Date:
20130502
Docket:
T-1683-12
Citation:
2013FC460
Ottawa, Ontario, May 2, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
|
|
JAMES QUANN
|
|
|
|
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 of Canada dated 8 August 2012, wherein that Board confirmed the
decision of the Entitlement Appeal Panel dated 15 September 2011, and denied
pension entitlement to the Applicant in respect of injury sustained to his left
knee.
[2]
For
the reasons that follow, I find that the Application is allowed. The matter
will be sent back to the Board for redetermination by a different Panel.
[3]
The
Applicant is a veteran of the Canadian Armed Forces. He served twenty-one (21)
years in the navy from March 21, 1984 until February 20, 2005, including three
months of service in early 1991 in the Persian Gulf. He was a Naval
Communications Officer with duties that included significant periods of time at
sea where he was required to climb masts and stairs, sometimes carrying heavy
objects. In addition, the Applicant participated in fitness programmes and
sports approved by the Armed Forces.
[4]
In
1998, while serving with the navy, the Applicant suffered an injury to his
right knee while playing volleyball. This injury required surgery and
rehabilitation. The Applicant receives continuing compensation for this injury.
[5]
The
Applicant is now seeking a disability pension in respect of his left knee. The
Applicant asserts that his left knee began to trouble him since about the time
of the injury to his right knee. There is a “Sick Parade” docket entry dated
November 23, 1998, recording pain in the right knee, as well as the left knee.
[6]
A
record in respect of a medical condition in the Applicant’s left knee is found
in the “Sick Parade” docket dated January 7, 2004, which states, in part:
(Lt) knee discomfort…twisted while playing (with)
kids (+) discomfort, swelling, to (?) base at this time, Type I
. . .
Pain last pm 9/10 this am 7/10, ice/heat applied
constantly throughout night, unable to sleep, taken Advil relief, wt bearing
(?) pain, antibiotics, slowly, knee gave out while walking, once last pm, does
not lock up, etc.
[7]
A
Triage Note in the Applicant’s record, dated January 21, 2005, contains the
following note portions of which cannot be deciphered:
Triage Note:
43 yr old male in c/o left knee pain that over last
10 days has become ↑ more uncomfortable – (…) cc: 43 yr old presents left knee pain x
2-3 months but increased pain x 2 weeks.
(…): Ø (…) of left knee injury or trauma, not
urgently playing a lot of sports. Had meniscus tear a few yrs ago on Rt knee
& scope & states pain feels similar now in Lt knee. Feels pain at the
end of the day from being on it all day. Tried Motrin but to no avail. Pt in
the process of release and forgot to mention knee pain upon medical.
DE: Lt knee – Ø pain on palpation of patella tendon
until Pt extends foot. Slight crepitus noted on (…) - ext & flexion. Ø pain
on palpation of lat & med (…) regions. States pain feels like it’s behind
patella when walking. Equal blat reflexes Lt & Rt leg, equal blat pedal
pulses. Ø radiating pain, Ø swelling lmp: bursitis, Patella removal syndrome?
Lt knee
Plan: Refer to mo
As above – Ø (…) (…) giving way
[8]
In
August 2005, the Applicant’s left knee was operated upon to repair what has
been described as a bucket handle tear of his left lateral meniscus. Dr.
Connelly, the surgeon who performed the operation, made the following Report of
Operation on July 28, 2005:
Operation: Arthroscopy – left knee, left lateral
meniscectomy
Procedure: (July 28, 2005) This man injured his
knee some time ago. He has pain, catching and locking in the knee with
tenderness in the lateral joint line and he was admitted for arthroscopy.
