Docket: T-1613-13
Citation:
2014 FC 1130
Ottawa, Ontario, November 25, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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FRANCIS STEVENSON
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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
[1]
The Veterans Review and Appeal Board’s (the
Board) reconsideration panel upheld the appeal panel’s decision which refused
to reconsider its earlier decision to reject the applicant’s claim for a
disability pension. The applica`nt now applies for judicial review pursuant to
subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7.
[2]
The applicant asks the Court to set aside the
Board’s decision and refer the matter back for redetermination by a different
panel. The applicant also seeks costs.
I.
Background
[3]
The applicant was a member of the Royal Canadian
Mounted Police [RCMP] from 1972 to 2009.
[4]
He was diagnosed with hypertension in 1998 and
with coronary artery disease (a type of arteriosclerotic heart disease) in
2000. He believes stress from his work was partially responsible for both
conditions.
[5]
Therefore, he applied in 2001 for a disability
pension in accordance with subsection 32(1) of the Royal Canadian Mounted
Police Superannuation Act, RSC 1985, R-11 [RCMP Superannuation Act] and
subsection 21(2) of the Pension Act, RSC 1985, c P-6. On September 17,
2001, the applicant’s request was denied because no service connection was
established, though he was awarded a modest amount for other unrelated
injuries.
[6]
In May 2009, the applicant requested a
departmental review of that decision pursuant to subsection 82(1) of the Pension
Act. On September 14, 2009, it too was rejected for the same reasons.
[7]
He next sought review from the Board pursuant to
section 84 of the Pension Act and section 18 of the Veterans Review
and Appeal Board Act, SC 1995, c 18. An entitlement review panel confirmed
the Minister’s decision.
II.
Appeal Panel Decision
[8]
The applicant appealed to another panel of the Board,
but was again rejected by a decision dated April 20, 2011.
[9]
The panel began by acknowledging that the
applicant had claimed that the administrative position he took in 1995 had
caused him a lot of stress and led to an unhealthy lifestyle. The applicant’s
claim was supported by his family physician, Dr. Dattani, who concluded that
stress contributed to his heart problems. As well, other RCMP members sent
letters that emphasized how stressful the applicant’s job was.
[10]
However, the panel also consulted departmental
guidelines, the Merck Manual of Diagnosis and Therapy (18th edition) [Merck
Manual], and Harrison’s Principles of Internal Medicine (18th
edition) [Harrison’s] on arteriosclerosis and hypertension. According
to those, the most common risk factors for arteriosclerosis are hypertension,
diabetes, hyperlipidemia, a family history of heart disease, age, physical
inactivity, high cholesterol, male gender and cigarette smoking.
[11]
With that in mind, the Board analyzed the
applicant’s claim. It appreciated that the applicant’s work was demanding, but
it did not consider his burden unusual. Indeed, the only contemporaneous
evidence suggested his stress was well-managed. In periodic health assessments
completed in 1995, 1997 and 1999, the applicant had reported that he considered
himself in good emotional health. He said that he was happy with his job, did
not feel nervous or tense in some situations and that he had not felt angry or
frustrated recently. Although the applicant now said he simply did not report
his stress to avoid jeopardizing his career prospects, none of the medical
professionals he visited during that time had recorded that chronic stress was
a risk factor. This left the Board without any objective evidence from which it
could infer the applicant had suffered prolonged and exceptional stress.
[12]
Even if that were not the case, the Board found
there was no medical relationship between stress and coronary artery disease. Moreover,
the applicant possessed many of the other risk factors. He had been diagnosed
with hyperlipidimia in 1991. He also had high blood pressure when he visited
his doctor in 1994 for chest pain. At that time, Dr. Dattani also recorded a
cardiac family history and a chest spasm. By the time he was diagnosed with
coronary artery disease in 2000, his cardiologist, Dr. Zimmermann, reported that
the applicant’s risk factors were hypertension, hypercholesterolemia and a
positive family history of cardiac disease. He was also male and obese: his
body mass index (BMI) was 31.5 in 1995 and 1997 and had increased to 33.6 by
1999.
