Docket: T-1349-10
Citation: 2011
FC 1047
Ottawa, Ontario, September 2, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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CYRIL EUGENE MCLEAN
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr. Cyril
McLean served as a member of the RCMP from 1970 until his retirement as
Inspector in 1998. He started off in small detachments in Saskatchewan, then moved to headquarters
in Ottawa in 1978. Thereafter, he
served in a number of overseas assignments.
[2]
In 2005,
Mr. McLean applied for a disability pension. He claimed that bilateral
osteoarthritis in his knees arose from his service in the RCMP. He relied on
evidence of a number of knee injuries that he sustained in the early to
mid-1970s, as well as a medical opinion linking those injuries to his current
condition.
[3]
Mr.
McLean’s claim was turned down by the Minister of Veterans Affairs, by an
Entitlement Review Panel, and by an Entitlement Appeal Board, mainly on the
basis that the evidence did not support a connection between his injuries and
osteoarthritis. He sought judicial review of the latter decision in Federal
Court and Justice Michael Phelan ordered the Board to reassess Mr. McLean’s
claim. Justice Phelan found that the Board had ignored evidence about the
nature of Mr. McLean’s law enforcement experiences in the 1970s, had unreasonably
questioned the reliability of the medical report relied on by Mr. McLean, and had
failed to abide by the evidentiary rules set out in the Veterans Review and
Appeal Board Act, SC 1995, c 18, s 39 (statutory references are set out in
Annex A).
[4]
On its
second assessment, the Board again concluded that Mr. McLean’s claim was not
supported by the evidence. He argues that the Board made similar errors again
and arrived at an unreasonable conclusion. He asks me to quash the Board’s
decision. However, I can find no basis for overturning the Board’s decision and
must, therefore, dismiss this application for judicial review. In my view, the
Board’s conclusion is defensible based on the law and the evidence before it.
[5]
The sole
issue is whether the Board’s decision was unreasonable.
II. The Board’s Decision
[6]
Before
the Board, Mr. McLean argued that he sustained numerous knee injuries in the
course of his service. He said that being an RCMP officer in rural Saskatchewan in the 1970s
was a strenuous and rough occupation, which sometimes involved breaking up
fights and chasing suspects on foot. He argued that this work, together with an
on-duty car accident in 1973, injured his knees and caused his present
disability.
[7]
The
Board reviewed the medical evidence from the 1970s, which included the
following:
• A clinical report dated July 13,
1973 that mentions Mr. McLean’s right knee, although the context is unclear;
• A clinical report dated November
23, 1974 that provides a diagnosis of “torn meniscus R medial”;
• A clinical report dated July 1976 that
provides a diagnosis of a “possible lateral meniscus tear” of the left knee,
with a complaint of discomfort in the left knee;
• A clinical report dated August 12,
1976 that diagnoses an injury to the right medial meniscus;
• A letter signed by Mr. McLean on
August 13, 1976, recounting an incident in which he injured his knee picking up
garbage near his house on his way home from work;
• A letter signed by Mr. McLean on
August 24, 1976, reporting that his knee had healed and that he returned to
full duties on August 17, 1976;
• A clinical report dated 13 December, 1976 that diagnoses
a left medial meniscus tear;
• A letter dated January 14, 1977 by an
orthopaedic surgeon, Dr. John Wedge, to whom Mr. McLean was referred. Dr. Wedge
noted that the referral was for chronic knee pain over the previous five
years. Acute pain and swelling of the knee in August 1976 was noted though
without “real trauma” to the knee. Dr. Wedge observed that Mr. McLean “has
never had any serious injuries to either knee.” He provided a diagnosis of
chondromalacia patella and noted that he did “not feel that he has a
significant story to suggest a tear of his meniscus”;
• A clinical report dated September
30, 1977 that provides a diagnosis of post-traumatic chondromalacia patella of
the right knee; and
• A clinical report dated December
18, 1978 that notes a sore left knee with a diagnosis of chondromalacia patella.