Under general anesthesia and tourniquet control, the
left knee was prepped with Bridine and draped. There was no ligamentous
instability. Stab incision was made above Gerdy’s tubercle. The arthroscope was
introduced. There was an insignificant amount of joint fluid. The knee was
inflated with saline. Suprapatellar pouch was normal. Patellofemoral joint was
essentially normal. The medial compartment showed some grade I-II degeneration
in the medial femoral condyle. The meniscus was intact. The anterior cruciate
was intact. Laterally there was a bucket-handle tear of the lateral meniscus
which was displaced and there was a radial spit in most of the meniscus and a
lot of shredding which precluded any thoughts of surgical repair. Using the
motorized shaver and hand instruments through an anteromedial and anterolateral
portals, the unstable meniscal cartilage was debrided from the lateral compartment.
The knee was irrigated and drained. The stab incisions were closed with
steri-strips. Sterile compression dressing was applied. On release of the
tourniquet there was good return of blood supply to the foot. There were no
breaks in technique or interoperative complications. Sponge and instrument…
[9]
On
August 25, 2005, Dr. Connelly made a Report of a follow-up inspection:
Mr. Quann was seen following an arthroscopic
debridement and excision of the bucket handle tear of his left lateral meniscus
in his left knee. He still has a fair bit of pain, but he has full range of
motion. He is going to carry on now with his therapy and I will see him again
as necessary. He is more than likely to get arthritis in his knee in the long
term.
[10]
In
applying for disability compensation respecting his left knee, the Applicant
made the following statement as to how the condition of his left knee related
to his military service:
My left knee was injured during my time at sea
including the Persian Gulf. The effect of a moving ship and the constant
travel up and down ladders caused my knees to ache all the time. I also was
involved in numerous sporting activities (organized) such as volleyball,
hockey, baseball, etc. We also had to exercise at sea in order to maintain the
physical condition that was expected of a military member. I spent an average
of 18 hrs a day on my feet when at sea.
[11]
On
May 15, 2007, the Applicant’s general practitioner, Dr. Killeen, wrote a letter
to Veterans Affairs Canada stating:
With reference to your note of April 26, 2007
regarding the above patient, I reviewed the notes which you sent me. I also
reviewed the notes from Dr. Peter Connelly, orthopedical surgeon who did an
arthroscopic debridement of Mr. Quann’s knee on August 24, 2005.
This patient has a history of an injury to his knee
the date of which I am not certain. He had a bucket handle tear of his left
lateral meniscus in his left knee. This was repaired by Dr. Connelly. On
reviewing his history this kind of injury can occur virtually at any time but
is often seen with sports injuries and also seen when climbing up and down
ladders. Usually there is an injury involved and the patient is usually aware
of it and then the tear extends. So it is possible that the injury could have
been caused or aggravated by his duties.
[12]
Dr.
Connelly, the surgeon who performed the operation on the Applicant’s left knee,
wrote to the District Pensions Advocate on September 10, 2008, stating:
Thank you for your letter of
August 18th, 2008 requesting further information on Jamie Quann.
You obviously have the information I have created on him so I will attempt to
answer your questions.
He told me on July 26, 2005 that
his left knee had been painful for two years and was getting worse. There was
no history of injury. It had caused decreased weight-bearing, locking,
clunking, swelling and aching with decreased strength and pain with ladders.
When his bucket tear occurred I have no idea. I apologize for the typographical
errors in the operative report. The lateral meniscus bucket handle tear was
displaced and there was a radial split in most of the meniscus. The severity of
meniscal damage is significant if there is a bucket handle tear although this
can happen with a twisting injury and with squatting of kneeling. The radial
split is just an aggravation of the above. This injury could have occurred at
the time of his serving in the military, particularly at sea. Once the injury
occurred it could certainly be aggravated by physical activities such as
standing on a heaving deck, climbing ladders and squatting.
I hope this is the information
you require.
[13]
On
March 24, 2010, Dr. Connelly wrote to Dr. Killeen, stating:
Jamie was last seen in 2005 when
I scoped his left knee for bucket-handle tear. I received a letter from Susan
E. Ruttan, District Pensions Advocate in Victoria in August 2008 to which I
responded. She addressed the question at the time whether there was some
relationship between his old injury to his right knee and the more recent
injury to the left. There certainly could be a relationship after one is
injured at sea and he does state that his knees were bothering him before he
ever had any surgery on the right.