[13]
Although Dr. Dattani declared that stress did
affect the applicant’s medical problems and supported that with a few studies,
the Board found that his opinion was not sufficiently credible. Specifically,
it preferred the contemporaneous medical records about the applicant’s lack of
stress to the retrospective opinion of Dr. Dattani. It also noted that Dr.
Dattani was not a specialist and that his opinion was contradicted by
authoritative textbooks like the Merck Manual and Harrison’s. It
considered those to be better evidence of the current medical consensus than
the small selection of articles submitted by Dr. Dattani. The studies showing a
link did not use an acceptable methodology and concerned people with different
characteristics than the applicant.
[14]
The Board also distinguished this case from Rivard
v Canada (Attorney General), 2001 FCT 704, 209 FTR 43 [Rivard]. In
that case, a decision was set aside because the Board had rejected
uncontradicted medical evidence that an applicant’s coronary disease was
connected to a chronic anxiety disorder for which he had already been
pensioned. However, the Board said it did not apply for two reasons: (1) the
applicant does not have chronic anxiety disorder; and (2) there is
contradicting medical evidence in this case from the textbooks.
[15]
As for hypertension, risk factors did include
prolonged and exceptional stress, along with obesity, alcohol dependency, salt
intake, smoking and inactivity. For this, however, the lack of any
contemporaneous evidence documenting the applicant’s stress was fatal and the Board
rejected the non-expert evidence that opined that the applicant was stressed.
[16]
As a result, the applicant had not produced any
reliable evidence that could leave the Board with any doubt it could resolve in
the applicant’s favour.
III.
Reconsideration Decision
[17]
The applicant thereafter asked the Board to
reconsider its decision pursuant to subsection 32(1) of the Veterans Review
and Appeal Board Act. In his view, the Board had erred in law by applying
the wrong test and by failing to accept Dr. Dattani’s evidence and his own
uncontradicted testimony about why he did not report his stress. As well, Dr.
Dattani had recently received an award for a study about controlling high blood
pressure and the applicant wished to submit an article about that as new
evidence.
[18]
On August 22, 2013, the Board refused to
reconsider its decision for four reasons.
[19]
First, the Board decided not to admit the new
evidence by applying the four-part test from Palmer v The Queen (1979),
[1980] 1 S.C.R. 759 at 775, 106 DLR (3d) 212 [Palmer]. The study for which
Dr. Dattani was honoured was completed in 2003 and evidence of it was submitted
to the entitlement review panel. It could have been submitted on appeal as
well. The fact that Dr. Dattani had assisted with the administration and
information-gathering phase of some drug studies for pharmaceutical companies
treating people with hypertension, did not make him an expert in cardiovascular
conditions. As such, the Board held that the evidence was neither truly new nor
relevant and could not affect the outcome of the appeal.
[20]
Second, the Board did not think it applied the
wrong test. Rather, it applied the test in subsection 21(2) of the Pension
Act, which requires a causal connection between the applicant’s service and
his disease. However stressful the applicant’s work was, there was no
contemporaneous evidence that it affected his health and his cardiologist did
not consider it a risk factor.
[21]
Third, the Board said it had considered Dr.
Dattani’s evidence carefully and gave clear reasons for its credibility
findings.
[22]
Fourth, the Board considered again the
applicant’s explanation for not reporting his stress and still preferred the
contemporaneous evidence to his post-service recollections. Besides, the RCMP
holds periodic medical examinations precisely so it can catch problems and
treat them as soon as possible. That could not happen if the applicant actually
had refused to divulge health issues of which he was aware. The applicant did
not report stress to Dr. Dattani or any other physician outside the RCMP
either.
[23]
As such, the Board confirmed that there was no
credible evidence from which it could draw any reasonable inference in the
applicant’s favour.
[24]
The applicant now asks this Court to review that
decision.
IV.
Issues
[25]
The applicant raises three issues:
1.
What is the appropriate standard of review?
2.
Did the Appeal Panel err in finding that the applicant’s
hypertension and arteriosclerosis did not arise out of or were directly
connected with the applicant’s service in the RCMP?
3.
Did the Board assess the evidence as required
pursuant to section 39 of the Veterans Review and Appeal Board Act?
[26]
The respondent combines the second and third
issue into one: “[w]hether the [Board’s] decision not to
reopen the Appeal Panel’s decision was reasonable?”
