Docket: T-2107-15
Citation:
2016 FC 1173
Ottawa, Ontario, October 20, 2016
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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LEAF TREMBACK
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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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JUDGMENT AND REASONS
[1]
The Applicant, Mr. Leaf Tremback, seeks judicial
review pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c
F-7, of a decision dated November 27, 2015, by the Chief of Defence Staff,
General J.H. Vance, in his capacity as the Final Authority (FA) in the Canadian
Armed Forces (CAF) grievance process. The FA denied Mr. Tremback’s grievance.
I.
Overview
[2]
Mr. Tremback is an Officer Cadet (retired) with
the CAF. He was bitten by a tick during military training in 2008. The tick was
removed by CAF doctors. He was initially treated with antibiotics for suspected
Lyme disease. The antibiotics were discontinued based on blood tests that were
negative for Borrelia burgdorferi, i.e. that did not show the presence
of the bacteria associated with Lyme disease. After several years of follow-up
with CAF physicians and specialists, Mr. Tremback was eventually diagnosed with
undifferentiated somatoform disorder. On June 8, 2012, Mr. Tremback filed a
grievance claiming the CAF failed to provide him with adequate medical
treatment.
[3]
Mr. Tremback was medically released from the CAF
on September 27, 2012. Although he does not dispute that he was medically unfit
to remain in the CAF, he contends that his various symptoms and his overall
medical condition are due to Lyme disease and not to somatoform disorder. He
submits that he was not provided adequate medical treatment by the CAF and that
his medical release should indicate Lyme disease as the reason for his medical
release.
[4]
Mr. Tremback’s grievance was denied at every
stage of the grievance process. The FA determined that the diagnosis and
treatment options pursued by the CAF were consistent with the available medical
evidence.
[5]
On judicial review, Mr. Tremback argues that the
decision is not reasonable because it is not supported by the evidence and it
is unintelligible. He submits that the FA, on the evidence before him, could
not rule out Lyme disease. In addition, the FA could not reasonably find that
the treatment provided by the CAF, which included antibiotics for Lyme disease,
was adequate medical treatment and at the same time find that the evidence did
not support a diagnosis of Lyme disease.
[6]
The decision of the FA to deny Mr. Tremback’s
grievance is reasonable. The FA provided a thorough decision explaining the
evidence that was relied on. The FA also explained why he could not rely on the
opinions of two independent medical practitioners, who diagnosed Mr. Tremback
with Lyme disease based on methods and test results not approved in Canada. At
each stage of the grievance process, the decision-makers assessed the varying
medical information and sought additional independent opinions on the
reliability of the tests conducted in the United States (US). The role of the
FA was not to diagnose Mr. Tremback, but to consider the evidence on the record
in order to determine his grievance, i.e., whether the CAF had provided him with
adequate medical care. The finding that he was provided with adequate medical
care is amply supported by the extensive evidence on the record.
II.
The Background
[7]
To provide the necessary context, key events and
medical findings are set out below.
Chronology
of the key events and medical treatment
- On July 16, 2008, Mr. Tremback was bitten by a
tick during military training in Farnham, Quebec. The tick was removed the
same day by CAF medical staff at the CAF medical facility in Farnham.
- One month later, in August 2008, Mr. Tremback sought treatment
for joint pain. CAF doctors prescribed Amoxicillin, an antibiotic used to
treat bacterial infections, including Lyme disease. His blood was tested
for Borrelia burgoferi, a bacterial species causing Lyme disease.
The results of that test revealed no evidence of infection.
- Mr. Tremback was later admitted to Kingston General Hospital
(KGH), in September 2008, after suffering an allergic reaction to his
prescribed antibiotics. Additional blood samples were tested and, based on
negative test results, the antibiotics were discontinued.
- On February 12, 2009, Mr. Tremback was treated for ongoing
joint pain by Dr. Isaac Dwosh at the KGH Rheumatology Clinic. Dr. Dwosh
reported that Mr. Tremback’s blood tests for Lyme disease were negative
and he was unable to make a diagnosis that could explain his symptoms.
