Terrance Hamilton Hall v. Canada (Attorney General), docket T-2267-97

Date: 19980622

Docket: T-2267-97

BETWEEN:

     TERRANCE HAMILTON HALL

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     Respondent

     REASONS FOR ORDER

REED, J.:

[1]      The applicant brings an application under s. 18.1 of the Federal Court Act for the review of a decision of the Veterans Review and Appeal Board, dated September 5, 1997. That decision reconfirmed an earlier decision by the Board refusing his application for a veteran's disability pension.

Background

     Procedural History

[2]      The applicant filed an application for a disability pension with the Department of Veterans Affairs on October 19, 1995. That application was refused by the Minister on September 4, 1996. An entitlement review hearing was held by a review panel of the Veterans Review and Appeal Board on January 22, 1997; the application for the pension was refused. An entitlement appeal before an appeal panel of the Board was held on June 9, 1997; the refusal was confirmed. The appeal panel of the Board reconsidered its June 9, 1997 decision on September 5, 1997. That reconsideration again resulted in the refusal of a pension. It is that decision to which this application relates.

     Facts

[3]      The applicant served in the Armed Forces Primary Reserve from November 24, 1983 to December 6, 1984. He was a member of the Cameron Highlanders of Ottawa regiment. During winter training in 1983-1984 he fell through the surface of deep snow into a crevasse. He was carrying a heavy radio backpack secured with a waistband and headband. He states that the fall caused his backpack to shift and the headband snapped his neck backward and sideways resulting in a whiplash type injury.

[4]      The applicant did not report the accident nor seek medical attention at the time. He states that at the time of discharge he signed a written medical statement that he had suffered an injury attributable to his service. He states that this would have given rise to a medical examination which documentation cannot now be found on his file.

[5]      The Medical Statement signed on discharge requires an outgoing member to state whether or not he or she has sustained an injury attributable to service by either striking out the word(s) "have" or "have not" that precede the words "suffered an injury" on the form. The applicant's form shows that the words "have not" are struck out, but the word "not" has been inserted in handwriting, uninitialled and undated, behind the word "have". The form thus reads "I ... have not suffered an injury ...". The applicant denies having inserted the word "not". The Medical Statement form also states that where an affirmative answer is given to the question of whether an injury was suffered, a medical examination is required. As noted, there is no medical examination report on the applicant's military record.

[6]      The applicant states that he did not seek medical attention for his injury until 1987-88, that is four years after the accident. He states that his family physician took x-rays at that time but these x-rays were not available at the time of his application for a pension in 1995. X-rays were also apparently taken in 1992, by a chiropractor that was then treating the applicant. The applicant states that he has these in his possession and they were presented to the Board.

[7]      The earliest available medical report presented to the Board to establish the applicant's condition is that of a chiropractor, Dr. D. Pietrangelo. He prepared a statement on January 11, 1996, containing the diagnosis: "Chronic cervical strain resulting in mechanical neck pain from joint dysfunction and associated muscle spasm". This was followed by a written report, dated December 19, 1996. The applicant states that Dr. Pietrangelo filed the 1992 x-rays with his report and these were subsequently returned. The December 1996 report reads as follows:

Further to my report of findings as regards Mr. Hall dated January 11, 1996. In my opinion this patients cervical disc disease condition which results in chronically recurring symptoms is the result of an old "whiplash" type injury to the neck and would have occurred at least 10 years ago.

Other than the neck injuries sustained while on Reserve Force activities, Mr. Hall denies any history of neck trauma, i.e.. motor vehicle accidents, falls, etc. This being the case I would therefore assume that the patient's neck condition is probably the result of his fall and injury while serving in the Reserve Force in the winter of 1983-84. [Underlining added.]

[8]      The applicant's physician, Dr. R. Lovell, had new x-rays taken in 1996. He prepared a statement on January 24, 1996, and a written report dated December 10, 1996. The latter reads as follows:

Mr. Hall has asked me to write a letter on his behalf with respect to ongoing problems from a neck injury that he sustained in 1984 while in the Armed Forces. He states that he went on manoeuvers [sic] carrying a rather heavy backpack when he fell through a surface into a crevice [sic] forcing his neck forward. He states that it took sometime [sic] for three of his fellow soldiers to extract him from this crevice [sic]. Immediately following his accident he had minor neck complaints that cleared up and did not really start to bother him until approximately one year later. Since that time he has been complaining of neck pain that over time requires a visit to the chiropractor approximately every two weeks to relieve this pain. He has no family history of arthritis, nor any evidence of arthritis elsewhere.