[27]
I prefer to divide the issues as follows:
1.
What is the standard of review?
2.
Did the Board err by rejecting Dr. Dattani’s
opinion?
3.
Did the Board err by rejecting the applicant’s
evidence about his stress?
V.
Applicant’s Written Submissions
[28]
The applicant submits that reasonableness is the
standard of review. Nevertheless, he emphasizes that section 39 of the Veterans
Review and Appeal Board Act requires the Board to accept any credible,
uncontradicted evidence that favours his case.
[29]
In his view, the Board’s approach to the
evidence of causation violated that section. He points out that he had a very
demanding workload starting in 1995 and explained that he did not mention the
stress it caused because he did not want to be seen as a complainer (citing Powell
v Canada (Attorney General), 2005 FC 433 at paragraph 33, 271 FTR 306).
Further, his nurse sent a letter saying that he was visibly strained when
working there and two other members of the RCMP commented that the work
environment was characterized by overwork and staff shortages. Indeed, an
independent study by Dr. Linda Duxbury confirmed that this was common in the
RCMP. The applicant says that the Board never gave any real reasons for
rejecting that evidence.
[30]
As well, the applicant feels the Board did not
properly consider Dr. Dattani’s opinions. He was the treating physician and his
evidence should have been considered carefully (see Leroux v Canada, 2012 FC 869 at paragraphs 59 and 60, 415
FTR 121). Further, the applicant says his new evidence showed that Dr. Dattani
had received recognition for his knowledge about hypertension and cardiac
disease. Still, the Board rejected it, even though it has no medical expertise.
The applicant says the Board did this for no legitimate reason, instead relying
on guidelines to the exclusion of all other evidence. If it had concerns, the
applicant says it was required to commission an independent medical opinion
pursuant to section 38 of the Veterans Review and Appeal Board Act; it
could not rely on its own research.
VI.
Respondent’s Written Submissions
[31]
The respondent agrees with the applicant that
reasonableness is the standard of review. The respondent also observes that
although this is technically a review of a reconsideration decision pursuant to
subsection 32(1), which is a discretionary power and the decision can only be
assessed with reference to the original appeal decision.
[32]
The respondent also argues that the applicant
ultimately must prove the causal link on a balance of probabilities (see Lunn
v Canada (Veteran Affairs), 2010 FC 1229 at paragraph 46, 379 FTR 59; Wannamaker
v Canada (Attorney General), 2007 FCA 126 at paragraphs 5 and 6, 361 NR 266
[Wannamaker]). Section 39 of the Veterans Review and Appeal Board Act,
though relevant, does not relieve the applicant of the burden to supply
credible evidence to support his claim. The respondent says that the Board
understood that and applied the correct tests appropriately.
[33]
Moreover, the respondent says the Board can
reject medical evidence without commissioning its own. It has a great deal of
expertise in assessing claims like this and its credibility findings are entitled
to deference. Although the Board did not question Dr. Dattani’s ability to
treat his patients, his opinion was contrary to both the contemporaneous
medical records, the medical consensus and its own precedents. The respondent
says that was reasonable and it left the applicant without any evidence to
engage section 39.
[34]
Finally, the respondent argues that the Board’s
refusal to consider new evidence was reasonable, as it did not meet the
requirements of diligence.
VII.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[35]
Where the jurisprudence has satisfactorily
resolved the standard of review, that analysis need not be repeated (see Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 62, [2008] 1 S.C.R. 190 [Dunsmuir]).
I agree with both parties that the law has settled on reasonableness for the Board’s
decisions about causation (see Wannamaker at paragraph 12; Werring v Canada (Attorney General), 2013 FC 240 at paragraph 11, [2013] FCJ No 300). The same
standard also applies to the application of section 39 of the Veterans
Review and Appeal Board Act (see Wannamaker at paragraph 13).
[36]
This means that I should not intervene if the
decision is transparent, justifiable, intelligible and within the range of
acceptable outcomes (see Dunsmuir at paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59, [2009] 1
SCR 339 [Khosa]). Put another way, I will set aside the Board’s decision
only if its reasons, read in the context of the record, fail to intelligibly
explain why it reached its conclusions or how the facts and applicable law
support the outcome (see Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16,
[2011] 3 S.C.R. 708). As the Supreme Court held in Khosa at paragraphs 59
and 61, I cannot substitute my own view of a preferable outcome, nor can I
reweigh the evidence.
