Date: 20030616
Docket: T-679-02
Citation: 2003 FCT 749
OTTAWA, Ontario, Monday, this 16th day of June, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
DAVID F.J. YATES
Applicant
- and -
ATTORNEY GENERAL OF CANADA AND
REGISTRAR, VETERANS REVIEW AND APPEAL BOARD OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Veterans Review and Appeal Board (the "VRAB") dated December 21, 2001, refusing to increase the applicant's pension assessment for hypoparathyroidism from 5% to 10 - 15%. The issue in this application is whether the VRAB erred in concluding that the applicant had failed to present any objective medical evidence that supported his claim.
[2] The applicant is a former member of the Royal Canadian Mounted Police who retired in 1995 after 30 years of service. In addition to his regular pension he receives a disability pension with respect to following pensionable conditions at the following pensionable assessment percentages:
(i) Osteoarthritis Left Knee at 2%;
(ii) Chronic Sprain Left Ankle at 10%;
(iii) Hearing Loss at 5%;
(iv) Dislocation Right Acromioclavicular Joint at 5%;
(v) Diabetes Mellitus at 10%;
(vi) Diabetic Neuropathy at 10%;
(vii) Diabetic Retinopathy at 5%; and,
(viii) Hypoparathyroidism at 5%.
[3] An earlier decision of this Court dealt with the applicant's pensioned condition of diabetic retinopathy, for which the applicant had initially received a nil assessment because the VRAB ignored relevant evidence: Yates v. Canada (Attorney General), 2002 FCT 111. This application only concerns the pensionable assessment percentage awarded for the applicant's hypoparathyroidism. Pensionable disability assessments are made pursuant to section 35 of the Pension Act, R.S.C. 1985, c. P-6:
Pension in accordance with extent of disability
35. (1) Subject to section 21, the amount of pensions for disabilities shall, except as provided in subsection (3), be determined in accordance with the assessment of the extent of the disability resulting from injury or disease or the aggravation thereof, as the case may be, of the applicant or pensioner.
How extent of disability assessed
(2) The assessment of the extent of a disability shall be based on the instructions and a table of disabilities to be made by the Minister for the guidance of persons making those assessments.
Montant conforme au degré d'invalidité
35. (1) Sous réserve de l'article 21, le montant des pensions pour invalidité est, sous réserve du paragraphe (3), calculé en fonction de l'estimation du degré d'invalidité résultant de la blessure ou de la maladie ou de leur aggravation, selon le cas, du demandeur ou du pensionné.
Estimation du degré d'invalidité
(2) Les estimations du degré d'invalidité sont basées sur les instructions du ministre et sur une table des invalidités qu'il établit pour aider quiconque les effectue.
In 1991 the applicant was awarded a pension for his condition of Hashimoto's thyroiditis. Seven years later he underwent surgery related to this condition and his left thyroid gland was damaged beyond repair. Because the applicant's right thyroid had been surgically removed in 1985, he was left with no thyroid glands and was diagnosed as having hypoparathyroidism. As a result of this condition, the applicant experiences fatigue and muscle cramping. His hypoparathyroidism also inhibits his body's absorption of calcium, causing him balance and coordination difficulties. To counteract this, the applicant takes the drug Rocaltrol, which is designed to help the body absorb more calcium. The side effects of the drug include weakness, constipation and muscle pain, all of which have been experienced by the applicant.
[5] On March 14, 2000 the Department of Veterans Affairs granted the applicant a disability pension for his hypoparathyroidism because it was consequential to his pensioned condition of Hashimoto's thyroiditis. The applicant was not satisfied with the 5% assessment and requested an increase to 10 - 15% from an Assessment Review Panel. His request was denied on May 17, 2000 on the basis that there was insufficient medical evidence to proceed to a Review Panel. To remedy this problem, a Pension Medical Examination was arranged for the applicant. The examination was conducted by Dr. F.A. Hilderman, who wrote in his report dated October 17, 2000 that the applicant was "feeling good" and recommended no further changes to his assessment. In addition, tests conducted on September 14, 2000 and March 14, 2001 revealed that the applicant's calcium level was within the normal range.
[6] The other piece of medical evidence before the panel was a report dated September 2, 1999 from Dr. Alun L. Edwards, the applicant's endocrinologist. He concluded in his report:
[T]he current treatment and dosage of thyroxine appears to be completely appropriate at 250ug a day as it is giving him a TSH value that is exactly where it should be in the normal range [...]