Cervical spine x-ray showed osteophyte formation at C4-5 and C6 with the rest of the x-ray being reported as normal. These signs of arthritis of the cervical spine which in the absence of any other sign of arthritis elsewhere would lead one to think that this is a condition brought on by his accident since he denies any other injuries to his neck.

In summary, I feel Mr. Hall suffers from mild arthritis to the cervical spine probably as a result of his neck injury in 1984. [Underlining added.]

     Decisions

[9]      As noted, the Minister's decision of September 4, 1996, refused the applicant's application for a disability pension. It reads in part:

A review of your service documents did not reveal any complaints or abnormal findings with regards to your neck during your period of service with Reserve Force Service. There were no Reports on Injury documented during your period of Reserve Force Service.

The first indication of a neck problem was recorded on a Physician' s Statement dated January 1996 that recorded a diagnosis of arthritis of neck.

With no documentation of a Report on Injury or any neck complaints recorded during your Reserve Force, the Department has concluded that your cervical disc disease diagnosed in 1996, is post discharge in origin and therefore not pensionable under Subsection 21(2).

. . .

In making its decision, the Department has considered and applied the provisions of Subsection 5(3) which provides that any doubt in weighing uncontradicted, credible evidence presented shall be resolved in the applicant's favour. [Underlining added.]

[10]      The entitlement review panel of the Veterans Review and Appeal Board, in its decision of January 22, 1997, concluded as follows:

The Review Panel noted there is no medical record of an injury to the Applicant during his Reserve Force service. Furthermore, there is no record of the extent of such an injury indicating possible future consequences. The Applicant sought medical help for the condition some four year [sic] following the injury and it wasn't until January 1996 that the diagnosis is made by a medical doctor some twelve years following the reported injury.

. . .

The Panel considered all of the medical evidence and opinions presented to it, along with the detailed statement submitted by the Applicant. In conclusion, the Panel has no medical advice or opinion of the occurrence or extent of an injury to the Applicant during the winter exercise in 1983/1984. The fact that his seeking medical attention in 1987-88 suggest that the disability is post-discharge in origin and not related to his Reserve Force service. [Underlining added.]

[11]      The decision of the Veterans Review and Appeal Board at the entitlement appeal level, dated June 9, 1997, confirming the Review decision, reads, in part:

. . .

This Board, based on the evidence before it, is unable to conclude that the claimed condition of cervical disc disease is attributable to or was incurred during Mr. Hall's relatively short, one year Reserve Force service.

This Board is satisfied that the Entitlement Board decision is appropriate and can find no basis to disturb it.

While this Board is sympathetic to Mr. Hall's situation, it is unable to conclude that the condition or any aggravation thereof is pensionable.

The evidence before this Board indicates that Mr. Hall's recorded condition of "cervical disc disease" was indeed diagnosed by a doctor of chiropractic, Dr. Pietrangelo on 11 January, 1996 as "chronic cervical strain resulting in mechanical neck pain from joint dysfunction and associated muscle spasm" and by Dr. Lovell on 20 December as "mild arthritis to the cervical spine probably as a result of his neck injury in 1984."

When Mr. Hall appeared before his Entitlement Review Board in Windsor, Ontario on 22 January 1987 [sic] he indicated that when he was released from militia service, he filed a medical statement regarding his neck injury. As noted also by that Board, this medical statement could not be found in any of Mr. Hall's release documents. [sic: the medical statement was among the release documents; a medical examination consequent on declaration of an injury was not].

Also obvious to this board is that the diagnosis, referred to earlier in this decision, is not supported by any x-rays.

This Board is faced with no evidence to support an award of pension. There is no indication of any symptoms or complaints during Mr. Hall's Reserve Force service and there is no reports of injury documented during this same period of time.

As for the contention by the Advocate that the evidence presented before the Entitlement Review Board raised a reasonable doubt that the claimed condition is related to an injury sustained in the course of Mr. Hall's Reserve Force service, this Board is of the opinion that in the absence of any supporting medical evidence on the record, it finds that the medical opinion found on the file simply raises a possibility. It is the opinion of this Board that these medical evaluations are simply speculation which, regrettably, is not sufficient under the circumstances to create a doubt in the mind of this Board that the claimed condition of cervical disc disease is related to an incident in 1983-1984. [Underlining added.]