[8]
The
Board next considered the medical reports from 2004 to the present:
• A diagnostic imaging report dated
February 1, 2004 noted no fracture, dislocation or effusion present after a
fall involving the left knee;
• An MRI dated June 22, 2005 on the
left knee noted recurrent medial knee pain and tears of the lateral meniscus,
under-surface fraying of the medial meniscus, and evidence of past injury to
the medial collateral ligament;
• Dr. R.R. Glasgow, an orthopaedic
surgeon, noted that Mr. McLean’s history includes “a right knee injury
sustained…while working as a RCMP officer.” He diagnosed a meniscal tear in
the right knee and recommended an arthroscopy;
• Dr. Ruben Hansen provided several
reports including a provisional diagnosis of osteoarthritis of the right knee
on November 24, 2005 and a confirmed diagnosis in the left knee. The report
notes bilateral knee trauma in the 1970s from “dealing with perpetrators.” In
a report dated February 22, 2006 he notes “as his physician and advocate…he has
radiologic findings of cartilage injury within both knees that again are
typical of chronic, recurrent injury sustained in law enforcement personnel.”
In a June 12, 2006 letter he notes a “rather extensive list of traumatic
injuries” to “support my claim of osteoarthritis of the left and right knee”
that he believes is “directly linked to his years of service in the RCMP.” A
report from October 30, 2006 notes that “his complaints of joint pain in areas
included in trauma early in his career are consistent with osteoarthritic
complications.”
[9]
The
Board also considered the following evidence from Mr. McLean’s family members
and former colleagues:
• Mr. Ben Soave said he trained with
Mr. McLean in 1970 and recalled that he had suffered several injuries in
training and in a car accident near Kindersley,
Saskatchewan;
• Mr. Bob Preston stated that he
served with Mr. McLean and recalled the car accident and his knee problems;
• Mr. T.A. Gibbons recalled that Mr.
McLean had been involved in many arrests and bar fights. He also stated that
Mr. McLean had suffered service-related knee injuries in 1971, a second injury
sometime between 1972 and 1977, and in a car accident;
• Mr. Allan D. Grier described
working conditions for RCMP officers in the area where Mr. McLean worked and
noted that injuries were common and were often self-treated. He also recalled
the car accident and the fact that Mr. McLean had injured his knees;
• Mr. McLean’s wife recalled that he
had knee complaints and that after the car accident she had to bandage his
knees for several days; and
• Mr. McLean’s daughter, Ms. Andrea
McLean, and her husband, Mr. Lucas Ewart, recalled stories about Mr. McLean’s
injuries.
[10]
The
Board made a number of findings of fact to settle issues that had been in
dispute in prior hearings:
• It accepted that Mr. McLean had been involved in a car
accident during his service;
• It acknowledged that the
early years of Mr. McLean’s service were rough and likely caused him numerous,
relatively minor, injuries;
• It found that a
confirmed diagnosis of bilateral chondromalacia patella was established by Dr.
John Wedge in his report of January 14, 1977;
• It concluded that Mr.
McLean had provided sufficient evidence to establish a diagnosis of bilateral
osteoarthritis of the knees;
• It found that Mr.
McLean’s evidence on the whole was credible, and there was no indication of any
attempt to mislead or exaggerate;
• It did not doubt that
Mr. McLean had suffered some injury to his knees in the course of his duties
and acknowledged his belief that those injuries caused or contributed to his
disability.
[11]
The
Board found there was only one question to decide: was the evidence sufficient
to allow a finding that Mr. McLean’s bilateral knee osteoarthritis after his
retirement arose out of or was directly connected with his RCMP service in the
1970s, pursuant to subsection 21(2) of the Pension Act?
[12]
Along
with the whole of the evidence, the Board considered the Entitlement
Eligibility Guidelines (EEGs). It acknowledged that, while not binding, the
EEGs express the current state of medical knowledge and consensus on the cause
of osteoarthritis based on a broad review of medical studies. It noted that
the purpose of the EEGs was to promote sound and consistent decision-making.