Both knees are painful at this
time with swelling and giving way on the right. Unfortunately he has not had
any x-rays so I have ordered some today. When I scoped his left knee nearly 5
years ago, there was some early degeneration in the medial compartment. This
probably has advanced since that time and I expect he has more arthritis in his
right knee as well.
There is tenderness in the
lateral joint line of the right knee and in the medial joint line to the left.
There is pain on forced extension and manipulation but no instability. There is
normal neurovascular supply to the legs. Squatting and kneeling are difficult
and there is crepitus and pain with those activities. He has had to give up his
hockey and baseball.
With a history of pain in both
knees before any surgery, his occupation could certainly have led to the
above-noted injuries. There is no way to prove that his symptoms on the left
are compensatory in nature from the damage to the right, but this is a fairly
common finding. The injury to his left knee also occurred during his Service
time, so likely is pensionable as well as the right.
[14]
In
December 2008, the Applicant applied for a pension in relation to
osteoarthritis of his left knee. In June 2010, he also applied for a pension in
relation to osteoarthritis of his left knee as a consequence of service-related
internal derangement of the right knee. On October 16, 2009, Veterans Affairs
Canada denied the first application; and on June 10, 2010, it denied the second
application.
[15]
The
Applicant appealed both decisions to the Entitlement Review Panel which, on
January 5, 2011, affirmed the decisions of Veterans Affairs Canada. The
Applicant appealed this decision to the Entitlement Appeal Panel. That Panel,
on September 15, 2011, affirmed the previous decision of the Review Panel. On
November 25, 2011, the Applicant applied for reconsideration of the Appeal
Panel’s decision to a Reconsideration Panel.
[16]
On
August 10, 2012, the Reconsideration Panel delivered its decision, which upheld
the previous decisions to deny a disability pension in respect of the
Applicant’s left knee. This is the decision at issue.
[17]
The
Reconsideration Panel reviewed the previous decisions and referred, in
particular, to portions of Dr. Killeen’s letter dated 15 May 2007, and Dr.
Connelly’s letter dated 10 September 2010. In respect of those letters, the
Panel wrote:
In evaluating the credibility of medical evidence,
the Panel examines three important factors with the first being the
qualifications of the medical expert. Second, the Panel examines whether or not
the information the expert had access to in arriving at an opinion was
reasonably accurate and complete. Third, the Panel assesses the credibility of
the opinion. The assessment would normally be based on the Panel’s view of
whether or not the expert’s conclusion appears to flow logically from the
facts, whether or not the expert explored all the relevant factors, and whether
or not the opinion could be said to reflect the general medical consensus as
established through scientific study of the relevant condition.
The opinion, which need not be lengthy, will likely
be considered credible if it has three features: the facts or history are
accurate and complete, that it, they are the same facts that are apparent from
the other evidence; the conclusion makes sense in that it flows logically from
the facts; and, the expert provides a reasonable explanation of how he or she
has drawn the conclusion from the facts.
In addition, the opinion, when presented as
evidence, should be accompanied by any correspondence or communication by which
the opinion was elicited.
The Panel will assess the credibility of the two
medical opinions, beginning with that of Dr. Killeen, dated 15 May 2007. The
Panel notes that the opinion, in the form of a brief letter, is in response to
a request from D. hart of the Bureau of Pensions Advocates. In her letter of 26
April 2007, Ms. Hart indicates that she is enclosing personnel records and a
statement of work. She does not indicate that she is enclosing any information
regarding the Appellant’s medical history. Dr. Killeen’s letter indicates that
he reviewed notes sent by Ms. Hart, as well as notes from the Orthopaedic
Surgeon, Dr. Connelly, who did an arthroscopic debridement of the Appellant’s
left knee on 24 August 2005. He states:
….This patient has a history of an injury to his
knee the date of which I am not certain. He had a bucket handle tear of his
left lateral meniscus in his left knee. This was repaired by Dr. Connelly….