[12]      The applicant sought a reconsideration of this decision by the Board. Reconsideration was sought on the ground that the panel had erred in concluding that the medical evidence simply raised a possibility that the incident caused his condition. The applicant noted that the medical reports he had filed had used the word "probably". He argued that any doubt about his claim should therefore have been resolved in his favour. The applicant referred particularly to Mr. Justice Teitelbaum's decision in MacKay v. Attorney General of Canada (T-1876-96, April 24, 1997). That decision dealt with an individual who claimed a disability pension as a result of a whiplash injury that had occurred 30 years prior to the initial medical evidence that was relied upon.

[13]      In the MacKay case the Board had refused to consider, on a reconsideration hearing, new medical evidence that was sought to be adduced. Mr. Justice Teitelbaum held that under the applicable legislation the Board had an obligation to consider such evidence. He also commented that expert medical evidence that speaks in terms of probabilities, not possibilities, could not be considered to be speculation, and he made reference to the decision in Moar v. Canada (Attorney General) (1995), 103 F.T.R. 314 (T.D.). The principle drawn from Moar was that unless the medical evidence is found not to be credible it must be accepted by the Board, if uncontradicted; if found not credible, reasons must be given for that finding.

[14]      The decision dated September 5, 1997, by the Board on reconsidering its earlier decision in the applicant's case reads in part:

This Board cannot agree with that argument presented by the Advocate. In the first place, the record, as it pertains to Mr. Hall's Regular Force service, does not disclose any evidence of complaints nor treatment in service. This Board carried out a complete review of Mr. Hall's service documents and did not reveal any complaints or abnormal findings. This Board did not view any Reports on Injuries or any documentation of any kind which indicated any injury or complaints of injury during Regular Force service.

In once more reviewing the whole of this application as required by this application for reconsideration, this Board maintains that Dr. Lovell's opinion is not supported by x-ray documentation and is based on historical information provided by the Applicant.

In other words, this Board is of the opinion that Dr. Lovell's letter of 20 December 1996 and the opinion contained therein cannot be supported by the Record. [Underlining added.]

Applicant's Arguments

[15]      The applicant argues that the Board's decision is flawed because: (1) it did not resolve doubts in weighing the evidence in his favour as required by subsections 30(a) and (c) of the Veterans Review and Appeal Board Act; the absence of a medical examination on discharge on his file should not be held against him; (2) it applied an inappropriate legal test in concluding that the medical evidence was inadequate to support his claim when both opinions were framed in terms of probability, not possibility; (3) it ignored relevant evidence, his own, without making an express finding of lack of credibility and stating reasons therefore, contrary to subsection 39(b); (4) it erred in its statement of the facts in stating that there was no x-ray documentation to support Dr. Lovell's opinion.

[16]      With respect to giving the applicant the benefit of every reasonable inference, the applicant notes that it was emphasized by Mr. Justice Campbell in King v. Veterans Review and Appeal Board Canada, November 7, 1997, T-91-97 (F.C.T.D.), at page 10, that the Board was obliged to accept uncontradicted evidence presented to it by an applicant.

Statutory Provisions

[17]      Veterans Review and Appeal Board Act, S.C. 1995, c. 18 as amended:

3.      The provisions of the 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 county so well and to their dependants may be fulfilled.

32.      (1) Notwithstanding section 31, an appeal panel may, on its own motion, reconsider a decision made by it under subsection 29(1) or this section and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law, or may do so on application if the person making the application alleges that an error was made with respect to any finding of fact or the interpretation of any law or if new evidence is presented to the appeal panel.

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.

Pension Act, R.S.C. 1985, c. P-6:

2.      The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.

21.      (2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,

(a) where a member of the forces suffers a disability resulting from an injury or an aggravation thereof that arose out of or was directly connected with such service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I.

Analysis

[18]      On judicial review, as is well known, the Court does not substitute its decision for that made by the tribunal that is under review. It is trite law that one must find that the decision was based on an error of law or on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before the Board; see, for example, Lalonde v. Canada (Veterans Appeal Board) June 21, 1995, T-224-94 (F.C.T.D.). Also, in Johnston v. Canada (Minister of Veterans Affairs) (1990), 108 N.R. 306 (F.C.A.), it was noted that the weight to be given to evidence must be left to the Board. See also Tonner v. The Queen, April 7, 1995, T-802-94 (F.C.T.D.).

[19]      Each decision respecting the applicant's application for a disability pension denied the application on the ground that there was no medical documentation in the 1983-84 period attesting to an injury or complaint. While the applicant correctly asserts that uncontradicted evidence by him should be accepted unless a lack of credibility finding is made, and that every reasonable inference should be drawn, and any reasonable doubt resolved in his favour, he still has the obligation to demonstrate that the medical difficulty from which he now suffers arose out of or in connection with his military service; that is, the causal linkage must be established.