It then reviewed certain key statements found in the EEGs:
• Osteoarthritis is
primarily associated with natural processes connected with aging. However,
medical consensus also recognizes that direct injury to the joints from
specific or cumulative joint trauma can be a causal factor in the acceleration
of the condition;
• For pension entitlement
on the basis of osteoarthritis, there must be evidence of specific joint injury
or trauma arising from the applicant’s service;
• Joint trauma can be
either “specific” or “cumulative.” Specific trauma is a physical injury to a
joint, including a fracture but excluding soft-tissue injury. The risk of
developing osteoarthritis increases with the severity of the specific trauma.
In the knee, the type of specific trauma most strongly associated with
osteoarthritis is injury involving direct damage to the articular cartilage and
underlying subchondral bone of the joint, or specific injury to ligaments and tendons
resulting in an unstable joint. Specific trauma sufficient to cause or
aggravate osteoarthritis will result in acute symptoms of pain, swelling, or
altered mobility within 24 hours of the injury lasting several days following
onset in the absence of medical intervention. Signs and symptoms of
osteoarthritis must present in the affected joint within 25 years of the
specific trauma in order to causally connect the osteoarthritis to the
traumatic injury; and
• Cumulative joint trauma
results from repetitive activity which involves an increased load placed on a
specific weight-bearing joint over an extended time period. The medical
consensus is that osteoarthritis in weight-bearing joints may be accelerated by
cumulative physical trauma to the joints. Consequently, cumulative joint
trauma should be considered in a disability claim for osteoarthritis in the
absence of a specific injury to that joint. Cumulative joint trauma of the
knees is defined with reference to certain, specific occupational activities.
[13]
The
Board weighed the evidence and considered the EEGs to determine whether a
causal link had been established between Mr. McLean’s current osteoarthritis
and his RCMP service in the 1970s. It found that the evidence did not
establish that connection for the following reasons:
• The first medical entry
related to a knee injury was in July 1973. If the estimates of when the car
accident occurred are correct, this report would be several months after the
accident, and there is no explanation of what gave rise to this right knee
complaint;
• The diagnosis of a torn
right medial meniscus in November 1974 is without any indication of a
precipitating event. The report of a suspected left lateral meniscal tear in
July 1976 also gives no indication of what caused the complaint;
• The report of the August
1976 injury to the right knee clearly establishes that the injury occurred when
Mr. McLean, returning home from his RCMP detachment, bent over to pick up some
garbage in front of his house. While Mr. McLean argued that this was a trivial
injury superimposed upon a previous, more serious, service-related injury, the
Board found there was no evidence to support that submission. The Board
concluded it was not a service-related injury since he was returning home from
work, was in front of his own house, and was not on duty or under the control
of the RCMP in any meaningful sense. Accordingly, he was within the sphere of
personal activity and his status as an RCMP officer played no part in the
event;
• While Mr. McLean
suffered a further right knee injury in January 2004, this was clearly
unrelated to his RCMP service given that he retired in 1998;
• Dr. Wedge’s 1977 report
noted a history of five years of knee pain, but stated that Mr. McLean had
never had “serious injuries” to either knee. The report found that previous
diagnoses of meniscal tears were inaccurate given the absence of a “significant
story to suggest a tear of the meniscus.” Instead, a diagnosis of
chondromalacia patella was given; and
• Two more reports
diagnosing chondromalacia patella were given in 1977 on the right knee and in
1978 on the left knee.