B.
Issue 2 - Did the Board err by rejecting Dr.
Dattani’s opinion?
[37]
Pursuant to section 32 of the RCMP
Superannuation Act, a pension in accordance with the Pension Act can be
awarded to a member of the RCMP who suffers an injury or disease that “arose out of, or was directly connected with, the person’s
service in the Force”. That is analagous to subsection 21(2) of the Pension
Act, which uses similar language to require a causal connection between the
disease and service. However, “while it is not enough
that the person was serving in the armed forces at the time, the causal
nexus that a claimant must show between the death or injury and military
service need be neither direct nor immediate.” (see Frye v Canada (Attorney General), 2005 FCA 264 at paragraph 29, 338 NR 382 (emphasis added)).
[38]
Here, Dr. Dattani provided evidence that chronic
stress from the applicant’s position could have contributed to the applicant’s
coronary artery disease and his hypertension. The applicant complains that the
Board was wrong to reject that evidence.
[39]
However, it seems to me that it does not matter
whether the Board’s assessment of Dr. Dattani’s letters was reasonable or not.
Although it rejected his opinion that stress was a risk factor for coronary
artery disease, it accepted that chronic stress could contribute to
hypertension and that hypertension was a risk factor for coronary artery
disease. Ultimately, therefore, the reasonableness of the Board’s decision
hinges on its finding that the applicant did not experience chronic stress. If
that was reasonable, then it does not matter what it could have caused since
the applicant never had it.
[40]
In any event, the Board’s decision not to admit
the article about Dr. Dattani’s award was reasonable. With some qualifications
about the due diligence requirement, this Court has previously endorsed the use
of the four-part test from Palmer by the Board (see Chief Pensions
Advocate v Canada (Attorney General), 2006 FC 1317 at paragraphs 6, 42 and 43,
302 FTR 201, aff’d 2007 FCA 298 at paragraph 1). In this case, evidence about
the 2003 study that was the subject of the article could have been presented
earlier and, in fact, had been to the entitlement review panel. The Board was
aware that Dr. Dattani had participated in the information gathering phase of
such studies, but that did not prove he was a specialist. As such, the evidence
was neither truly new nor relevant and I cannot find any fault with the Board’s
analysis in this regard.
[41]
Further, I disagree with the applicant’s
contention that the Board needs to commission independent medical evidence before
it can reject a physician’s opinion. As the Board correctly explained, Rivard
stands only for the proposition that the Board cannot reject a medical opinion
by invoking medical knowledge that is not disclosed by the evidence (Rivard
at paragraph 42), and Mr. Justice Marc Nadon expressly observed that the record
in that case did not include “any medical literature or
medical book that contradicted the applicant’s evidence” (Rivard
at paragraph 36). Other cases have allowed the Board to consult other sources
so long as they are disclosed to the claimant and he or she is given an
opportunity to respond (see Deschênes v
Canada (Attorney General), 2011 FC 449 at paragraph
14 [2011] FCJ No 623; Hynes v Canada (Attorney General), 2012 FC 207 at
paragraph 28, 405 FTR 238). As the applicant raised no allegation of procedural
unfairness, I detect no error here.
[42]
As such, the Board was left with authoritative
textbooks saying that stress was not a risk factor for coronary artery disease
versus one opinion from a non-specialist and a couple of studies saying that it
could be. The Board had to choose between them. In making that choice, it was
relevant that Dr. Dattani did not address any of the other risk factors for
coronary artery disease that the applicant had. On the other hand, the
physician who actually treated the applicant for his coronary artery disease
did list risk factors in his reporting letter dated April 10, 2000:
Risk factors are negative for smoking and
diabetes. He has hypertension, hypercholesterolemia, and a positive family
history of coronary disease.
Stress was not
among them. In light of that and the textbooks contradicting Dr. Dattani’s
opinion, the Board reasonably decided that his evidence on this point was not
reliable. I would not disturb that finding.
C.
Issue 3 - Did the Board err by rejecting the
applicant’s evidence about his stress?
