Date: 20080327
Docket: T-2181-06
Citation: 2008 FC 380
Vancouver, British Columbia, March 27, 2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
GORDON
GOLDSWORTHY
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 Canada (the Board) dated January 25, 2006 (the Decision), in which
the Board denied the Applicant’s claim for disability pension benefits for
cervical disc disease.
[2]
The
Applicant was represented by an Advocate before the Board but was
self-represented on this application for judicial review.
[3]
The
Applicant says that his cervical disc disease was caused by asymptomatic
microtrauma. He described it as numerous microscopic lesions suffered during
his 28 years of service as a Member of the Royal Canadian Mounted Police
(RCMP).
Background
[4]
The
Applicant said that during his service career, his activities and experiences
included significant periods of boating on rough water, snowmobiling on rough
terrain and driving trucks on rough roads. He also said that he was involved in
six motor vehicle accidents (three vehicles were written off) and numerous
physical altercations. Although these activities often involved full-body
impact and strain on his arms and shoulders, the Applicant was never admitted
to hospital and received medical treatment for only three injuries: a cracked
rib in 1977, a soft tissue injury in 1985 and a damaged knee in 1988. Before he
retired, the Applicant reported problems with his knee, partial hearing loss
and pain in his lower back. He currently receives a pension in connection with
these three disabilities.
[5]
The
Applicant’s cervical disc disease was first diagnosed in 2000, approximately
four years after his retirement and the diagnosis is not in dispute. However,
because there were no reported neck injuries and no symptoms of cervical disc
disease during his service, his claim was denied. Essentially, the Board did
not accept that repeated asymptomatic microtrauma caused the Applicant’s
cervical disc disease.
The
Applicant’s Medical Opinions
[6]
Dr.
Winsor, a general practitioner, wrote as follows in his letter of March 25,
2003:
…
In the same manner that Mr. Goldsworthy’s
many years of RCMP service likely contributed to his Lumbar (lower back)
injuries, these same mechanisms – previously identified as altercations in the
line of duty, motor vehicle accidents in the line of duty, watercraft
operation, off road vehicle operation, etc – also contributed to his now
identifiable cervical disc disease. I have elaborated further on the pathology
of these injuries and consequences in my report of 22 January 2003 as
aforementioned.
It is therefore likely that Mr.
Goldsworthy’s RCMP service contributed significantly to his Cervical Disc
Disease. However, the exact extent of these contributions is difficult to
determine and would require the expert opinion of a spinal specialist (either
orthopaedics or neurosurgery for complete clarification).
[My emphasis]
[7]
Dr.
T.G. Hogan, MD, FRCSC is an orthopaedic surgeon. He reviewed the Applicant’s
file and x-rays and said:
…
I understand that the department does not
recognize repetitive non-symptomatic injuries as contributing to cervical disc
disease but I think epidemiological studies would possibly refute this. It would appear that Mr.
Goldsworthy was involved with driving on dirt roads for a number of years,
which results in significant whole body vibration. This is certainly linked
with degenerative disc disease, which leads to subsequent cervical spondylosis.
Apart from this he was involved in number of altercations and I noted a few
motor vehicle accidents. These as well can lead to soft tissue injuries
above the neck that can lead to subsequent cervical spondylosis.
[My emphasis]
The Decision
[8]
Although
the Board believed the Applicant’s account of the potentially disabling events
which occurred during his career, it denied him pension entitlement for
cervical disc disease for three reasons. First, because the Applicant did not
demonstrate that he actually suffered any neck injuries during his service with
the RCMP; second, because Veterans Affairs Canada did not recognize asymptomatic
microtrauma as contributing to cervical disc disease; and third, because the Applicant’s
expert evidence was speculative. The Board said:
Having considered all matters, the Board
concluded not to award pension entitlement for cervical disc disease. The Board
found the testimony and statements of the Applicant credible. However, it had
not been presented with factual evidence as to the extent of the injuries, nor
of their treatments. The Board had not been presented with factual evidence of
any motor vehicle accidents, nor the extent of the material damages. Again, the
Board had not been presented with corroborative evidence of the incidents
testified to.
As there was a lack of documented
clinical evidence to injuries and/or treatments, the medical opinions with
regard to this particular case could only be accepted as speculative based on
history of the neck or cervical difficulties experienced by the Applicant. The
Board noted that the diagnosis of the cervical disc disease was four years
post-service. As a consequence, the Board affirms the Entitlement Review
Decision of 8 December 2004.
The Issues
[9]
The
Applicant’s Memorandum of Fact and Law sets out the issues as follows:
(i)
Whether
the Appeal Board erred in law by discounting uncontradicted credible medical
evidence when it had no inherent medical expertise, and, at the same time, had
the ability to obtain and share independent medical evidence on points which
troubled it.
(ii)
Whether
the Appeal Board erred in law by discounting the Applicant’s evidence of
recollections, which the Appeal Board found credible, with respect to a significant
variety of micro trauma, stresses and strains, arising from the performance of
police duties throughout 28 years of service.
(iii)
Whether
the Appeal Board erred in law by failing to apply Section 39 of the Veterans
Review and Appeal Board Act after finding that the testimony and statements of
the Applicant were credible.