- In September 2009, Mr. Tremback was treated by Dr. Anne Ellis
at the KGH Allergy and Immunology Clinic for seronegative arthritis and
allergic reaction to penicillin.
- In December 2009, the CAF referred Mr. Tremback to Dr. Hovsep
Baghdadlian, an Infectious Disease Specialist in Toronto. Dr. Baghdadlian
assessed Mr. Tremback and prescribed a year-long course of antibiotics. In
his March 22, 2010 report to the CAF, Dr. Baghdadlian stated that he
suspected Mr. Tremback had Lyme disease, noting the symptoms that were
consistent with Lyme disease. Dr. Baghdadlian also stated that he explained
to Mr. Tremback that this was a working diagnosis and discussed the
difficulty in making a definitive diagnosis without a tissue biopsy.
- In February 2011, Dr. Baghdadlian reported again to the CAF,
noting that Mr. Tremback’s condition had largely improved. Dr. Baghdadlian
concluded that “it is difficult to say what
infection this patient has, but given his immediate deterioration
following a tick bite and his response to antibiotics it is probable that
this was an infection induced by a vector-borne bacterial agent.” He
added that the tests for these pathogens are limited.
- On May 24, 2011, Dr. Crouzat, a CAF physician, performed a
follow-up assessment of Mr. Tremback for “suspected
Lyme disease.”
- In June 2011, Mr. Tremback sought independent medical treatment
from Dr. Maureen McShane, a general practitioner based in Plattsburg, New
York. Dr. McShane sent blood samples to several private, for-profit
medical laboratories in the United States. In August 2011, one of these
tests was positive for “growth of spirochetes in
the blood,” a possible indicator of Lyme disease. Dr. McShane
diagnosed Mr. Tremback with Lyme disease.
- In July 2011, Mr. Tremback asked the CAF to continue funding
his treatment for Lyme disease.
- The CAF then referred Mr. Tremback to Dr. William Cameron, a
Professor of Medicine at the Ottawa Hospital Infectious Disease Clinic.
Dr. Cameron noted Mr. Tremback’s full history and reported on the physical
examination and the medical tests conducted. Dr. Cameron also noted that
he had consulted Dr. Andrew Smith, a clinical psychologist, to discuss a
diagnosis of somatoform and other disorders.
- Dr. Cameron reported to the CAF on July 25, 2011, that there
was no indication that Mr. Tremback suffered from Lyme disease. Dr.
Cameron made a presumptive diagnosis of somatoform disorder.
- Mr. Tremback met with Dr. Smith in October and November 2011.
In January 2012, Dr. Smith confirmed Dr. Cameron’s presumptive diagnosis
of undifferentiated somatoform disorder. Dr. Smith recommended
hypnotherapy to relieve pain. Mr. Tremback did not pursue this treatment.
- In February 2012, Mr. Tremback again sought treatment in the US
from Dr. McShane.
- Mr. Tremback also consulted Dr. Jennifer Armstrong, a general
practitioner at the Ottawa Environmental Health Clinic. Dr. Armstrong
provided a medical opinion to Mr. Tremback’s legal counsel on June 8,
2012, setting out a clinical diagnosis of Lyme disease and environmental
sensitivities.
- On June 20, 2012, Dr. Matthew Landry, a CAF physician, reviewed
Dr. Armstrong’s clinical diagnosis and concluded that Dr. Armstrong had
failed to demonstrate that the diagnostic criteria for Lyme disease had
been met.
- On September 5, 2012, Mr. Tremback was assessed for his final
medical release by CAF physician, Dr. Christopher Funk. Dr. Funk’s report
indicated that there was no concrete evidence that Mr. Tremback had ever
had Lyme disease, even though he had previously received antibiotic
treatment. Dr. Funk advised Mr. Tremback that his medical release would be
based on a diagnosis of somatoform disorder.
