Date: 20130307
Docket: T-456-12
Citation:
2013 FC 240
Ottawa, Ontario, March 7, 2013
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
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LAURENTIUS WERRING
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
AND VETERANS APPEAL AND REVIEW
BOARD OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Laurentius
Werring [the Applicant] has applied for judicial review of a decision of the
Veterans Review and Appeal Board [the Board], dated January 17, 2012 [the
Decision], wherein the Board refused to increase his disability award pursuant
to s. 46 of the Canadian Forces Members and Veterans Re-establishment and
Compensation Act, SC 2005, c 21 [the Act].
[2]
The
Applicant served in the Canadian Forces from 1974 to 1995. In 2003 and 2004, he
was awarded disability benefits under the Pension Act, RSC 1985, c P-6 for
Legg Perthes Disease with osteoarthritis of both hips and the left knee [the
Pensioned Conditions]. The award meant that the Department of Veterans Affairs
[Veterans Affairs] recognized the aggravating effect that military service had
had on the Applicant’s Legg Perthes disease.
[3]
The
years following the Applicant’s release from the Canadian Forces were marked by
physical inactivity, which the Applicant alleges was caused by his Pensioned
Condition and the deterioration of his physical abilities. The Applicant
suffered a heart attack in 2002. Thereafter, he underwent a right hip
replacement in the hope of improving his mobility. In 2008, he applied to
Veterans Affairs for a disability award for various conditions, including
coronary artery disease, a hiatus hernia and hypertension. This application
was made pursuant to s. 46 of the Act [the Section 46 Claim]. It applies to
conditions that arise out of or are directly connected to military service. The
Applicant claimed that the Pensioned Conditions required him to lead a
sedentary lifestyle which had a debilitating effect on his health and caused
the conditions covered by the Section 46 Claim.
[4]
Veterans
Affairs refused the Section 46 Claim in its entirety. The
Applicant appealed to the Entitlement Review Panel of the Veterans Review and
Appeal Board [the Review Panel], but only with respect to coronary
artery disease and hypertension [the Claim and the Claimed Conditions]. The
Review Panel decided that the Applicant was entitled to a disability award in
the amount of one-fifth for coronary artery disease and denied the Claim for
hypertension. The Applicant appealed this outcome to the Board, which rendered
the Decision under review.
[5]
By
the time the Claim reached the Board, the Applicant’s medical evidence
consisted of two letters from Dr. Marino Labinaz. He is a cardiologist
and a director of the Cardiac Catheterization Laboratory and the Cardiac
Fellowship Program at the University of Ottawa Heart Institute. He is also a
professor of medicine at the University of Ottawa. Dr. Labinaz’ first
letter was dated October 7, 2010 and followed his examination of the Applicant.
It described the Applicant’s general condition, noting that he had difficulty
walking or standing for long periods of time. It also reported the Applicant’s
statement that, due to his arthritis, he was unable to exercise to any great
extent. Dr. Labinaz then provided his view about the connection between
physical activity and coronary problems, stating that physical inactivity is an
independent risk factor for coronary artery disease. This analysis led Dr.
Labinaz to conclude that the Applicant’s Pensioned Conditions, by impeding
physical activity, “seriously aggravated” his coronary artery disease. The
letter did not address hypertension.
[6]
The
second letter from Dr. Labinaz, dated March 11, 2011, was a critical
response to the Review Panel’s decision. The letter addressed the causal links
between an inability to exercise and the Applicant’s development of
hypertension, excessive weight and coronary artery disease. The letter
concluded that the Pensioned Conditions had a major, if not a severe impact on the
Claimed Conditions. Together these letters will be described as the “Opinion”.
The Decision
[7]
The
Board’s brief reasons show its concern with the Applicant’s assertion that the
Pensioned Conditions meant that he was unable to exercise or take other steps
to prevent the onset of the Claimed Conditions. The Board said that it had not
been provided with any evidence to indicate that the Applicant was unable to exercise
due to the Pensioned Conditions. Turning to the Opinion, the Board found that it
was not “credible” because it did not address the possibility of dietary control
or consider whether an exercise program could be developed for and undertaken by
the Applicant. The Board also noted that the Opinion did not contain a valid
and complete a medical history of the Applicant and said that such a history
was an essential component of a valid medical opinion.
[8]
The
Board held that it could not reasonably infer from the evidence that a
disability entitlement was warranted in the Applicant’s case. Although the
Board concluded that the Applicant failed to prove the facts required to
establish entitlement to a disability award for either of the Claimed
Conditions, it nevertheless decided not to reverse the Review Panel’s decision
to grant an award of one-fifth for coronary artery disease.
The Parties’ Positions
[9]
The
Applicant takes issue with the Board’s conclusions about the “credibility” of
Dr. Labinaz’ opinion. He submits that the Board erred either because it
failed to ask Dr. Labinaz for more information or because it failed to seek a
second opinion.
[10]
On
the other hand, the Respondent submits that it was the Applicant’s burden to
demonstrate his entitlement to benefits under the Act. The Board required proof
of a link between the Pensioned Conditions and the Claimed Conditions, and that
proof should have included evidence of the Applicant’s inability to exercise.
With no evidence on that subject, the Board could not possibly have concluded that
the Claimed Conditions arose from or were aggravated by the Applicant’s
military service.
The Standard of
Review
[11]
The
standard of review is not in dispute. The Board’s weighing of the evidence and
interpretation of its statutory scheme is reviewable on a standard of
reasonableness (Grant v Canada (Veterans Review and Appeal Board), 2006
FC 1456 at para 25; Jarvis v Canada (Attorney General), 2011 FC 944).
Discussion and
Conclusions
[12]
Counsel
for both parties agreed during the oral submissions that to establish his
entitlement to a disability award under the Act for the Claimed Conditions, the
Applicant had to establish the following two causal links with respect to each
of the Claimed Conditions:
Link 1: The
Pensioned Condition rendered the Applicant unable to exercise;
Link 2: The
inability to exercise caused the Claimed Condition.
The success of the Applicant’s
judicial review rests on the reasonableness of the Board’s findings with
respect to the evidence provided by the Applicant to establish these Link.
[13]
The
Board expressed concern about the lack of evidence about Link 1. It noted that
Dr. Labinaz did not address an exercise regime that the Applicant might have
been able to perform and noted that the only evidence related to the
Applicant’s inability to exercise came from Dr. Labinaz, who, in turn, relied
on what he was told by the Applicant. Thus, there was no independent objective
evidence about the extent to which the Applicant’s Pensioned Condition left him
incapable of performing any type of exercise.
[14]
In
my view, Link 1 could only be established with expert evidence that addressed
the extent of the Applicant’s arthritis and his ability to undertake a
customized exercise programme.
[15]
I
have also concluded that although s. 38(1) of the VRAB Act provides that the
Board “may” obtain independent medical advice, it is not obliged to do so.
[16]
Before
closing I wish to note that, the Board offered a characterization of
Dr. Labinaz’s evidence that I find problematic. The Board said that it did
not find the Opinion “credible” because it did not address dietary control or
exercise. However, Dr. Labinaz was not asked to address those issues presumably
because they were outside his expertise as a cardiologist. His focus, quite
properly, was on Link 2. In these circumstances the Board should simply have
described his evidence as “insufficient” for its purposes.
[17]
For
all the reasons noted above, the application for judicial review will be
dismissed.
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