Garrammone v. Canada (Attorney General), 2004 FC 1553

                                                                                                                                  Date: 20041104

                                                                                                                                 Docket: T-93-04

Citation: 2004 FC 1553

Montréal, Quebec, November 4, 2004

Present:          Mr. Justice Martineau

BETWEEN:

AMADEO GARRAMMONE

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR ORDER AND ORDER

[1]         The applicant, Mr. Amadéo Garrammone, was a member of the Canadian Armed Forces (the Forces) from July 25, 1974 until his release on February 3, 1988. On March 23, 1989, the applicant re-enlisted in the Forces and he is to this day still a member. The applicant is entitled to a pension under the Pension Act, R.S.C. 1985, c. P-6, for cardiac laceration conditions, former pericarditis, and incomplete right bundle branch block resulting from injuries suffered on November 4, 1978, when he was on active duty (applicant's cardiac condition).

[2]         Under subsections 35(1) and (2) of the Pension Act, the amount of pensions for disabilities shall 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. 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 of Veterans Affairs for the guidance of persons making those assessments. In the present case, the Department of Veterans Affairs (the Department) initially determined the extent of the disability resulting from the applicant's cardiac condition at 5 percent, then at 10 percent in the wake of the medical report of Dr. Saba, MPD, dated July 25, 2002. Dr. Saba suggests a combined assessment at a 10 percent level (the present assessment).

[3]         In the case at bar, the applicant thinks the present assessment does not adequately represent the seriousness of the disability he is suffering. He relies more particularly on a medical report subsequent to Dr. Saba's that was therefore not considered by the Department. This is the report of Dr. Kahwati, a cardiologist, dated December 11, 2002, which recommends that the applicant be assessed in the 3C class. According to Table 3 appended to Article 13.02 of the Canadian veterans' Table of Disabilities, for a Class 3C cardiac condition the disability assessment percentage is between 50 and 70 percent. In light of Dr. Kahwati's recommendation, the applicant asked the Veterans Review and Appeal Board (the Board) to increase the present assessment.

[4]         There are two stages to the appeal procedure under the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the Act). A person who is dissatisfied with a decision made pursuant to the Pension Act may ask the Board to review it, in which case the application for review shall be heard, determined and dealt with by a review panel consisting of not fewer than two members designated by the Chairperson (the review panel) (sections 18 and 19 of the Act). The applicant may call witnesses and file any documentary evidence. A person who is not satisfied with the decision of the review panel may then appeal, in which case the appeal shall be heard, determined and dealt with by an appeal panel consisting of not fewer than three members designated by the Chairperson (the appeal panel) (sections 26 and 27 of the Act). In the latter case, the appeal panel does not hear from witnesses but may receive the applicant's written submission and documented evidence (section 28 of the Act).

[5]         By decisions made on March 4 and November 25, 2003, respectively, the review panel and appeal panel determined that there was no cause to increase the present assessment at this time, hence the present application for judicial review of the Board's most recent decision.

[6]         This Court has previously held that it will apply the standard of the patently unreasonable decision in regard to the Board's decision on a question of fact and assessment of evidence: McTague v. Canada (Attorney General), [1999] F.C.J. No. 1559 (F.C.T.D.) (QL); Bernier v. Attorney General of Canada, [2003] F.C.J. No. 62 (F.C.T.D.) (QL). In doing so, the Court will not substitute its opinion for that of the Board: MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (F.C.T.D.) (QL). Nonetheless, the Court must also ensure that the Board acts in accordance with the Act. In its assessment, the Court will therefore bear in mind that the Board's analysis of the evidence must be conducted in compliance with the principles set out in section 39 of the Act: De Quoy v. Canada (Attorney General), [2004] F.C.J. No. 783 (F.C.T.D.) (QL).