- Mr. Tremback signed a Statement of Understanding on Release or
Transfer, on September 12, 2012, acknowledging that he was being released
under item 3B. This document does not set out any medical diagnosis. On
September 27, 2012, Mr. Tremback was medically released from the CAF.
- In September 2013, Veterans Affairs Canada (VAC) granted Mr.
Tremback a disability award on the basis of Lyme disease. VAC relied on a
different record than that before the FA, including Dr. Armstrong’s
opinion and a self-assessment questionnaire completed by Mr. Tremback.
The Grievance
[8]
On June 8, 2012, Mr. Tremback filed a grievance
with the CAF pursuant to section 29(1) of the National Defence Act, RSC,
1985, c N-5, and article 7.04 of the Queen’s Regulations and Orders, Vol
1, Chap 7. He stated that his grievance pertained to the failure of the CAF to
provide him with adequate health care. More specifically, he grieved that he
had not been afforded proper and effective medical treatment by the CAF.
As redress, he sought “proper medical care from the
Canadian Forces such that I can once again function as a reasonably healthy
human being or, should it become evident that I am a chronic sufferer of Lyme
disease, to be able to receive continuity of health care following my release
from the Canadian Forces.”
[9]
On August 13, 2012, Mr. Tremback augmented his
grievance to request, as redress, that the CAF agree that Dr. Baghdadlian’s
diagnosis was correct and that proper treatment be recommenced and continued
for Lyme disease. He augmented his grievance again in March 2015.
[10]
The grievance was first reviewed by
Lieutenant-Colonel Coleman McLean on October 9, 2013. Mr. Tremback was invited
to submit additional medical documentation from his non-CAF health providers.
[11]
On August 21, 2014, the Initial Authority (IA),
Brigadier General JJ-RS Bernier, concluded that the CAF had provided Mr.
Tremback with an appropriate level of health care and denied his grievance. The
grievance was mandatorily referred to the Military Grievance External Review
Committee (the Committee) for review.
[12]
On March 31, 2015, Mr. Tremback again augmented
his grievance to request two additional remedies: an ex gratia payment
of $250,000 and a change in his medical release from 3B-somatoform disorder, to
3B-Lyme disease.
[13]
On August 19, 2015, the Committee sent its
findings, and its recommendation that Mr. Tremback’s grievance be denied, to
the FA and to Mr. Tremback.
[14]
Mr. Tremback made submissions in response to the
Committee’s findings on September 11, 2015.
[15]
The FA issued his decision on November 27, 2015.
III.
The Decision under Review
[16]
The FA considered the grievance de novo. The
FA accepted the findings and recommendations of the Committee, noting that the
Committee had provided a thorough analysis of the issues. The FA attached the
Committee’s report to his decision. Given that the FA adopted the Committee’s
findings, a summary of its findings is set out below.
The Committee’s findings
[17]
The Committee addressed the wording of Mr.
Tremback’s grievance—that he did not receive proper and effective health
care from the CAF, noting that “effective”
health care suggests a cure, which is not always an achievable goal. The
Committee then focussed on whether Mr. Tremback was afforded “proper” health care by the CAF after he claimed to
suffer from Lyme disease.
[18]
The Committee reviewed the Canadian protocol for
the diagnosis and treatment of Lyme disease, noting that the clinical practice
guidelines were developed by the Infectious Diseases Society of America (IDSA).
The IDSA guidelines are used by Public Health Ontario Laboratories and the
Canadian Public Health Laboratory Network. The protocol requires that blood
testing be conducted by an approved laboratory and be based on scientifically
validated tests. The Committee noted that the Public Health Agency of Canada
(PHAC) and the United States Center for Disease Control and Prevention (CDC)
caution against the use of private, for-profit laboratories in the US that
offer testing for Lyme disease, as they do not follow the same protocols.
[19]
The Committee found that the tests relied on by
Mr. Tremback’s two civilian doctors had not been scientifically proven to be
reliable and are not accepted by the CDC or the PHAC. The Committee concluded
that the CAF’s refusal to accept the Lyme disease diagnosis was appropriate.