Dr. Killeen goes on to say, “it is possible that the
injury could have been caused or aggravated by his duties.”
The Panel does not find Dr. Killeen’s opinion to be
sufficient to sway the benefit of doubt in the Appellant’s favour for the
following reasons:
•
the
Panel does not question Dr. Killeen’s knowledge of the Appellant’s general
condition, but there is no evidence to suggest that he is a specialist in the
field of orthopaedic surgery;
•
Dr.
Killeen did not apparently have access to the Appellant’s complete service
medical history, and so his conclusion of a possible connection to military
service may not be based on all of the facts; and
•
Dr.
Killeen’s opinion raises only the possibility that the claimed condition was
caused or aggravated by military service.
Regarding the 10 September 2008 medical opinion
offered by Dr. Connelly, the Panel acknowledges that he is an Orthopaedic
Surgeon, and therefore fully qualified to offer an opinion on what may have
caused the injury, a bucket-handle tear of the left lateral meniscus of the
left knee. Dr. Connelly states in his brief letter to the District Pensions
Advocate that there is no history of injury. He states that he has no idea when
the tear occurred, although the damage was significant. He states the tear “can
happen with a twisting injury and with squatting and kneeling.” As stated in
the Advocate’s submission, Dr. Connelly offers the opinion that the injury
could have occurred during service, particularly at sea.
The Panel does not find Dr. Connelly’s opinion to be
sufficient to sway the benefit of doubt in the Appellant’s favour for the
following reasons:
•
the
statement that the osteoarthritis left knee is attributable to military service
is not supported by any persuasive analysis or, in other words, it does not
flow logically from the facts; and
•
Dr.
Connelly, like Dr. Killeen, raises only the possibility of a connection between
the claimed condition and military service.
Finally, taken as a whole, the evidence does not
establish that the cumulative joint trauma criteria contained in the
Entitlement Eligibility Guidelines were met. As stated in the Review Panel’s
decision, the evidence does not establish that, in the course of the
Appellant’s fitness activities and normal duties on ship and while ashore,
there was sufficient cumulative joint trauma to meet the guidelines.
The Panel confirms the decision of the Entitlement
Appeal Panel decision dated 15 September 2011 and denies pension entitlement.
[18]
The
Panel made no reference to the “Sick Parade” entries, nor to the Appellant’s
statement made in his application for disability, nor to Dr. Connelly’s two
reports, nor his letter of March 24, 2010, nor to the Sick Parade reports and
Triage Report.
AGREED AND
UNCONTESTED FACTS
[19]
From
the memorandum of argument filed by the parties and the submissions of Counsel
at the hearing, the following facts are, I determine, not in dispute:
•
The
Applicant served with the Canadian Armed Forces from March 21, 1984 until
February 20, 1985;
•
the
Applicant served in the navy, spending a substantial period at sea, where he
was required to climb stairs and masts, sometimes carrying loads;
•
the
Applicant sustained an injury to his right knee in 1999, for which he is being
compensated;
•
in
late 2004, outside the scope of his military duties, the Applicant injured his
left knee while playing “with kids”;
•
the
Applicant’s left knee was operated upon in July 2005, after he had left the
Armed Forces; and
•
the
Applicant suffers osteoarthritis in his left knee and will do so for the rest
of his life.
ISSUES
[20]
The
Applicant states that there are three issues; the Respondent states that there
are only two - the first two below. The three issues are:
1.
What
is the appropriate standard of review?
2.
Was
the decision of August 10, 2012 wrong having regard to the appropriate standard
of review?
3.
Did
the Panel assess the evidence properly having regard to section 39 of the Veterans
Review and Appeal Board Act?
1. What
is the appropriate standard of review?
[21]
Both
parties agree that the standard of review is reasonableness. However, where the
Board has made an error of law, the standard must be correctness.
- Was the decision of August
10, 2012 wrong having regard to the appropriate standard of review?
