interpretation of paragraph 21(2)(a) of the Pension Act. Further, the Board failed to adhere to the principles set out in section 39 of the Veterans Review and Appeal Board Act in failing to weigh all of the evidence before it and make reasonable inferences. Finally, the applicant argues that the Board erred in finding that his back disability was not the result of an injury, disease or aggravation which was a consequence of his position with the R.C.M.P.
Submissions of the Respondent
[17] The respondent submits that the Board is entitled to a degree of deference from the Court in view of the fact that its decisions are "final and binding" and that the Board has full and exclusive jurisdiction to determine all matters relating to appeals.3 It is further submitted that when the issues of an appeal involve the weighing or interpretation of medical evidence and determining from it whether the claimant's disability was in fact caused or aggravated by military service, that these determinations are at the very heart of the specialized jurisdiction of the Board.
[18] Section 39 of the Veterans Review and Appeal Board Act does not mean that any evidence tendered by the applicant must be accepted by the Board. The evidence must be credible and reasonable and the obligation of the Board, therefore, is to interpret and evaluate all of the evidence. After doing so, if the Board concludes that a doubt exists, the matter is resolved in favour of the applicant.4
[19] It is submitted that the Board carefully reviewed all of the evidence before it. The Board stated that there was an absence of documentation in the record from 1972 to 1987, which would have the Board conclude that service related injuries were a cause or contributing factor to the spinal stenosis. The Board found that the lower back complaints recorded in the tribunal records throughout these years appear to be related to non-service incidents.
[20] In considering the report of Dr. Robson dated May 15, 1999, the Board concluded this report supported the position that work related duties may have played a role in the condition of the lower back, but the Board went on to say that it was not presented with a Report of Injury that would have it conclude the spinal stenosis was a result of service duties.
[21] Further, Dr. Robson's statement dated May 3, 1998 concludes that the disability may be from a cumulative injury to the spine. This is not disputed, rather it is the service relationship of the cumulative injury that appears to be in question. The documentation notes no evidence of an injury to the lower back at the time of the 1971 or 1972 motor vehicle accidents. The complaints at the time of the MVA were limited to neck, mid-back and knee. The recorded incidents in 1979, 1987 and 1993 to the lower back were non-service related incidents. There was no Report on Injury before the Board supporting the duty relationship of the December 1996 incident.
[22] Although Dr. Robson's opinion appears to be contradictory, even if it were not, the Board does not have to accept his evidence if it finds it lacking in credibility. This is acceptable provided that the Board says that it is not credible and gives reasons for its findings.5 In this case, the Board stated that it did not find Dr. Robson's views persuasive due to the lack of any Reports on Injury that would relate the spinal stenosis condition to the service duties.
RELEVANT LEGISLATION
R.C.M.P. Superannuation Act
| 32. (1) Subject to this Part, an award in accordance with the Pension Act shall be granted to or in respect of
(a) any person to whom Part VI of the former Act applied at any time before April 1, 1960, who, either before or after that time, has suffered a disability or has died, or
(b) any person who served in the Force at any time after March 31, 1960 as a contributor under Part I of this Act, and who has suffered a disability, either before or after that time, or has died,
in any case where the injury or disease or aggravation thereof resulting in the disability or death in respect of which the application for pension is made arose out of, or was directly connected with, his service in the Force.
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32. (1) Sous réserve des autres dispositions de la présente partie, une pension conforme à la Loi sur les pensions doit être accordée à toute personne ou à l'égard de toute personne_:
a) visée à la partie VI de l'ancienne loi à tout moment avant le 1er avril 1960, qui, soit avant, soit après cette date, a subi une invalidité ou est décédée;
b) qui a servi dans la Gendarmerie à tout moment après le 31 mars 1960 comme contributeur selon la partie I de la présente loi, et qui a subi une invalidité, soit avant, soit après cette date, ou est décédée,
chaque fois que la blessure ou la maladie ou son aggravation ayant occasionné l'invalidité ou le décès sur lequel porte la demande de pension était consécutive ou se rattachait directement à son service dans la Gendarmerie.