[20]
The Committee noted that Mr. Tremback’s civilian
doctor prescribed long-term antibiotics and supplements, contrary to IDSA
protocol. The Committee acknowledged that Dr. Baghdadlian had prescribed
Mr. Tremback antibiotics for a full year on the basis of his symptoms at the
time. The Committee found that the CAF reasonably refused to continue to fund
such treatment, as it did not conform to the IDSA protocol, which Canadian
health agencies have adopted. The Committee noted that the PHAC has warned
against long-term use of antibiotics for the treatment of persistent symptoms
and that those antibiotics should be used for no more than four weeks.
[21]
The Committee acknowledged that the treatment
for Lyme disease is controversial and that the IDSA protocol has been
criticised, but added that published studies indicate that prolonged antibiotic
use has not been proven safe or effective and is not accepted in the scientific
and medical community.
[22]
The Committee found that the treatment Mr. Tremback
received exceeded the approved IDSA protocol and exceeded that which would have
been available to other Canadians under provincial health care plans.
[23]
The Committee concluded that the CAF medical team
based its opinion that Mr. Tremback did not have Lyme disease on approved
tests and evidence-based medicine in accordance with Standard of Care
principles and Canadian medical standards. The Committee determined that the
CAF had provided Mr. Tremback with proper medical care.
The FA decision
[24]
The FA also concluded that the CAF had provided
Mr. Tremback with proper health care, including diagnosis and treatment, in
accordance with Canadian medical standards and the requisite Standard of Care.
Consequently, Mr. Tremback’s grievance was denied.
[25]
The FA noted that Mr. Tremback was examined by
several CAF doctors and six specialists and that the CAF provided Mr. Tremback
with extensive primary care, assessments by non-CAF specialists, support and
home care services. In addition to clinical examinations, diagnostic tests were
carried out, and none of the tests approved and recognized by the PHAC
indicated a positive result for Lyme disease. The FA acknowledged that civilian
doctors provided a diagnosis of Lyme disease. However, this diagnosis was based
on Mr. Tremback’s non-specific, largely subjective symptoms and on tests that
have not been approved by the PHAC, the CDC, or the United States Food and Drug
Administration (FDA).
[26]
With respect to treatment, the FA noted that Mr.
Tremback was initially treated for possible Lyme disease based on his clinical
presentation and recent history. Antibiotics were prescribed almost immediately
after he was first treated for a tick bite. Dr. Baghdadlian, an infectious
disease specialist, prescribed a course of antibiotics for one year based on
Mr. Tremback’s clinical symptoms. The FA noted the “remarkable improvement” and the resolution of his
symptoms reported by Dr. Baghdadlian.
[27]
The FA was satisfied that Mr. Tremback received
timely and appropriate medical care from the CAF in accordance with medically
accepted Health Canada protocol for Lyme disease treatments, adding that there
was no evidence that treatment was delayed or that he was denied an early
diagnosis.
[28]
The FA also noted that after multiple negative
blood tests “ruled out” the possibility of Lyme
disease, Mr. Tremback was referred to another infectious disease specialist and
then a psychologist, which led to a presumptive diagnosis of undifferentiated
somatoform disorder. On the basis of the presumptive diagnosis, the FA found
that the treatment (hypnotherapy) offered by the CAF’s psychologist was
appropriate. The FA noted that Mr. Tremback did not avail himself of this
treatment.
IV.
The Issues
[29]
Mr. Tremback submits, as a preliminary issue,
that the Certified Tribunal Record (CTR) did not
include his entire CAF medical file and full medical history. He argues that
the failure of the FA to consider all his medical information prejudiced him.
[30]
Mr. Tremback’s primary argument is that the
decision is not reasonable because it is not supported by the evidence as a
whole and is unintelligible.
V.
The Standard of Review
[31]
There is no disagreement that a decision of the
FA on the merits of a military grievance is reviewed on a standard of
reasonableness (Snieder v Canada (Attorney General), 2013 FC 218 at para
20).