[22]
The
question to be answered is simple:
Was
the injury to the Applicant’s left knee caused by or aggravated by his duties
while with the Armed Forces, in which case, he should be compensated; or was it
caused by his activity outside the scope of his duties; namely, while playing
“with kids”, in which case it is not compensable.
[23]
The
evidence in this regard consists of:
•
Sick
Parade and Triage reports in the 1998 – 1999 period, in which pain and swelling
to the left knee is reported;
•
the
letter of the Applicant’s General Practitioner, Dr. Killeen, which states:
“It
is possible that the injury could have been caused by or aggravated by his
duties”
•
the
September 10, 2008 letter of the operating surgeon, Dr. Connelly, which
states, inter alia:
“He
told me on July 26, 2005 that his left knee had been painful for two years and
was getting worse. There was no history of injury. … The injury could have
occurred at the time of his serving in the military, particularly at sea. Once
the injury occurred, it could certainly be aggravated by
physical activities such as standing on a heaving deck, climbing ladders, and
squatting.”
•
The
March 24, 2010 letter from Dr. Connelly stating, inter alia:
“With a
history of pain in both knees before any surgery, his occupation could
certainly have led to the above-noted injuries. There is no way to prove that
his symptoms on the left are compensatory in nature from the damage to the right,
but this is a fairly common finding.”
[24]
There
is no evidence which challenges the opinions of Dr. Killeen or Dr. Connelly.
The Armed Forces could have examined the Applicant’s knee, and his medical
records. They did not. In other words, the opinions of Drs. Killeen and
Connelly are uncontradicted.
[25]
What
are those opinions? Dr. Killeen says that it is “possible that the
injury could have been caused or aggravated by his duties”. Dr. Connelly
says that “his occupation could certainly have led” to the Applicant’s
injuries. Neither opinion is positive in saying that the Applicant’s occupation
did lead to the injury; only that it could or possibly could have
led to the injury.
[26]
Turning
to what the Board said about this evidence, it treated the evidence as a matter
of “credibility”. Its opinion starts at page 9 by saying:
“In
evaluating the credibility of medical evidence…”
and
later on page 9:
“The
Panel will assess the credibility of the two medical opinions.”
[27]
At
page 10, the Board says in respect of the evidence of Drs. Killeen and Connelly
that it is not:
“…sufficient
to sway the benefit of doubt.”
[28]
The
Board has confused credibility with sufficiency. Credibility is whether the
evidence is to be believed. Dr. Black’s Law Dictionary , 8th ed,
says:
“Credibility,
n. The quality that makes something (as a witness or some evidence) worthy of
belief.”
[29]
There
is nothing in the record that would lead a Court, or should have led the Board,
to doubt the credibility of Dr. Killeen or Dr. Connelly. They are to be
believed when they say that the injury could have been or possibly was
caused by his military service.
[30]
The
question is whether their opinions that it was “possible” that the
injury “could have” been caused or aggravated during the Applicant’s
period of service sufficient to sustain a claim for compensation.
[31]
In
an ordinary Court of law, that Court would have concluded that this evidence,
while credible, was insufficient to sustain a claim. However, the circumstances
here are changed by the provisions of the Veterans Review and Appeal Board
Act, S.C. 1995, c. 18. In particular, I refer to sections 3 and 39 (a), (b)
and (c):
|
3.
The provisions of this Act and of any other Act of Parliament or of any
regulations made under this or any other Act of Parliament conferring or
imposing jurisdiction, powers, duties or functions on the Board shall be
liberally construed and interpreted to the end that the recognized obligation
of the people and Government of Canada to those who have served their country
so well and to their dependants may be fulfilled.
. . .
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.
|
3.
Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que
de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent
des pouvoirs et fonctions doivent s’interpréter de façon large, compte tenu
des obligations que le peuple et le gouvernement du Canada reconnaissent
avoir à l’égard de ceux qui ont si bien servi leur pays et des personnes à
leur charge.
