Date:
20130409
Docket:
T-926-12
Citation:
2013 FC 354
Ottawa, Ontario,
April 9, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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KIMBERLY NEWMAN
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms
Kimberly Newman served in the Canadian Forces for 25 years, rising through the
ranks to become a Captain in the Air Force. She took on numerous difficult
challenges and performed admirably. Throughout much of her military career, she
silently endured the stresses of her job while seeking out help from time to
time from military health care providers for the mental health challenges she
faced.
[2]
After
her retirement in 2009, Ms Newman applied for disability benefits under s 45 of
the Canadian Forces Members and Veterans Re-establishment and Compensation
Act, SC 2005, c 21 [CFMVRCA] (see Annex for provisions cited), having been
diagnosed as experiencing chronic dysthymia (depression). She was initially
turned down by Veterans Affairs Canada but, ultimately, an appeal panel of the
Veterans Review and Appeal Board was satisfied that Ms Newman was entitled to a
one-fifth disability pension.
[3]
Ms
Newman asked the appeal panel to reconsider its conclusion, suggesting that it
had made both an error of fact and an error of law. She also attempted to
tender new evidence before the panel. The appeal panel rejected her request,
finding that its earlier conclusion was not erroneous and rejecting the
putative new evidence.
[4]
Ms
Newman now asks the Court to quash the appeal panel’s decision on her request
for reconsideration. She argues that the appeal panel erred by finding that her
mental health issues prior to enrolment in the military had played a major role
in her subsequent depression. She also maintains that the appeal panel failed
to apply the proper legal principles to her claim – namely, that she should be
presumed not to have had a pre-enrolment condition (citing s 51 of the Canadian
Forces and Veterans Re-establishment and Compensation Regulations,
SOR/2006-50 [the Regulations]).
[5]
In
my view, the appeal panel made no reviewable errors of fact or law. It
reasonably concluded that Ms Newman’s pre-enrolment experiences showed that her
mental health issues began before she became a member of the Canadian Forces
and that they were aggravated to some extent while she was in the military. In
addition, the appeal panel applied the applicable legal principles properly. Ms
Newman does not challenge the appeal panel’s treatment of the alleged new
evidence, so I need not address that aspect of its decision.
[6]
Accordingly,
the issues that arise on this judicial review are:
1. Did
the appeal panel make an unreasonable error of fact about Ms Newman’s
pre-enrolment experiences?
2. Did the
appeal panel apply the wrong legal principles?
II. The Appeal Panel’s
Decision
[7]
Ms
Newman asked the appeal panel to reconsider its decision primarily on two
grounds.
[8]
First,
she disputed the appeal panel’s finding that she experienced pre-enrolment depression.
The panel noted that there was evidence of episodes of depression prior to her
enrolment in the military.
[9]
Second,
she suggested that the appeal panel had erred in law by finding that her
condition existed prior to her enrolment without regard to s 51 of the
Regulations. That provision creates a presumption that a person was in the
medical condition noted in his or her enrolment medical examination unless
there is evidence showing that a disability was diagnosed within three months
of enrolment, or medical evidence establishes beyond a reasonable doubt that
the disability existed before enrolment.
[10]
The
appeal panel responded to Ms Newman’s request by noting that it had made no
error of fact given that she had acknowledged having episodes of depression
prior to her enrolment. Further, the appeal panel agreed that Ms Newman was
presumed fit upon her enrolment. However, it found that pre-enrolment factors
contributed to the symptoms that manifested themselves later during her
military service. Accordingly, it concluded that Ms Newman had failed to
demonstrate any errors of fact or law.
III. Issue
One – Did the appeal panel make an unreasonable error of fact about Ms Newman’s
pre-enrolment experiences?
[11]
Ms
Newman argues that the main cause of her mental health issues was her
employment in the military. The evidence shows that she was consistently
expected to deal with high levels of stress and anxiety, beyond her
qualifications. Medical professionals concluded that workplace demands likely
contributed to her symptoms. Further, for many years of services she had to
deal with the fact that she had to keep her sexual orientation a secret.
[12]
However,
there is little evidence that Ms Newman’s work experience alone caused her
condition. The medical evidence, which is considerable, pointed to a number of
contributing factors – pre-existing depression, family history, personality
traits, and workplace stress. The appeal panel acknowledged the aggravating
role of work-related stress, and found that it accounted for one-fifth of Ms
Newman’s disability.