[14]
The
Board then considered Dr. Hansen’s evidence. It found this, too, was
insufficient to support a connection between Mr. McLean’s RCMP service and
osteoarthritis. While the Board did not question Dr. Hansen’s medical skills,
it found his opinion not to be credible to the extent that he relied on
unproven assumptions to draw a causal connection between Mr. McLean’s injuries from
the 1970s and his current experience with osteoarthritis, in particular:
• He based his opinion on the working
conditions in the first few years of Mr. McLean’s career; however, there was no
evidence of any further injury or complaint of knee problems until well after
his retirement;
• Dr. Hansen failed to consider that osteoarthritis
is a natural degenerative condition experienced by a significant portion of the
population even in the absence of any prior trauma;
• He based his opinion explicitly on
what he describes as an “extensive list of traumatic injuries” between 1973 and
1978. However, none of the medical documents give any indication that the
complaints were precipitated by “trauma.” Indeed, with the exception of
non-service injuries, no precipitating event of any sort is identified. The
Board was not prepared simply to assume the complaints arose directly from a
service-related trauma. Indeed, the 1977 report from Dr. Wedge noted that
significant trauma was denied by Mr. McLean and found no events significant
enough to suggest meniscal tears;
• The Board had little evidence
before it to support the argument that police officers have a higher incidence
of osteoarthritis secondary to trauma or, more specifically, that Mr. McLean’s
osteoarthritis arose from traumatic injury. The Board noted that an opinion
from an objective orthopaedic surgeon might have been helpful. The Board also
noted that although Mr. McLean had been under the care of a surgeon, no
evidence or medical reports were provided from the treating specialist;
• Dr. Hansen did not provide a
credible explanation linking the chondromalacia patella diagnosed in 1977 and
1978 to RCMP service in the absence of traumatic knee injury. Without a
detailed medical opinion addressing this alleged connection, the Board was
unable to infer that osteoarthritis of the knees, or chondromalacia patella,
had resulted from injuries arising from RCMP service.
[15]
The
Board also noted that, while credible, Mr. McLean, his wife, his daughter, and
his son-in-law were not medically trained and, therefore, their evidence
linking osteoarthritis to service injuries could not be given much weight.
IV.
Was the
Board’s Decision Unreasonable?
(a)
Mr.
McLean’s submissions
[16]
Mr.
McLean submits that section 39 of the VRAB Act limits the Board’s jurisdiction
to assess evidence before it. That is, it imposes certain obligations on the
Board which, if ignored or misapplied, justify setting aside the Board’s decision
on judicial review:
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.
[17]
In
this case, Mr. McLean argues that the Board erred in rejecting uncontradicted,
credible evidence from himself and Dr. Hansen, and in failing to resolve in his
favour any doubt it may have had in the weighing of the evidence. This
submission is tied to Mr. McLean’s main contention that the Board erred in
finding that the evidence did not establish a connection between his current osteoarthritis
and his RCMP service in the 1970s.
[18]
Mr.
McLean also points to a number of alleged errors in the Board’s analysis. First,
he says the Board failed to take into account the fact that he suffered his
first knee injuries during RCMP training in 1970. It also ignored the fact that
he was subsequently involved in many arrests in which he re-injured his knees.
While the Board found Mr. McLean generally to be credible, it failed, he
maintains, to provide reasons why it did not accept his evidence in this area.
Therefore, it failed to abide by the duty to accept credible, uncontradicted
evidence (s 39(b)).
[19]
Second,
Mr. McLean says that the Board erroneously concluded that his right knee injury
in 1976 was not related to his RCMP service. The Board was required to look at
whether the activity leading to the injury was performed within the context of his
service: Wannamaker v Canada (Attorney General), 2007 FCA 126, at para
42. The Board’s decision to separate the activity in which he was engaged
(returning home from work) from the circumstances of his RCMP service was
unreasonable. Going to and from work, he submits, is directly
related to his service in the RCMP; he would not have been in front of his
house that day if he had not been returning from work.