[32]
To determine whether a decision is reasonable,
the Court focuses on “the
existence of justification, transparency and intelligibility within the
decision-making process” and considers “whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
VI.
The Preliminary Issue: the CTR
[33]
In his written
argument, Mr. Tremback argues that the CTR did not
include his entire CAF medical file and full medical history and that the
failure of the FA to consider all the medical information prejudiced him. Mr.
Tremback suggests that the CAF “cherry-picked”
evidence by including documents favourable to the CAF in the record and not
including those favourable to him.
[34]
The Respondent submits that Mr. Tremback had all
the relevant information in his possession. The Respondent adds that Mr.
Tremback did not raise any objection to the record that was before the FA,
despite having a reasonable opportunity to do so. In addition, he did not seek
leave to file a supplementary affidavit to place that information before the
Court. The information that Mr. Tremback points to as missing from the CTR was
not before the FA. The Court can only determine the reasonableness of the
decision based on the record before the FA.
[35]
Although Mr. Tremback did not fully pursue this
argument at the hearing, he did not abandon it. Therefore, I have considered
the issue with careful regard to the extensive record. In my view, the record
before the FA included all the relevant information. The decision of the FA,
which adopts the findings and recommendations of the Committee, demonstrates
that a wide range of evidence was considered, including evidence that supported
Mr. Tremback’s position. The information Mr. Tremback points to that was not
before the FA is reflected in other information that was clearly considered by
the FA. The FA acknowledged the controversy surrounding a diagnosis of Lyme
disease but clearly explained why he relied on IDSA protocols which are used,
accepted, and relied on by the PHAC and are consistent with the CAF Standard of
Care. Additional documents, which Mr. Tremback submits favour his position,
would not have changed the evidence-based approach and the guidelines that the
CAF followed.
VII.
Is the Decision Reasonable?
[36]
Mr. Tremback argues that the decision to refuse
his grievance is not reasonable because it is not justified on the facts and
because it is unintelligible.
[37]
Mr. Tremback submits that the CAF failed to
apply an evidence-based approach, as it claims to have done, and that the
evidence, in fact, supports a diagnosis of Lyme disease.
[38]
Mr. Tremback recounts that he was bitten by a
tick, which was not properly removed by CAF physicians, and which was never
sent for testing. He experienced symptoms of Lyme disease shortly after being
bitten. He notes that he was prescribed medication for Lyme disease, and his
condition improved; nonetheless, his treatment was discontinued.
[39]
Mr. Tremback submits that CAF doctors “assessed” him as having either Lyme disease or
suspected Lyme disease. Dr. Baghdadlian diagnosed him with Lyme disease
and treated him for over a year, with good results. Subsequently, Dr. Crouzat,
a CAF doctor, suspected Lyme disease and assessed him as such. He argues that
Dr. Crouzat’s assessment, along with the treatment he received for Lyme
disease, was tantamount to a diagnosis of Lyme disease by the CAF.
[40]
Mr. Tremback argues that, faced with this
evidence, it was erroneous and unreasonable for the FA to find that Lyme
disease was “ruled out.”
[41]
Mr. Tremback also submits that the decision is
unintelligible. The FA erred in finding that he was provided with adequate
medical care given that the CAF diagnosed him with undifferentiated somatoform
disorder but also prescribed antibiotics consistent with a diagnosis of Lyme
disease. Mr. Tremback argues that the medical treatment he received was
improper one way or another. If the diagnosis of somatoform disorder is
accepted, then he was improperly prescribed antibiotics for Lyme disease.
Alternatively, if he was misdiagnosed with somatoform disorder, then his Lyme
disease was not treated. Either way, the CAF did not provide him with adequate
medical treatment.
[42]
Mr. Tremback adds that the FA’s reliance on the
Committee’s finding that he received treatment that exceeded that which would
be provided to provincially insured patients in Canada is erroneous. He notes
the contradiction in the finding that he received adequate or excessive
treatment for a condition the CAF ultimately found he did not have.