. . .
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.
|
[32]
The
Federal Court of Appeal in Wannamaker v Canada (Attorney General), 2007
FCA 126 provided instruction as to how section 39 was to be applied in
assessing such evidence. Sharlow JA (for the Court) wrote at paragraphs 5 and
6:
5 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).
6 Nor does section 39 require the Board to
accept all evidence presented by the applicant. The Board is not obliged to
accept evidence presented by the applicant if the Board finds that evidence not
to be credible, even if the evidence is not contradicted, although the Board
may be obliged to explain why it finds evidence not to be credible: MacDonald
v. Canada (Attorney General) (1999), 164 F.T.R. 42 at paragraphs 22 and 29.
Evidence is credible if it is plausible, reliable and logically capable of
proving the fact it is intended to prove.
[33]
Thus,
while discussing the obligation to consider whether evidence is credible, the
Court instructs the Board that evidence is credible if it is plausible,
reliable and logically capable of proving the fact it is intended to prove. The
issue then becomes whether it is sufficient.
[34]
Here,
the question is whether the injury to the Applicant’s left knee was caused by
or aggravated during his military service. The evidence is that it is possible
that it could have been. Is that sufficient?
[35]
Justice
Bedard of this Court recently decided the case of Leroux v Canada (Attorney General), 2012 FC 869, where she discussed the burden of proof in
cases such as this. She wrote at paragraph 48:
48 There was no challenge that the burden of
proof is on the applicant. The case law of this Court has established that to
meet his burden, the applicant was to show that the military service was the
main cause of his injury or disease and he was to establish this causal link.
(King v Canada (Veterans Review and Appeal Board), 2001 FCT 535 at para 65, 205
FTR 204 [King]; Leclerc v Canada (Attorney General) (1996), 126 FTR 94 at paras
18-21, 70 A.C.W.S. (3d) 916 (FCTD); Boisvert, supra at para 26).
[36]
In
that case, she had very positive evidence from the Applicant’s orthopaedic
surgeon. At paragraph 60 she wrote:
60. Moreover, Dr. Leroux issued an unequivocal
opinion about the causal link between the applicant’s condition and the duties
he performed. He indicated that repetitive strain would have aggravated the
applicant’s two conditions.
[37]
Instead
of “would”, we have in the present case, “could”. Thus, I must turn to the
third issue.
3. Did the
Panel assess the evidence properly having regard to section 39 of the Veterans
Review and Appeal Board Act?
[38]
Section
39 of the Veterans Review and Appeal Board Act has been set out in full
earlier in these Reasons. In brief, it requires the Board to:
a)
draw
all reasonable inferences in favour of the applicant;
b)
accept
any uncontradicted evidence that it considers to be credible; and
c)
resolve
any doubt, in favour of the applicant, in verifying the evidence.
[39]
In
the present case, there is no reason to doubt the credibility of the evidence
of Dr. Killeen or Dr. Connelly. Each stated the basis for their opinions, each
were careful in stating that the injury “could” “possibly” have been
caused by or aggravated by the Applicant’s military service.
[40]
There
is, therefore, an element of doubt. Given the lack of any evidence to the contrary,
and given that the Armed Forces chose not to examine the Applicant or bring
forward any evidence of their own, subsection 39 (c) of the Act requires
that such doubt must be resolved in favour of the Applicant.
[41]
The
Board’s decision was not reasonable in that it resolved the doubt against the
Applicant instead of in favour of the Applicant. The matter must be sent back
for redetermination by a different Panel.
[42]
The
Applicant has asked for costs to cover disbursements, estimated at $500.00,
which I will award.
JUDGMENT
FOR
THE REASONS PROVIDED:
THIS
COURT’S JUDGMENT is that:
1.
The
application is allowed;
2.
The
matter is returned for redetermination by a differently constituted Panel; and
3.
The
Applicant is entitled to costs in the sum of $500.00.
"Roger T.
Hughes"
Email this Content