[20]
Third,
Mr. McLean submits that the Board erred in its reliance on the EEGs. The Board
preferred the EEGs over the uncontradicted opinion of Dr. Hansen, who had
concluded that Mr. McLean’s disability was directly linked to injuries
sustained during his RCMP service. While s 35(2) of the Pension Act
allows the Board to use the EEGs, greater weight must be given to the medical
evidence filed by an applicant: Cramb v Canada (Attorney General), 2006 FC 638 at para
25. The EEGs are “soft laws” that can be considered by administrative
decision-makers, but they cannot be given undue weight: R. Sullivan, Sullivan
on the Construction of Statutes 5th ed, at p 621-6; Miller
McClelland Ltd v Barrhead Savings & Credit Union Ltd, [1995] AJ No 167
at paras 8-10 (CA). Dr. Hansen’s evidence was directed at Mr. McLean’s particular
situation, unlike the EEGs. Additionally, Mr. McLean maintains that if the Board
wished to rely on the EEGs, it should have afforded him an opportunity to respond
to them.
[21]
Fourth,
Mr. McLean submits that the Board’s finding that Dr. Hansen’s evidence was not
credible was unreasonable. The Board did not provide any support for that finding.
Dr. Hansen provided evidence of Mr. McLean’s entire medical history as it
related to his disability, and it was uncontradicted by other evidence. The Board
stated that Dr. Hansen had noted a “list of extensive traumatic injuries”
without identifying the specific traumas and without noting that osteoarthritis
is a degenerative condition. However, Mr. McLean notes that there was evidence
before the Board of three specific traumatic injuries to his knees:
(i)
1970 injury during
training:
These
injuries were corroborated by Mr. Soave and Mr. Preston. The Board failed to
consider this material.
(ii)
1973 car accident:
The
Board failed to recognize this as a trauma leading to Mr. McLean’s disability;
and
(iii)
1976 injury to right
knee while returning from work:
The Board erroneously concluded that this
was not a service-related injury.
[22]
Fifth,
Mr. McLean submits that the Board erred in finding that the opinion of an
orthopaedic surgeon could have helped it decide whether the injuries in
question arose out of or were directly connected to his service. Mr. McLean
points out that the Board had before it the opinions of two orthopaedic
surgeons (Drs. Wedge and Glasgow), who had diagnosed chronic episodes of
chondromalacia patella and meniscal tears, respectively. In addition, Mr.
McLean notes that the Board failed to seek an independent medical opinion (as
it had the power to do) but, instead, relied on its own medical expertise: Theriault
v Canada (Attorney General), 2006 FC 1070 at para 60.
[23]
Sixth,
Mr. McLean says there was evidence before the Board that his disability was
present in 1977 (according to Dr. Wedge’s report), many years before his 2004
injury.
(b)
Causation
and s 39 of the VRAB Act
[24]
According
to s 21(2)(a) of the Pension Act, an applicant must show that service
was the “primary cause” of the injury or the disability and must establish
causation: Lunn, above at para 50 (citing Boisvert v Canada (Attorney
General),
2009 FC 735 at para 24). In determining whether causation has been
established, decision-makers are required to consider the presumptions
found in subsection 21(3) of the Pension Act, as well as section 2 of
the Pension Act and section 3 of the VRAB Act which call for a
broad and liberal construction and interpretation of the provisions of the two
statutes.
[25]
Additionally,
s 39 of the VRAB Act sets out rules designed to favour an applicant with
respect to his or her burden of proof. However, the effect of this provision
is not to compel the Board to accept all of the allegations made by a member (Boisvert,
above, at para 28). Rather, the applicant must establish, on a balance of
probabilities, that he or she suffers from a disability and that the disability
arose out of or was directly connected with his or her military service.
[26]
According
to Justice Sharlow in Wannamaker, the purpose of section 39 is to ensure
that the evidence in support of an application is viewed in the best possible
light, but it does not relieve the applicant of the burden of proving
entitlement. Nor does it operate to require the Board to accept all the evidence
presented by an applicant. For instance, if the Board finds certain evidence
not to be credible, it need not accept it, even if it is uncontradicted (at
paras 5-6).
(c)
Application
to the facts in this case
[27]
The
Board accepted that Mr. McLean had been in a car accident during his service,
that he had suffered numerous, relatively minor, injuries in the course of the
early years of his service, and that he had been diagnosed with chondromalacia
patella in 1977. The Board explicitly stated that it did not doubt that he had
suffered injuries to his knees in the course of his service. It accepted the
credible, uncontradicted evidence before it in these areas.