[43]
Mr. Tremback also points to the antibiotics
prescribed by Dr. Funk at the time of his medical release, which he submits are
used to treat Lyme disease. Mr. Tremback asks why such drugs would be
prescribed for somatoform disorder. He submits that this demonstrates that he
did not receive proper medical treatment from CAF.
[44]
Mr. Tremback submits that his grievance should
be re-determined on the basis of all the evidence on the record and should
address why he was prescribed drugs for a condition the CAF disputes he has.
[45]
The Respondent submits that the FA’s decision
bears all the hallmarks of reasonableness in accordance with the Dunsmuir principles.
The FA’s findings regarding Mr. Tremback’s diagnosis and treatment were based
upon reliable medical evidence, which did not support a diagnosis of Lyme
disease. The objective evidence on the record demonstrates that Mr. Tremback
received proper medical care in accordance with CAF rules and policies. The
FA’s reasons are detailed and explain what evidence was relied upon and what
evidence could not be accepted.
[46]
The Respondent argues that several of Mr.
Tremback’s factual assertions are not supported by the record. Primarily, the
Respondent argues that no CAF doctors ever diagnosed Mr. Tremback with Lyme
disease, although Lyme disease was initially suspected.
[47]
The Respondent submits that Dr. Baghdadlian did
not confirm Lyme disease in March 2010. Rather, Dr. Baghdadlian suspected Lyme
disease based on Mr. Tremback’s symptoms, but no confirmatory tests were
ordered.
[48]
Likewise, Dr. Crouzat, a CAF doctor, did not
diagnose Mr. Tremback with Lyme disease. Rather, Dr. Crouzat assessed him in
May 2011, following his treatment by Dr. Baghdadlian, and referred to “suspected” Lyme disease.
[49]
Dr. Cameron, a non-CAF doctor, conducted a full
physical assessment of Mr. Tremback and reviewed his medical records. Dr.
Cameron unequivocally ruled out Lyme disease and recommended that other causes
for his symptoms be explored.
[50]
Although Dr. Armstrong and Dr. McShane submitted
blood for testing at US for-profit labs, these tests are not approved in Canada
by the PHAC or by the US FDA and only one of these tests returned positive.
[51]
The Respondent also notes that all the evidence
was considered at all levels of the grievance process. For example, Dr. Marcie
Lorenzen, who coordinates CAF complaints, sought the advice of another
specialist regarding Mr. Tremback’s medical condition and the conflicting
medical opinions. Dr. Lorenzen provided several of the articles relied on by
Mr. Tremback to the specialist for consideration and comment, as well as the
decision of VAC.
[52]
The Respondent submits that the decision is
intelligible. The FA clearly identified the issues, provided reasons with
reference to the evidence on the record, and explained why he could not accept
test results based on unapproved methods.
[53]
The Respondent acknowledges that there is some
evidence on the record to support a diagnosis of Lyme disease. However, it was
reasonable for the FA to discount the diagnosis of Dr. McShane and Dr.
Armstrong, as this diagnosis was based on unapproved tests.
[54]
The Respondent adds that the decision by VAC to
grant a disability award to the Applicant was based on a different record and
points out that the VAC finding that Mr. Tremback had Lyme disease was
inconsistent with VAC’s own medical assessment.
The
decision of the FA is reasonable
i.
The grievance v the remedy
[55]
The FA did not err in failing to address the
redress sought by Mr. Tremback. The subject matter of Mr. Tremback’s grievance
is the adequacy of the medical care and treatment provided by the CAF.
[56]
In March 2015, Mr. Tremback was asked whether
there was any change to the remedy he sought. He responded only with respect to
the remedy and did not seek to change the grievance, which remained about
proper medical care by the CAF. The FA and the Committee both acknowledged that
Mr. Tremback had amended the redress he requested to seek an ex gratia
payment and a revision in his medical release that would indicate a diagnosis
of Lyme disease.