[13]
Given
that the appeal panel’s conclusion was supported by the medical evidence, I
cannot conclude that it made an error of fact.
IV. Issue Two – Did the
appeal panel apply the wrong legal principles?
[14]
Ms
Newman argues that the presumption of fitness set out in s 51 of the
Regulations can only be rebutted where a disability is diagnosed within three
months of enrolment or there is medical evidence establishing a pre-existing
condition beyond a reasonable doubt. In the absence of either of those
circumstances, Ms Newman contends that the appeal panel was bound to conclude
that she had no pre-enrolment disability.
[15]
I
disagree.
[16]
Ms
Newman benefited from the presumption that she was not experiencing chronic
dysthymia at the time of her enrolment. However, that presumption did not
prevent the appeal panel from reviewing the evidence, both pre- and
post-enrolment, in determining Ms Newman’s entitlement to a disability award.
Indeed, the panel had to consider the degree to which her condition has been
caused or aggravated by her military service (CFMVRCA, ss 45(1), (2)). It
concluded that one-fifth of her disability was the product of aggravating
circumstances during her service. That conclusion necessarily had to take into
account the evidence relating to her pre-existing depression and any
pre-enrolment factors that caused or contributed to her condition.
[17]
Therefore,
I see no error of law arising from the appeal panel’s decision.
V. Conclusion and
Disposition
[18]
The
panel made no error of fact or law in its response to Ms Newman’s request for
reconsideration. Therefore, I must dismiss this application for judicial
review, with costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed with costs.
“James W. O’Reilly”
Annex
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Canadian
Forces Members and Veterans Re-establishment and Compensation Act, SC 2005, c 21
Eligibility
45.
(1) The Minister may, on application, pay a disability award to a member or a
veteran who establishes that they are suffering from a disability resulting
from
(a)
a service-related injury or disease; or
(b)
a non-service-related injury or disease that was aggravated by service.
Compensable
fraction
(2) A
disability award may be paid under paragraph (1)(b) only in respect of that
fraction of a disability, measured in fifths, that represents the extent to
which the injury or disease was aggravated by service.
Canadian
Forces Members and Veterans Re-establishment and Compensation Regulations, SOR/2006-50
51.
Subject to section 52, if an application for a disability award is in respect
of a disability or disabling condition of a member or veteran that was not
obvious at the time they became a member of the forces and was not recorded
on their medical examination prior to enrolment, the member or veteran is
presumed to have been in the medical condition found on their enrolment
medical examination unless there is
(a)
recorded evidence that the disability or disabling condition was diagnosed
within three months after enrolment; or
(b)
medical evidence that establishes beyond a reasonable doubt that the
disability or disabling condition existed prior to enrolment.
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Loi sur les mesures de
réinsertion et d’indemnisation des militaires et vétérans des Forces
canadiennes,
LC 2005, ch 21
Admissibilité
45. (1) Le ministre peut, sur
demande, verser une indemnité d’invalidité au militaire ou vétéran qui
démontre qu’il souffre d’une invalidité causée :
a) soit par une blessure ou
maladie liée au service;
b) soit par une blessure ou
maladie non liée au service dont l’aggravation est due au service.
Fraction
(2) Pour l’application de
l’alinéa (1)b), seule la fraction — calculée en cinquièmes — du degré
d’invalidité qui représente l’aggravation due au service donne droit à une
indemnité d’invalidité.
Règlement sur les mesures de
réinsertion et d’indemnisation des militaires et vétérans des Forces
canadiennes,
DORS/2006-50
51. Sous réserve de
l’article 52, lorsque l’invalidité ou l’affection entraînant l’incapacité du
militaire ou du vétéran pour laquelle une demande d’indemnité a été présentée
n’était pas évidente au moment où il est devenu militaire et n’a pas été
consignée lors d’un examen médical avant l’enrôlement, l’état de santé du
militaire ou du vétéran est présumé avoir été celui qui a été constaté lors
de l’examen médical, sauf dans les cas suivants :
a) il a été consigné une preuve
que l’invalidité ou l’affection entraînant l’incapacité a été diagnostiquée
dans les trois mois qui ont suivi l’enrôlement;
b) il est établi par une preuve
médicale, hors de tout doute raisonnable, que l’invalidité ou l’affection
entraînant l’incapacité existait avant l’enrôlement.
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