[28]
However,
the Board correctly noted that there were significant gaps in the evidence.
For example, there was little evidence about the cause, nature or severity of Mr.
McLean’s injuries. The evidence did not contain details that would have
allowed the Board to identify Mr. McLean’s injuries as the cause of his present
disability. While Mr. McLean had been diagnosed with chondromalacia patella
and possibly with meniscal tears, no medical report described how those
conditions came about.
[29]
I
see no error in the Board’s conclusion that Mr. McLean’s knee injury in 1976 was
not service-related. In Wannamaker, above, an applicant who slipped and
fell on work property while on his way to work was found to have engaged in an
activity relating to his military service (that conclusion was overturned on
other grounds by the Federal Court of Appeal, above). In my view, this case is
distinguishable from Wannamaker. Here, Mr. McLean was not on work
property when his injury occurred; nor was he actually in the act of returning
from work at the time. Mr. McLean stopped to pick something off the ground as
he arrived home. The Board reasonably concluded that Mr. McLean was “clearly
within the sphere of personal activity” when the injury occurred.
[30]
Nor
can I conclude that the Board’s use of the EEGs was unreasonable. The Board acknowledged
that the EEGs had been used for guidance only, in an effort to promote sound,
consistent decision-making. As I read its decision, the Board did not
substitute its interpretation of the EEGs for the “uncontradicted” opinion of
Dr. Hansen. Having reasonably determined, in my view, that Dr. Hansen’s
evidence could not be relied on to establish causation, it was open to the Board
to look to the EEGs for guidance on the mechanism of action, symptoms,
prognosis, and etiology of osteoarthritis.
[31]
Further,
the Board explained its concerns about Dr. Hansen’s opinion. The absence of
details about Mr. McLean’s injuries led the Board to conclude that Dr. Hansen’s
opinion was not supported by the evidence. As I see it, the Board found that
Dr. Hansen’s evidence drew a causal connection between Mr. McLean’s service and
his present osteoarthritis based on unproven assumptions about the frequency,
nature and extent of his alleged injuries. Further, the Board’s additional
concerns about Dr. Hansen’s credibility and objectivity derived from his role
as an “advocate” for Mr. McLean and his failure to consider that osteoarthritis
is a natural degenerative condition experienced by a large number of
individuals in the absence of trauma.
[32]
Regarding
the application of s 21(3) of the Pension Act, I cannot conclude
that the Board erred in its approach. Mr. McLean asserted that s 21(3) of the Pension
Act operates to create a presumption that the knee injuries he sustained in
training in 1970 were service-related. However, that presumption does not
establish a causal connection between those injuries and a current disability: Lunn,
above. Mr. McLean’s injuries during training are presumed to be
service-related, but that does not prove that his osteoarthritis was caused by
those injuries. In any case, the injuries were unspecified and did not appear
to require any treatment or time off. Given the dearth of detail about the
kind, nature or extent of those injuries, I cannot conclude that the Board
erred in its treatment of that evidence.
[33]
Overall,
I do not see any reviewable error with respect to the Board’s treatment of the
evidence in light of section 39 of the VRAB Act. The Board found that Mr.
McLean had not established, on a balance of probabilities, the required causal
connection between his present disability and injuries incurred during his service
in the 1970s. That determination was not unreasonable based on the law and the
facts before it.
V.
Conclusion
and Disposition
[34]
I
do not see any reviewable error in the Board’s treatment of the evidence or its
interpretation of the applicable statutes. Further, as Mr. McLean had not
established, on a balance of probabilities, the required causal connection
between his present disability and injuries incurred during service, the
Board’s conclusion was not unreasonable.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed, with costs.
“James
W. O’Reilly”
Annex “A”
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Review
and Appeal Board Act,
SC 1995, c 18
Rules
of 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.
|
Loi
sur le Tribunal des anciens combattants (révision et appel), LC 1995, ch 18
Règles
régissant la preuve
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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