It looks as if the calcium level is also coming into a desirable range; we tend to try and keep calcium levels between 2.0 and 2.2 mmol/L in hypoparathyroid patients and Dave's latest value is 2.0 which seems to suggest that we have the right dosage combination for him.
The report basically said that the medical condition is under control with drugs.
[7] The applicant's case proceeded to an Assessment Review hearing on May 17, 2001, but was denied on July 12, 2001. He appealed that decision to the VRAB and a hearing was held on November 20, 2001. The VRAB affirmed the decision of the Assessment Review Panel and noted that the applicant takes medication to control thyroid function and calcium levels and only recently the thyroid function and calcium levels appear to be properly controlled so that the applicant indicated that he was "feeling good". The VRAB stated at pages 2 and 3 of its reasons:
The Board has not been presented with any objective medical evidence to support the subjective complaints of the Appellant. In fact, the evidence would suggest that the medication Rocaltrol is effective and there is no documented evidence of any side effects in relation to same.
This Board notes that the Appellant currently suffers from other conditions that may, in fact, be contributing to his symptoms and subjective complaints. This Board has not been presented with any evidence including objective medical evidence in relation to the claimed condition that would have it conclude that the condition of Hypoparathyroidism warrants a greater assessment than 5%. The Board has taken into consideration all of the argument put forth on behalf of the Appellant, the exhibit from the Appellant in his written statement and concludes that an assessment increase is not warranted at this time. This Board rules to affirm the Assessment Review decision of 17 May 2001.
[8] The applicant is now seeking to have the VRAB's decision judicially reviewed. On an application for judicial review, the Court may not substitute its decision for that of the VRAB. The VRAB has exclusive jurisdiction and a privative clause which renders its decisions final and binding. The applicable standard of review for decisions of the VRAB is patent unreasonableness: MacDonald v. Canada (A.G.) (1999), 164 F.T.R. 42 per Cullen J. at para. 21:
[T]he reviewing Court may interfere only in the event that the impugned decision was based on an error of law, or an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it [...]
Interpreting medical evidence and assessing an applicant's medical disability is at the heart of the VRAB's specialized jurisdiction and its determinations should be approached with deference: McTague v. Canada (A.G.) (1999), 177 F.T.R. 5 at paras. 46-47.
[9] The applicant has failed to demonstrate that the VRAB committed an error that would justify the granting of this application. I agree with the VRAB that there is no objective medical evidence to support the applicant's request. To the contrary, the applicant's endocrinologist Dr. Edwards' stated that the condition is under control with medication. The applicant claims to experience severe side effects from Rocaltrol. While these side effects may warrant an assessment of greater than 5%, no medical evidence concerning the side effects was put before the VRAB. Medical evidence to this effect will first need to be properly presented to the Department if the applicant is to receive an increased assessment. He will need to demonstrate that these symptoms are not related to any of the seven other pensionable medical conditions for which he is currently receiving a disability pension.
[10] The respondents have argued that his application was not brought in accordance with the provisions of the Federal Court Rules, 1998, SOR/98-106 and should be struck out. In light of my conclusion on the merits of this application, there is no need to address this submission.
ORDER
THIS COURT HEREBY ORDERS THAT:
This application is dismissed.
"Michael A. Kelen" ________________________________
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-679-02
STYLE OF CAUSE: DAVID F.J. YATES v. ATTORNEY GENERAL OF
CANADA AND REGISTRAR, VETERANS REVIEW
AND APPEAL BOARD OF CANADA
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 10, 2003
REASONS FOR ORDER
AND ORDER OF: THE HONOURABLE MR. JUSTICE KELEN
DATED: June 16, 2003
APPEARANCES:
Mr. David F.J. Yates FOR APPLICANT
Mr. Ron Nichwolodoff FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. David F.J. Yates APPLICANT ON HIS OWN
BEHALF
Morris Rosenberg, FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
FEDERAL COURT OF CANADA
Date: 20030616
Docket: T-679-02
BETWEEN:
DAVID F.J. YATES
Applicant
- and -
ATTORNEY GENERAL OF CANADA AND REGISTRAR, VETERANS REVIEW AND APPEAL BOARD OF CANADA
Respondents
REASONS FOR ORDER
AND ORDER
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