[7]         Section 39 of the Act prescribes in this regard:

[8]         As one can observe, paragraph 39(a) of the Act provides that the Board shall draw every reasonable inference in favour of the applicant, while under paragraph 39(c), the Board shall resolve in favour of the applicant any doubt, in the weighing of evidence, as to whether the applicant has established a case. Similarly, paragraph 39(b) provides that the Board shall accept any uncontradicted evidence presented by the applicant that it considers to be credible. Thus, the Board must be able to explain to the applicant why, for example, it does not consider some uncontradicted evidence to be credible in the circumstances. That being said, section 39 of the Act does not relieve the applicant of the obligation to establish, by a balance of probabilities, that the cardiac condition he suffers has resulted in a disability of more than 50 percent as he now claims. (Hunt v. Canada (Minister of Veterans Affairs), [1983] F.C.J. No. 377 (F.C.T.D.) (QL). Consequently, the applicant had to satisfy the Board that the present 10 percent assessment was inadequate in the circumstances.

[9]         This means in this case determining whether, in refusing to follow the recommendation of Dr. Kahwati, who proposes that the applicant be assessed in class 3C, the Board erred in law or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material that was before it. It also requires a determination as to whether the Board's decision not to increase the present assessment is based on the evidence in the record and is reasonable in the circumstances.

[10]       Although this application for judicial review is addressed only to the appeal panel's decision, the appeal panel's reasons cannot be adequately understood without a prior consideration of the decision of the review panel, which was upheld by the appeal panel and referred to in its reasons for decision.

[11]       Let us begin by noting here that the review panel rendered a very detailed decision in which it says it specifically took into account the applicant's testimony and the medical information in the record, including the opinions of Dr. Saba and Dr. Kahwati. The review panel also says it compared this information with the information contained in the Table of Disabilities, more specifically in chapter 13, in determining the assessment of the degree of disability resulting from the applicant's cardiac condition.

[12]       Dr. Kahwati proposes that the applicant's cardiac condition be assessed in class 3C, without providing any particulars in his report as to the reasoning underlying this recommendation. If we refer to Table 1 appended to Article 13.02 of the Table of Disabilities, however, we find that class 3 covers "[p]atients with cardiac disease resulting in marked limitation of physical activity. They are comfortable at rest. Less than ordinary activity causes fatigue, palpitation, dyspnea or ... pain." (Emphasis added.) On the other hand, according to Table 2, class C covers "[p]atients with cardiac disease whose ordinary physical activity should be moderately restricted, and whose more strenuous efforts should be discontinued" (Emphasis added). As noted earlier, under Table 3 a class 3C cardiac condition results in a disability of between 50 and 70 percent.

[13]       The review panel rejected Dr. Kahwati's opinion, which it viewed [translation] "as being incomplete, insufficient and inadequate". First of all, the review panel seriously questioned the methodology used by Dr. Kahwati in his report to establish a diagnosis of [translation] "post-traumatic-neurogenic component recurring pericarditis". The review panel strongly doubted that Dr. Kahwati could reach this conclusion since the applicant had consulted him only once. Dr. Kahwati did not testify before the review panel. However, the review panel appears to have questioned the applicant on some aspects addressed in Dr. Kahwati's report. For example, the review panel notes in its decision:

[translation]

... On reading Dr. Kahwati's opinion, the Board questioned the applicant about the reference to recurring pericarditis. The question was, if Dr. Kahwati had been consulted only once for the purposes of this assessment, how had he found some recurring pericarditis? The applicant answered that it was by consulting his medical record as a whole and by relying on his testimony, that is, that the applicant himself told the physician that he was suffering from what he characterizes as heart spasms and he interpreted these spasms as pericarditis.

[14]       The review panel notes in this regard that there is very little medical data in the applicant's military record pertaining to his cardio-thoracic condition. Furthermore, the review panel disputes the likelihood of a 50 percent disability rate based on the results of the cardiac examinations and tests undergone by the applicant. One can read the following in the panel's decision:

[translation]

... Also, the Board should mention that it has some difficulty understanding Dr. Kahwati's conclusion, which suggests a class 3C, when in his report, he states that the clinical examination is normal and that the echocardiography is normal. In other words, the Board wonders what possible correlation there can be between some cardiac sequela, which generate a suggestion of 50 percent disability, and a normal clinical cardiac examination and a normal echocardiography. Furthermore, the Board was unable to obtain any interpretative information for the comment "CLINICALLY POSITIVE ELECTRICALLY DOUBTFUL STRESS TEST" and "NORMAL SINUSAL RHYTHM". What exactly does that mean, and how does it compare to some normal results and the 1999 test interpreted by the cardiologist Dr. Karam? The latter states that there is no identified clinical event, no electrical event indicating any significant changes, no arrhythmia, and that the stress test is clinically and electrically negative. And how can the cardiac rhythm not be normal, with a good systolic and diastolic function, normal B1 and B2, and a lack of noticeable to-and-fro murmur?