[57]
Given that the FA decision denied the grievance
and found that adequate medical care had been provided, it was not necessary
for the FA to address Mr. Tremback’s request that his release indicate Lyme
disease. In addition, as noted by the Respondent, the medical release document
refers only to item 3B and does not name any particular medical condition,
although it was based on a diagnosis of somatoform disorder. Therefore, even if
the FA had found that the grievance was meritorious, the redress requested by
the grievor would not have been necessary.
ii.
The decision is supported by the objective
evidence on the record
[58]
Although Mr. Tremback and the Respondent dispute
some of the facts, including whether CAF doctors or Dr. Baghdadlian officially
diagnosed Mr. Tremback with Lyme disease, the record demonstrates that
the only doctors that provided an unequivocal diagnosis of Lyme disease were
Dr. Armstrong and Dr. Mc Shane. This diagnosis was based on Mr. Tremback’s
symptoms and one positive blood test result from a private laboratory in the
US. The CAF doctors did not provide a diagnosis of Lyme disease; they initially
suspected Lyme disease and assessed Mr. Tremback for Lyme disease at various
points in time. Dr. Baghadlian’s opinion was not unequivocal. He suspected Lyme
disease, made a working diagnosis based on Mr. Tremback’s clinical symptoms,
and explained the controversy surrounding the diagnosis. He did not order any
confirmatory blood test or other diagnostic test.
[59]
Both the FA and the Committee emphasized that
the CAF medical authorities could not rely on unapproved test results, noting
that this would contravene the directives which require them to adhere to the
scientific principle of evidence-based medicine. Even the laboratory reports
relied on by Dr. McShane included a disclaimer that the Laboratory was not
approved by the US FDA.
[60]
The FA did not err in stating that Lyme disease
was eventually “ruled out.” Although that is a
strong statement, given the controversy regarding the diagnosis of this disease
and the need for a confirmatory blood test, the CAF reasonably ruled it out
based on accepted Canadian protocols. The FA acknowledged criticism of IDSA
protocols but explained that those protocols currently guide the CAF and health
care providers in Canada. In addition, Dr. Cameron’s opinion supports the FA’s
finding that Lyme disease was “ruled out.” Dr.
Cameron, a non-CAF doctor and infectious disease specialist, provided a
definitive opinion, based on a full assessment of Mr. Tremback and a review of
his medical history.
[61]
Dr. Cameron stated, “[Mr.
Tremback] is seronegative for Lyme disease in our Public Health Laboratory,
which I am afraid truly is incompatible with chronic Lyme disease of the New
England area variety, despite what is said about serodiagnosis in the lay,
alternative and pseudo-medical communities.” Dr. Cameron concluded, “I am afraid that this man’s symptom-based syndrome is not
diagnostic or even suggestive of Lyme disease or any other conventional
infectious disease within diagnostic reach. The accompanying signs are
clearly factitious” [emphasis added].
[62]
Dr. Funk, who assessed Mr. Tremback for his
medical release, also reported that there was no concrete evidence that Mr.
Tremback had ever had Lyme disease.
[63]
The FA did not err in accepting the Committee’s
finding that the treatment provided to Mr. Tremback exceeded that which would
have been provided by non-CAF doctors to civilians. The record supports this
view. The IDSA protocols and PHAC protocols for the treatment of Lyme disease
indicate that antibiotics should not be prescribed for more than one month. The
FA acknowledged that Dr. Baghdadlian prescribed a year-long course of
treatment, with good results. However, the FA reasonably concluded that this
exceeded the treatment that is generally available. The CAF’s refusal to fund
ongoing treatment was reasonable based on the same protocols.
[64]
The FA did not ignore any evidence on the
record. He clearly addressed the contradictory evidence and explained why
certain evidence could not be accepted or was given less weight.
[65]
The FA reasonably found that the CAF had
provided adequate medical care—from diagnosis to treatment—based on the most
credible medical evidence available. The FA was entitled to place more weight
on medical opinions based on approved Canadian protocols for the diagnosis and
treatment of Lyme disease than on opinions based on unapproved tests, which
would be contrary to the Standard of Care principles the CAF adheres to. The
CAF reasonably concluded that Mr. Tremback’s symptoms were due to somatoform
disorder and recommended treatment accordingly.
iii.