The Standard
of Review
[10]
Although
the Applicant characterizes all the issues as errors of law, it is my view that
issue (ii), which involves the Board’s appreciation and assessment of the evidence,
is a fact-driven matter that should be reviewed on a reasonableness standard.
Issues (i) and (iii) involve questions that are mixed questions of law and
fact. Issue (i) really asks whether, in the circumstances of this case, the
Board was obliged under section 38(1) of the Act to seek its own medical
opinion and issue (iii) addresses whether section 39 of the Act was properly
applied given the Board’s finding that the Applicant’s evidence was credible.
In my view, because the legal aspects of these questions arise under the Act
and are not matters that go to the heart of the administration of justice, it
is appropriate to review these issues on a reasonableness standard (see Dunsmuir
v. New
Brunswick,
2008 SCC 9 at para. 60).
[11]
The
Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the Act), includes
a privative clause (s. 31) which states that the Board’s decisions are final
and binding. This fact also suggests a review based on reasonableness.
[12]
In
Wannamaker v. Canada (A.G.), 2007 FCA 126, the Federal Court of Appeal
concluded, at paragraphs 12 and 13, that mixed questions of fact and law
including:
i)
whether
a particular injury arose out of service
ii)
whether
section 39 of the Act was properly applied
iii)
whether
the credibility of evidence was properly assessed
were to be reviewed on a standard of
reasonableness.
[13]
The
Court of Appeal also concluded that patent unreasonableness applied to a review
of the Board’s determination about whether there was a causal connection
between an injury and a disability. However, since in Dunsmuir the
Supreme Court of Canada eliminated patent unreasonableness as a standard of
review, it is my view that causality is now subject to review
on a reasonableness standard.
[14]
Based
on the Federal Court of Appeal’s analysis in Wannamaker, the existence
of the privative clause and my interpretation of Dunsmuir, I am
satisfied that the Board’s Decision with regard to all the issues is to be
reviewed on a reasonableness standard.
Discussion
[15]
The
Applicant failed to establish that he suffered asymptomatic and therefore
unreported microtrauma to his neck during the altercations, accidents and
driving assignments he undertook during his years of service. Further, even assuming
that microtrauma to his neck had occurred, he failed to provide a convincing causal
link between it and his cervical disc disease. His own medical reports
indicated that although causation was “likely” (Dr. Winsor) and “certain” (Dr.
Hogan), supporting expert opinions and epidemiological studies were not
available.
[16]
The
Applicant says that Dr. Hogan’s evidence was credible and uncontradicted.
The Board found that his conclusion was speculative. In my view, the
Board reached that conclusion because, as Dr. Hogan acknowledged, no studies
had been completed which supported his conclusion. His conclusion may well be
correct and, in future, claims for cervical disc disease caused by microtrauma
may be allowed. However, in the absence of research studies demonstrating the causal
link, the Board’s decision was reasonable.
[17]
The
Applicant says that he was not given the benefit of the provision of s. 39 of
the Act. It states:
|
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.
|
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.
|
[18]
However,
in Wannamaker at paragraph 5, the Court of Appeal stated:
Section
39 ensures that the evidence in support of a pension application is considered
in the best light possible. However, section 39 does not relieve the pension
applicant of the burden of proving on a balance of probabilities the facts
required to establish entitlement to a pension: Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (F.C.T.D.), Cundell
v. Canada (Attorney General) (2000), 180 F.T.R. 193 (F.C.T.D.).
[19]
In
my view, this statement disposes of the Applicant’s third issue. Section 39
applies to the Board’s assessment of the evidence. It does not allow the Board
to proceed in an evidentiary vacuum of the sort present in this case.
[20]
Lastly,
in the circumstances of this case, I can find no obligation on the Board under
section 38 of the Act to obtain further information on microtrauma and cervical
disc disease. As Mr. Justice Michael Kelen noted in Cramb v. Canada (Attorney General), 2006 FC 638, 292
F.T.R. 306, at para. 31, the language of section 38 of the Act is permissive
not mandatory. It reads as follows:
|
38. (1) The Board may obtain independent medical advice for
the purposes of any proceeding under this Act and may require an applicant or
appellant to undergo any medical examination that the Board may direct.
(2) Before accepting as evidence any medical advice or
report on an examination obtained pursuant to subsection (1), the Board shall
notify the applicant or appellant of its intention to do so and give them an
opportunity to present argument on the issue.
|
38. (1) Pour
toute demande de révision ou tout appel interjeté devant lui, le Tribunal
peut requérir l’avis d’un expert médical indépendant et soumettre le
demandeur ou l’appelant à des examens médicaux spécifiques.
(2)
Avant de recevoir en preuve l’avis ou les rapports d’examens obtenus en vertu
du paragraphe (1), il informe le demandeur ou l’appelant, selon le cas, de
son intention et lui accorde la possibilité de faire valoir ses arguments.
|
[21]
In
my view, the main medical problem in this case was not an absence of medical
opinion, but an absence of appropriate studies to support those opinions. This
problem could not be solved by the Board under section 38.
Conclusion
[22]
For
all these reasons, it is my conclusion that the Board’s decision was
reasonable.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application is hereby
dismissed without costs as they were waived by counsel for the Respondent.
“Sandra
J. Simpson”
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