[20]      The evidence supporting a causal linkage between the 1983-84 events and the later problem, however, is the applicant's own evidence and this evidence is not uncontradicted. It is contradicted by the 1984 documentary evidence: the Medical Statement that the applicant signed on discharge. That document states that he did not suffer an injury attributable to his military service during the relevant period.

[21]      An often quoted principle used in evaluating evidence is that greater weight is generally given to statements made prior to a legal claim being made than to those made at the time of the claim, or in contemplation of the claim. The earlier statements will not likely have been framed with the subsequent claim in mind. I am not saying that the applicant's evidence is not true, but only that the decision-makers below had the unenviable job of evaluating his 1995 evidence concerning the cause of the injury with the documentary evidence from 1984. They chose to rely on the latter and particularly the absence of any medical statement on discharge referring to the injury.

[22]      Also, the applicant's attempt to explain the medical statement that he signed, saying no injury had been suffered, is not very convincing. He said that he thought that someone may have changed the form after he signed it, perhaps to play a joke. He asserts that the change was not in his handwriting. However, while the change to the form may not be in his handwriting, it does not follow that the change was not made before he signed the form. Also, the absence of any medical examination on his file is consistent with the negative assertion on the Medical Statement.

[23]      The Board had before it: the applicant's evidence concerning his fall into the crevasse; his assertion that he reported this as a service injury on discharge for which assertion there is no supporting documentary evidence and indeed documentary evidence that contradicts it; his evidence that he sought medical attention in 1987-88 from his family doctor who took x-rays, which x-rays the applicant states he imagines "were destroyed long ago"; the more recent 1996 medical evidence of Drs. Pietrangelo and Lovell who attest to the present neck problems from which the applicant suffers but whose evidence concerning the initial cause thereof can come only from the applicant's description of the events that occurred. The Board weighed this evidence and found it could not conclude that the applicant's present problems were related to the events of 1983-84.

[24]      I cannot conclude that the Board's weighing of the evidence ignored any of the directions set out in section 39 and the jurisprudence. In the mouths of the doctors the statement that the injury was "assumed" to relate to the 1983-84 event; or that the doctor "feels" it is "probably" the result of the 1984 injury, is speculation. Neither doctor had any first hand knowledged of the events; they were not treating the applicant in 1983-84, and had not even been doing so at the commencement of his complaints in 1987-8. Neither doctor in 1996 had any basis other that the applicant's recitation of events on which to base a conclusion as to the event that caused the injury. And, as noted, the applicant's description of the 1983-84 event as constituting a cause of injury is contradicted by documentary evidence, signed by him in 1984.

[25]      One aspect of the decision, however, that does give rise to some uncertainty is the assertion by the Board that: "this Board maintains that Dr. Lovell's opinion is not supported by x-ray documentation ...". While the applicant appears not to have attempted to file the 1987-88 x-rays, he states that the x-rays from 1992 were filed by Dr. Pietrangelo and were subsequently returned to him. Also the applicant asserts that Dr. Lovell took x-rays in 1996 as part of his diagnostic procedure. Dr. Lovell makes reference to x-rays in his report to the Board.

[26]      Counsel for the respondent argues that the Board's statement that Dr. Lovell's opinion was not supported by x-ray documentation must be read in the context of the rest of the text of that decision and the previous Board decisions, and that the Board was referring to the lack of x-rays from 1983-84. Counsel's written argument reads:

It is clear from the Appeal Panel's reasons that it is not stating that no x-ray evidence was presented. What the Appeal Panel found was that there was no x-ray documenting that the origin of the injury occurred in 1983/84. Indeed, the Applicant's evidence was that x-rays were not taken until many years after his discharge from the forces. . . . .

[27]      The texts of both the reconsideration decision of September 5, 1997 and the earlier decision of June 9, 1997, however, are not as clear as counsel indicates in his argument. The language seems to indicate that the Board is referring to x-ray evidence in support of Dr. Lovell's 1996 diagnosis.

[28]      On reflection, I have decided that even if the applicant's interpretation of the Board's statements concerning a lack of x-ray documentation is correct, it would not assist the applicant, in the end, because he still has not proven causation. If the Board's reference is to the 1995-6 diagnosis, then, it relates to the extent of the applicant's present disability and that prognosis. It does not relate to the linkage between his present disability and events occurring during his military service. It is the inability to prove this linkage that is the main reason for the Board's refusal to grant the applicant a disability pension.

[29]      For the reasons given the application must be dismissed.

    

                                     Judge

OTTAWA, ONTARIO

June 22, 1998