Date: 20120313
Docket: T-1271-11
Citation:
2012 FC 303
Ottawa, Ontario, March 13, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
ROSARIA
DI DOMENICI
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY
GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision of the
Veterans Review and Appeal Board denying the applicant’s survivor claim for a
pension. The Board determined that there was no medical evidence that the
applicant’s late husband, Louis Peter Di Domenici, worsened his flat feet
during his active service from June 1, 1943 to November 29, 1944.
[2]
For the following reasons the application is dismissed.
Background
[3]
Mr. Di Domenici was born in 1918 and died in
1989. He volunteered and served in the army during the Second World War from
June 1943 to November 1944. At the time of his enrolment the medical records
indicate that he had right pes planus and left pes planus (bilateral flat feet).
[4]
Mrs. Di Domenici, his surviving spouse,
applied for a survivor’s disability pension. By decision dated April 26, 2010,
the Minister of Veteran Affairs determined that Mr. Di Domenici’s gastric ulcer
was pensionable under subsections 48(3) and 21(1) of the Pension Act,
RSC 1985, c P-6, but that his bilateral flat feet were
not. The basis of that negative decision was as follows:
A review of the service medical records reveals on his enrolment
medical examination in June 1943, bilateral flat feet was recorded. A further
review did not reveal any other reference to his flat feet bothering him, including
his release in October 1944.
Although your husband did have flat feet noted on his enrolment
our records do not show that he experienced any further foot trouble related to
flat feet throughout his military service. As a result, we regrettably
conclude the claimed right pes planus and left pes planus are not attributable
to, were not incurred during, or aggravated by, his National Resources
Mobilization Act service.
The Department, therefore, cannot grant disability pension
entitlement under subsections 48(3) and 21(1) of the Pension
Act.
[5]
The applicant sought review of this decision at
the Entitlement Review Panel in January 2011; the Panel affirmed the Minister’s
decision. The applicant appealed this decision to the Board which, on June 20,
2011, denied the claimed pension entitlement, finding that there was no medical
evidence that her husband’s flat footedness was in any way worsened during his
service.
[6]
The Board acknowledged the remarks made on a
medical examination prior to enrolment regarding “feet pain on walking far” and
noted the enrolment diagnosis of flat feet. The Board also noted that upon
release, the Veteran’s Medical Board Proceedings made no mention of the claimed
condition although he was said to suffer from an ingrown great toe nail
bilaterally.
[7]
The Board stated that it weighed the evidence,
drew every reasonable inference in favour of the applicant, and provided her
with the benefit of the doubt.
[8]
An applicant for a disability pension bears the
burden of producing evidence to establish the causal link between the
disability and the aggravation and the Board determined this burden was not
met.
Issue
[9]
In her memorandum, the applicant states that the
issues in “this application are whether the Board erred in overlooking evidence
that Louis’ flat feet worsened and, if not, whether it failed to properly
explain why it did not accept the evidence.”
Analysis
Standard of
Review
[10]
The applicant accepts that a tribunal’s decision
and assessment of evidence is reviewable on the reasonableness standard;
however, she submits that the Board’s “failure to articulate reasons for not
accepting evidence is an error of law and warrants judicial intervention on a
correctness standard: MacDonald v Canada (Attorney General), [1999] FCJ 346. I
agree with the respondent that MacDonald is distinguishable. There the
Board had failed to give any reason for not accepting new evidence that was
submitted on a reconsideration motion. The Court was careful at para. 22 to indicate
that the standard of review differed in that particular circumstance. Furthermore,
the Supreme Court in Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 14,
recently instructed that the adequacy of reasons is not a stand-alone basis for
quashing a decision; rather “the reasons must be read together with the outcome
and serve the purpose of showing whether the result falls within a range of
possible outcomes.” This directs a reasonableness review.
[11]
For these reasons, the appropriate standard to be applied to
decisions of the Board, as recently confirmed by this Court, is reasonableness:
Carnegie v Canada (Attorney General), 2012 FC 93.
The Impugned
Evidence
[12]
At the hearing counsel for the applicant
candidly acknowledged that the disagreement of the parties centred on one
specific document – an entry in Mr. Di Domenici’s Personnel Selection Record,
dated December 2, 1943 which reads as follows: “In view of lowering of Profile
to P3, L2 re-allocated from C.A.C. (Recoe) to R.C.A.M.C. (N.T.) General Duties,
L. of C.” The applicant submits that this is evidence of the worsening of Mr.
Di Domenici’s flat feet and that the Board overlooked it, or if it did not, it
failed to properly explain why it did not accept it as showing that the
condition had worsened.
[13]
This entry refers to Mr. Di Domenici’s PULHEMS
score, a measure of physical and mental health used by the armed forces. Soldiers
were graded numerically on the following: P = physique, U = upper limbs, L =
lower limbs, H = hearing, E = eyesight, M = mental function and S = stability.
[14]
The applicant reads the December 2, 1943 entry
as stating that two of Mr. Di Domenici’s ratings were lowered: P (physique) and
L (lower limbs). It is accepted that the L2 rating was “because of flat feet.”
[15]
The applicant in her memorandum states:
There was no record of Louis’ initial PULHEMS score on his
enlistment papers. … Louis’ discharge papers record that his PULHEMS score on
enlistment had been L-2. However, this is contrary to [the] note from December
2, 1943, which indicates a lowering of Louis’ PULHEMS profile, presumably from
L-1 to L-2.”
[16]
The applicant reads the December 2, 1943 note as
if the “comma” were an “and” such that would read: “In view of lowering of
Profile to P3 [and] L2 [Louis] re-allocated …” I accept that if there
was no evidence of Mr. Di Domenici’s L rating prior to this note, the proposed interpretation
would be available. Moreover, because it favours the veteran, it would be accepted
as the correct interpretation in keeping with section 39 of the Veterans
Review and Appeal Board Act, SC 1995, c 18,
which provides that the Board is to “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.”
[17]
However, there is evidence of the L rating of
Mr. Di Domenici prior to the 1943 note. As the applicant acknowledges, the
discharge papers state that on enlistment Mr. Di Domenici’s L rating was L2 and
that was because of his flat feet. The applicant submits that this entry must
be in error. I cannot agree. First, the document is an official armed forces
report and accordingly is a record that is admissible for the truth of its
contents in accordance subsection 26(1) with the Canada Evidence Act,
RSC 1985, c C-5 as an entry in a book kept in any office
or department of the Government of Canada. Second, there is no evidence to
suggest that Mr. Di Domenici was not rated L2 at the time of enlistment. In
fact, given his flat feet, the suggested prior rating of L1 would not have been
likely or accurate as a “1” rating is excellent. Common sense alone suggests
that the best rating Mr. Di Domenici could have obtained on enlistment given
his flat feet was L2.
[18]
Accordingly, I am unable to find that the Board ignored
any relevant evidence or that it failed to explain why it rejected the evidence
on which the applicant relies. In my view, the note merely states that Mr. Di
Domenici’s P rating was lowered (due, it appears, to his gastric distress) and
this combined with his L2 rating due to his flat feet, led to him to being
reallocated to General Duties at the Royal Canadian Army Medical Corps
[19]
Mr. Davis represented the applicant on a pro bono
basis. I commend him for having done so and for the professional and thorough
manner in which he carried out those duties. I also commend the Crown for
agreeing that each party would be responsible for its own costs, regardless of
the result.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is dismissed and no costs are ordered.
"Russel W. Zinn"
Email this Content