[15]       On appeal, the applicant submitted that in light of Dr. Kahwati's recommendation and by drawing every reasonable inference from all the evidence presented to it, the review panel should have reached an assessment of at least 50 percent. This argument failed to persuade the appeal panel, which concluded that there was no cause at this time to increase the present assessment of 10 percent for the applicant's cardiac condition.

[16]       In its decision, the appeal panel referred to the very detailed decision of the review panel, a decision that it virtually adopted, paying particular attention to certain aspects that appeared decisive to it in the circumstances. The appeal panel accepted the review panel's conclusion that the applicant had not demonstrated that he suffered or might suffer from a 50 percent cardiac condition since his injury had occurred in 1978 and he had completed his military career, occupying the position of military policeman from 1980 to 2002. The appeal panel notes in this regard that the review panel did not identify any restriction of cardiac condition mentioned in the evidence presented to it. Like the review panel, the appeal panel gave little credence to Dr. Kahwati's report. On the one hand, the appeal panel noted that the reference to recurring pericarditis in Dr. Kahwati's report was problematic since Dr. Beaulieu, in his report of February 24, 2001, notes that the applicant is not undergoing any treatment at present for pericarditis. Concerning Dr. Kahwati's recommendation that the applicant's cardiac condition be assessed in class 3C, the appeal panel notes that the reasoning on which Dr. Kahwati bases himself in making this recommendation is [translation] "far from clear". In regard to the reference to the echocardiography made by Dr. Kahwati in his report, the appeal panel refers to the report of Dr. Roumy, a radiologist, dated July 4, 2002, which says [translation] "the echocardiography [is] within normal limits...." In this regard, both Dr. Roumy and Dr. Saba, in his report of July 25, 2002, are of the opinion that there is [translation] "a good systolic and diastolic function [of the left ventricle]." Finally, the appeal panel, relying on the report of Dr. Saba, who suggested an assessment of 10 percent for the applicant's cardiac condition, and in light of the evidence adduced before it, concluded that there was no reason to increase the present assessment at this time.

[17]       The applicant contends in this Court that the Board made a patently unreasonable decision because it imposed an excessively onerous burden of proof on him. He alleges as well that the Board's decision errs in law because it failed to take into account the uncontradicted medical evidence that appears in the record. The applicant further alleges that the Board's decision is based on erroneous findings of fact.

[18]       It is true that the case in question involves some medical questions. In this regard, I agree that the Board, which has the power under section 38 of the Act to require the opinion of an independent medical expert, does not have intrinsic jurisdiction to rule on medical questions and has no particular medical competence that would enable it to state its views in the absence of evidence (Rivard v. Attorney General of Canada, [2001] F.C.J. No. 1072 (F.C.T.D.) (QL); MacDonald v. Attorney General of Canada, [2003] F.C.J. No. 1645 (F.C.T.D.) (QL); Moar v. Canada (Attorney General), [1995] F.C.J. No. 1555 (F.C.T.D.) (QL). However, the Board's decision not to increase the present assessment is based on the testimony of the applicant himself and on the medical evidence in the record, including the opinion of Dr. Saba who assessed the applicant's cardiac condition at 10 percent. This is not a case in which the Board makes no determination concerning the lack of credibility or plausibility of the evidence; nor is it a case in which the Board bases its decision on its own medical knowledge in order to refute the evidence presented. And it is not a case in which the only medical evidence in the record is that of Dr. Kahwati, evidence that the Board had arbitrarily decided to dismiss without providing reasons.