[43]
Section 39 of the Veterans Review and Appeal
Board Act says the following:
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39. In all proceedings under this Act, the Board shall
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39. Le Tribunal applique, à l’égard du demandeur ou de l’appelant,
les règles suivantes en matière de preuve :
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(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;
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a) il tire des circonstances et des éléments de preuve qui lui
sont présentés les conclusions les plus favorables possible à celui-ci;
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(b) accept any uncontradicted evidence presented to it by the
applicant or appellant that it considers to be credible in the circumstances;
and
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b) il accepte tout élément de preuve non contredit que lui
présente celui-ci et qui lui semble vraisemblable en l’occurrence;
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(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.
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c) il tranche en sa faveur toute incertitude quant au bien-fondé
de la demande.
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[44]
In Wannamaker at paragraphs 5 and 6, the
Federal Court of Appeal made the following observations:
[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: […].
[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:
[…]. Evidence is credible if it is plausible, reliable and logically capable of
proving the fact it is intended to prove.
[Citations omitted; emphasis added]
[45]
With that in mind, I am of the view that the Board
did not err by rejecting the applicant’s evidence about his stress.
[46]
Many of the applicant’s arguments to the
contrary are premised on the idea that the Board ignored how demanding his work
was. It did not. To the contrary, the Board expressly acknowledged that “the Appellant’s employment in the RCMP was demanding, and
would have created stress for the Appellant” (see entitlement appeal decision
at page 11). Indeed, it recognized that RCMP service could “normally involve exposure to severe emotional and physical
stress” (see reconsideration decision at page 6). As such, the
applicant’s argument that the Board rejected the evidence of the other RCMP
members and Dr. Luxbury’s report to that effect is unfounded.
[47]
Rather, the Board simply concluded that there
was not enough evidence that it was chronic enough to affect his health. It
gave several reasons for this conclusion: (1) the applicant reported that he
was in good emotional health and happy with his job throughout the relevant
period; (2) the applicant did not report stress to Dr. Dattani at the time; (3)
his contemporaneous medical records from every other physician are equally devoid
of any reference to stress; and (4) there was no evidence that he ever
complained about stress or his workload to anyone. Indeed, it was only after
the applicant started suffering from his heart conditions that he blamed them
on stress and the earliest documentary evidence of it was an email exchange in
2002 between him and Iris Carroll, a nurse. That was after he had first claimed
his disability pension. The Board explained to the applicant that it “preferred the contemporary evidence during your RCMP service
to your recollections after service.” (see reconsideration decision at page
7).
[48]
The applicant takes issue with that, saying that
he did not report his stress because he wanted to preserve his career
prospects. The applicant submits that the Board had to believe him because of
section 39. However, that is not the case, as the Board only has to accept
evidence that it finds credible (Wannamaker at paragraph 6). Here, the Board
rejected the applicant’s statement because that could only have explained why
he did not report his stress during his periodic reviews or to his colleagues.
It would not really explain why he would keep it secret from the physicians he
saw outside of the RCMP, like Dr. Dattani. Although that could potentially be
explained by his alleged desire not to be seen as a complainer, it would be a
very dangerous secret to keep given his alleged belief that it was contributing
to his heart problems. I cannot say the Board acted unreasonably by dismissing
his evidence on this issue as unreliable.
[49]
Finally, the Board also said it considered
carefully the non-expert opinions saying that they thought the applicant was
stressed. However, it ultimately preferred the medical reports to those as
well. I might not have done the same, but I think it was reasonable for the Board
to consider such retrospective opinions unreliable because they were
contradicted by the contemporaneous medical reports.
[50]
Consequently, the Board had before it
significant evidence that the applicant possessed a number of non-work-related
risk factors for the health problems he eventually had. On the other hand, it
had no reliable evidence that the applicant experienced the type of chronic
stress at his job that could contribute to hypertension and significant
contemporaneous evidence to the contrary. Since there was no credible evidence
which could have raised any doubt or from which it could have drawn a
favourable inference, section 39 was not engaged.
[51]
Therefore, the Board’s conclusion that the
applicant had not proven that work-related stress was responsible for his heart
conditions is defensible in respect of the facts and the law and I understand how
the Board reached it.
[52]
I would therefore dismiss this application for
judicial review. The respondent shall have its costs of the application.
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