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Pension Act
| 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;
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| 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;
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Veterans Review and Appeal Board Act
| 26. The Board has full and exclusive jurisdiction to hear, determine and deal with all appeals that may be made to the Board under section 25 or under the War Veterans Allowance Act or any other Act of Parliament, and all matters related to those appeals.
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26. Le Tribunal a compétence exclusive pour statuer sur tout appel interjeté en vertu de l'article 25, ou sous le régime de la Loi sur les allocations aux anciens combattants ou de toute autre loi fédérale, ainsi que sur toute question connexe.
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and section 31 contains a finality clause:
| 31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
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31. La décision de la majorité des membres du comité d'appel vaut décision du Tribunal; elle est définitive et exécutoire.
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Section 39 directs the Board in the manner in which it must approach the evidence:
| 39. In all proceedings under this Act, the Board shall
(a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant;
(b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and
(c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case.
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39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve_:
a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci;
b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence;
c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
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ANALYSIS
[23] Given the statutory provisions conferring exclusive jurisdiction on the Board and rendering its decisions final and binding, and given the fact that the issue in dispute involves the application of the statute to the facts found and is within the area of expertise of the Board, the standard of review to be applied is that of patent unreasonableness.6 Therefore, a reviewing Court may only interfere when the impugned decision was based on an error of law; or on an erroneous finding of fact made in a perverse and capricious manner or without regard to the material before it.7
[24] While the applicant has the burden of proving his entitlement, he is assisted by section 39 of the Veterans Review and Appeal Board Act which directs the Board on the manner in which in must approach the evidence. The Board is required to draw every reasonable inference from the evidence in favour of the complainant; accept as true credible and trustworthy evidence produced by the complainant; and in weighing the evidence, resolve any doubt in favour of the complainant.
[25] It appears from the Board's reasons that it recognized the injuries sustained from the two duty-related motor vehicle accidents in 1971 and 1972. However, the Board found that there was "an absence of documents in the files from 1972 to 1987 that would have this Board conclude that indeed service-related injuries were the causative factor or contributing factor to the spinal stenosis".8
[26] The central issue in this case is whether the Board interpreted the evidence before it in the spirit required by section 39 of the Veterans Review and Appeal Board. The Board concluded that notwithstanding Dr. Robson's many reports in which he supported the finding that work related duties may have played a role in the condition of the applicant's lower back, that the Board was not presented with a Report of Injury that would have the Board conclude the spinal stenosis was a result of service duties.
[27] However, there also exists an R.C.M.P. Occupational Fitness Assessment, dated April 9, 1997, in which Dr. Robson wrote that the applicant's lower back, hip and leg pain were "likely aggravated mainly work-related activities such as sitting, giving chase, jumping"9. Moreover, in a Physician's Statement for Veteran's Affairs Canada, Dr. Robson diagnoses the applicant with "spinal stenosis resulting from cumulative injury to the spine. Dates back to 1971 when he had rearend MVA, had another whiplash in 1972, lifting injury 1975, etc."10
[28] There are, as well, two documents in the Board's Record, found at pages 12 and 13, emanating from O.I.C. Admin. Services Section "E" Div. entitled Tax Treatment of Salary Duty-Related Injury/Illness. Both these documents are dated June 26, 1998 but relate to two different periods.