[19]       In this case I am persuaded that the Board did not demand a burden of proof more onerous than that of the balance of probabilities. In this regard, the applicant simply failed to persuade the Board that the disability estimate in question should be increased. In observing that a class 3C cardiac condition is significant and that it is doubtful that the applicant could have completed his career as a military policeman from 1980 to 2002 without the restrictions referred to in the Table of Disabilities appearing somewhere in the applicant's medical file, the Board does not, in my opinion, make a medical judgment. It makes a finding of fact. The Board could cast doubt on the credibility of Dr. Kahwati's opinion, insofar as that opinion was largely based on facts that were medically unverifiable or directly derived from impressions communicated by the applicant during the sole consultation he had with Dr. Kahwati. In such a case, in view of Dr. Saba's opinion already on file, I do not think the Board was under any obligation to require the opinion of another physician.

[20]       The Court does not accept the applicant's contention that the Board's decision errs in law because it failed to consider the uncontradicted medical evidence. The Board's decision is based on a comprehensive analysis of the evidence submitted by the parties. The Board may assign limited probative value to specific evidence when the evidence as a whole that is submitted tends to affirm the contrary. There is no reason in this case to conclude that the Board refused or overlooked any uncontradicted evidence that might have seemed credible in the circumstances. I do not think that the Board is required under paragraph 39(a) of the Act to draw every reasonable inference in favour of the applicant was violated in this instance. In my opinion, Dr. Kahwati's recommendation had to be considered in light of all the evidence in the record.

[21]       In this regard, the cardiac echography, dated July 4, 2002, indicates that the results are within the normal limits, that there is a good systolic and diastolic function of the left ventricle, and that no significant organic valve disease can be detected. Furthermore, no reference was made concerning the right ventricle.

[22]       The medical report dated July 25, 2002 states that the cardiac rhythm is regular, that there is no friction murmur and that everything appears normal considering the applicant's situation. The medical report also indicates that the applicant's heart has a good systolic and diastolic function and that there is no organic valve disease. It sets the assessment for the condition at 10 percent.

[23]       The report dated February 24, 2001 indicates that the applicant's heart is beating at a normal rhythm, no arrhythmia is noted, no to-and-fro murmur and the apical thrust is normal. In short, the applicant's condition appears normal, considering the existence of a 10 percent condition assessment.

[24]       The report of the graduated stress test, which was completed on September 8, 1999, disclosed that there was no clinical event identified, that in terms of electrical events there was no significant change and that there was no arrhythmia identified. In short, the test is clinically and electrically negative.

[25]       In connection with Dr. Kahwati's report, the Board indicated at least two problems it contained. The first was the reference to recurring pericarditis, On this point, the Board did not understand how Dr. Kahwati could make such a reference when he had met with the applicant only once. The second concerned Dr. Kahwati's suggestion that the applicant should be categorized as class 3C notwithstanding that Dr. Kahwati indicates, in his report, that the clinical examination and echocardiography are normal. In short, the Board seriously questioned the basis for the suggestion made by Dr. Kahwati. In the Court's view, the Board was right not to accord great probative value to Dr. Kahwati's report.

[26]       The Board based its decision on a comprehensive analysis of the applicant's file. Moreover, there is a presumption that the Board has examined all of the documentation that is put before it: Henderson v. Canada (Attorney General), [1998] F.C.J. No. 85 (F.C.T.D.) (QL) (1998). And the Board may reject the evidence submitted by the applicant when it has contradictory medical evidence: Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (F.C.T.D.) (QL).

[27]       In conclusion, I am of the opinion that the Board's decision is not reviewable. In view of the result, the respondent will be entitled to costs.

ORDER

THE COURT ORDERS that the application for judicial review be dismissed with costs.

            "Luc Martineau"

                    Judge

Certified true translation

Jacques Deschênes, LL.B.

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                           T-93-04

STYLE:                                                AMADEO GARRAMMONE v. ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                     QUÉBEC, QUEBEC

DATE OF HEARING:                       OCTOBER 21, 2004

REASONS FOR ORDER

AND ORDER:                                    MR. JUSTICE MARTINEAU

DATED:                                              NOVEMBER 4, 2004

APPEARANCES:

JACQUES FERRON                                                   FOR THE APPLICANT

PASCALE O'BOMSAWIN                                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

JACQUES FERRON                                                   FOR THE APPLICANT

QUÉBEC, QUEBEC

MORRIS ROSENBERG                                              FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA

MONTRÉAL, QUEBEC