The decision is not unintelligible
[66]
I do not agree that the decision is
unintelligible. The record demonstrates that the CAF provided Mr. Tremback with
the treatment that was indicated at various points in time based on his
symptoms and the most reliable medical information available to the CAF. It
would have been contrary to the Standard of Care principles to not provide
antibiotics for the treatment of Lyme disease following a tick bite and Mr.
Tremback’s presentation of symptoms. However, Mr. Tremback’s subsequent
negative blood test reasonably led the CAF doctors to discontinue antibiotic
treatment.
[67]
Mr. Tremback was later referred by the CAF to
Dr. Baghdadlian, who prescribed a year-long course of antibiotics based on Mr.
Tremback’s symptoms and a working diagnosis of Lyme disease. However, Dr.
Baghdadlian’s report notes that, although he suspected Lyme disease, he did not
have a confirmatory test result and he explained to Mr. Tremback the
controversy regarding the diagnosis of Lyme disease.
[68]
The CAF continued to assess Mr. Tremback
following Dr. Baghdadlian’s treatment and, in the absence of any reliable test
that could confirm the presence of Lyme disease, the CAF continued to refer him
to specialists for further assessment.
[69]
Dr. Funk did prescribe antibiotics at the time
of Mr. Tremback’s medical release, despite a diagnosis of somatoform disorder.
Mr. Tremback points to this as another contradiction. However, there is no
evidence on the record about what these antibiotics were or why they were
prescribed at that time. I also note that Dr. Funk’s report indicates that he
advised Mr. Tremback that he would not recommend the current regime of
medication Mr. Tremback was taking. Dr. Funk added that he “agreed to” prescribe three antibiotics for 30 days.
[70]
Mr. Tremback acknowledges that the antibiotics
he received, initially and over the year- long treatment by Dr. Baghdadlian,
did not cause him any harm and, in fact, his condition improved. Nonetheless,
he submits that on principle, treatment for a disease the CAF claims he does
not have is inadequate medical treatment. Alternatively, the CAF’s refusal to
continue treatment, if he does in fact have Lyme disease, demonstrates that the
CAF did not provide adequate medical care.
[71]
In Mr. Tremback’s argument, the CAF always falls
short. Although Mr. Tremback believes that the CAF failed him, and goes so far
as to suggest that the CAF had a vested interest in not supporting a diagnosis
of Lyme disease to shield the CAF’s failure to provide him with adequate health
care, the record demonstrates that the CAF did not abandon Mr. Tremback and, in
fact, persisted in its efforts over many years to get to the root of his health
condition and to treat him.
[72]
The FA reasonably found that the CAF provided
adequate health care and treatment and that Mr. Tremback’s grievance was not
established. This finding is based on the record, which includes a wide range
of medical assessments that reflect an evidence-based approach consistent with
the CAF’s Standard of Care principles and Canadian medical standards. The care
and treatment provided evolved with the most current and reliable medical information
available.
[73]
The VAC decision to grant a disability award
based on a diagnosis of Lyme disease was determined on a different record than
the extensive record before the FA.
[74]
There is also no evidence to support Mr.
Tremback’s contention that the CAF disapproved of his pursuit of independent
medical opinions and treatment and “retaliated”
with a diagnosis of somatoform disorder. The somatoform disorder diagnosis,
although unsatisfactory to Mr. Tremback, was made by medical professionals on
the basis of a thorough assessment.
[75]
I agree with the Respondent that the FA decision
meets the Dunsmuir standard of a reasonable decision. The FA decision is
transparent, justified by the facts on the record, and is intelligible. The FA
addressed all the evidence, including the contradictory evidence, and clearly
explained why it could not rely on evidence that did not conform to Canadian
medical standards and the CAF’s own Standard of Care.
VIII.
Conclusion
The application for judicial review is
dismissed. The parties agreed that costs in the amount of $2500 would follow
the event. As a result, costs of $2500 are awarded to the Respondent.
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