[29] I believe it important to reproduce, in part, these two memoranda as I am satisfied the R.C.M.P. clearly and unequivocally accept that because of duty-related injury, the applicant missed 132 days in the 1995 calendar year and lost 259 days during the 1997 calendar year as a result of a duty-related injury.
| 1. This memorandum confirms that a period of 132 work days were missed during the 1995 calendar year, as a result of a duty-related illness/injury. |
| 2. During this period, in accordance with the Workers' Compensation Board provisions for the Province of British Columbia, you would have been eligible for benefits totalling $19,895.04. This information is provided pursuant to Section 110(1)(f)(ii) of the Income Tax Act. |
| 3. The attached certificate, Form T5007, "Statement of Benefits", is forwarded for your use when claiming any tax credits for which you may be entitled. Please wait for amended T4 for taxation year 1995 and forward T50007 and amended T4 to Revenue Canada together when claiming an adjustment. |
| 1. This memorandum confirms that a period of 259 work days were missed during the 1997 calendar year, as a result of a duty-related illness/injury. |
| 2. During this period, in accordance with the Workers' Compensation Board provisions for the Province of British Columbia, you would have been eligible for benefits totalling $41,585.04. This information is provided pursuant to Section 110(1)(f)(ii) of the Income Tax Act. |
| 3. The attached certificate, Form T5007, "Statement of Benefits", is forwarded for your use when claiming any tax credits for which you may be entitled. Please wait for amended T4 for taxation year 1997 and forward T5007 and amended T4 to Revenue Canada together when claiming an adjustment. |
(Emphasis added)
[30] No mention of the Tax Treatment of Salary documents are made by the Board in its decision.
[31] I accept that the Board does not have to mention or discuss every document put before it. The difficulty I have is how it made no mention of two extremely important documents which clearly accept that the injuries complained of by the applicant were work related.
[32] This fact alone is sufficient for me to state that the Board's decision is patently unreasonable (see Roberts v. Attorney General of Canada, December 14, 1999, T-715-99 and T-716-99).
[33] In light of all of the above mentioned evidence that the Board had before it and the statutory directions of section 39, was it reasonably open to the Board to conclude that the applicant had not established that his spinal stenosis was a result of service duties?
[34] I am satisfied that section 39 establishes that the applicant must be given every benefit of the doubt and every reasonable inference should be resolved in his favour.
[35] The Board found that the applicant did not meet his burden of proof of establishing that his condition arose out of or was directly connected to his service, despite the fact that in many reports Dr. Robson wrote that his condition was related to service activities and despite the finding of the Tax Treatment memorandum of the applicant's salary. I could find no compelling reason for the Board to reject Dr. Robson's medical opinion. Section 39 allows for evidence to be rejected if it lacks credibility or is unreasonable. Nothing in the file indicates that Dr. Robson's reports were either. The Board found that Dr. Robson's reports were "not persuasive", but did not find that the reports lacked credibility. In fact, the Board was required to weigh the evidence, and if doubt exists, to find in favour of the applicant.
[36] Therefore, I can only conclude that the Board reached its decision by misapplying section 39 of the Veterans Review and Appeals Board Act.
[37] I am satisfied that since the Board failed to show that Dr. Robson's reports lacked credibility or are unreasonable, the Board, in applying section 39, must give the benefit of the doubt to the applicant.
[38] As I have stated, Dr. Robson did state that the applicant's condition was related to service activities.
[39] The application for judicial review is allowed. The matter is returned for a new hearing before a differently composed tribunal.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
September 18, 2000
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1[1999] F.C.J. No. 171 Court File No. T-59-98
2[1999] F.C.J. No. 346 Court File No. T-1081-98
3Veterans Review and Appeal Board Act, S. S. 1995, c.18, s.26 and 31.
4Tonner v. Canada (1995), 94 F.T.R. 146 (T.D.) at 160.
5Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314.
6 Metcalfe v. Canada [1999] F.C.J. No. 22 at para 13; National Corn Growers Assn. V. Canada (Import Tribunal) , [1990] 2 S.C.R. 1324; Canada (Director of Research & Investigation) v. Southam Inc., [1997] 1 S.C.R. 748
7Macdonald, supra note 3, para 21; Hall v. Canada (Attorney General) (T-2267-97, June 22, 1998)
8Board Record, Report of the Board, p. 4
9Board Record, RCMP Occupational Fitness Assessment by Dr. Robson, p. 64
10Board Record, Physician's Statement by Dr. Robson, p. 113
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