Date: 20040520
Docket: T-990-03
Citation: 2004 FC 751
CALGARY, Alberta, May 20, 2004.
Present: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
ROBERT B. GILLIS
Applicant
and
ATTORNEY GENERAL OF CANADA AND REGISTRAR, VETERANS
REVIEW AND APPEAL BOARD OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] Mr. Gillis is approaching 40 years of age and is a process engineer. He has been an active athlete throughout his life. He served in the Canadian Armed Forces from June 21, 1984, until July 31, 1995. He sustained a significant thigh injury while playing hockey and successfully applied to the Minster of Veterans Affairs for a pension entitlement determination.
[2] Mr. Gillis was granted pension entitlement for Right Quadriceps Compartment Syndrome (Operated) resulting in Paresthesia Right Thigh. On November 19, 1996, after a pension medical examination, a 3% disability was granted by the Veterans Review Appeal Board (VRAB), effective August 7, 1995.
[3] On December 8, 1999, Mr. Gillis requested that he be examined again by the medical examiner regarding his condition. He was experiencing throbbing in his leg and increased hypersensitivity. He was examined on January 27, 2000, and the critical findings of the medical examiner were that, with respect to the pensioned condition, there was almost no difference between the January, 2000 examination and the one conducted in 1996. The physician noted that there could be a "consequentiality" (the knee), but in his opinion, Mr. Gillis was properly assessed for the pensioned condition.
[4] Mr. Gillis has apparently applied, pursuant to subsection 21(5) of the Pension Act, R.S.C. 1985, c. P-6 for a pension entitlement determination regarding problems allegedly consequential to the compartment syndrome. That application is working its way through the system and forms no part of the present application for judicial review.
[5] A request for reassessment of the pensioned condition was submitted to Veterans Affairs Canada on March 20, 2002. Mr. Gillis supplied his medical records for the years 2000 and 2001. The VRAB assessment of April 15, 2002 revealed an assessment of 3% disability. A VRAB assessment review was conducted on October 29, 2002, with the result that there was "no increase in assessment indicated at this time".
[6] The VRAB assessment review was appealed to the VRAB appeal board and the hearing was held on May 7, 2003. The decision of the VRAB assessment review panel was affirmed. Mr. Gillis seeks judicial review of the VRAB appeal board's decision.
[7] The hearing before the VRAB appeal board proceeded under subsection 35(1) of the Pension Act, which provides:
| Pensions for Disabilities
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.
35(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.
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Pensions pour 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.
35(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.
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[8] The applicable standard of review is that of patent unreasonableness: Elliot v. Canada (Attorney General) (2002), 226 F.T.R. 145 (T.D.) aff'd. (2003), 307 N.R. 344 (F.C.A.).
[9] Mr. Gillis was self-represented at the hearing of this application. He submits that the VRAB erred because it ignored the comments of Dr. Kelly Brett in his medical report dated March 5, 2003, wherein Dr. Brett stated: "...An acute compartment syndrome is a severe injury. It leads to long-term complications related to the requirement for the fasciotomy. Mr. Gillis' case is not unusual. He has gone on to develop both pain in his thigh and the structures surrounding his thigh".
[10] Mr. Gillis additionally contends that there has been no consideration of the obvious and proven physical degradation of the right quadriceps, the failure of physiotherapy to improve the pain or strength in his thigh and knee, the difference in the size of his thigh, the presence of a foreign mass in the thigh, or of the literature indicating long term morbidity. He refers to section 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18, which provides direction as to how the board is to deal with the evidence that is before it. Specifically, the board shall draw every reasonable inference in favour of the applicant, accept any uncontradicted evidence presented by the applicant that it considers to be credible and resolve in favour of the applicant any doubt, in the weighing of the evidence, as to whether the applicant has established a case.
[11] In arriving at its decision, the VRAB specifically referred to the thigh size, the modified step test, and the decrease power against extension differences between the 1996 and 2000 medical examination assessments. It additionally referred to Dr. Brett's comments regarding the long-term complications arising from compartment syndrome. It indicated that it had carefully reviewed all the evidence, medical records and submissions, and had complied fully with the statutory obligation to resolve any doubt in the weighing of evidence in favour of the applicant or appellant in accordance with sections 3 and 39 of the Act.
[12] The board noted that Mr. Gillis has other problems with his leg that may be consequences of the pensioned condition. It referred specifically to the January 27, 2000 report of the medical examiner that indicated that it was the knee that presented more problems than the quadriceps and to the finding that there was almost no difference between the 1996 and 2000 examinations with respect to the pensioned condition. Finally, it concluded as follows:
Given that Dr. Brett's letter provides no evidence of any medical
deterioration in the Appellant's pensioned condition, and
attributes his increasing difficulties to non-pensioned conditions - as
does the Pension Medical Examination of January 2000 - the Board
is unable to find rationale for any increase in the present level of
assessment. The 29 October 2002 decision of the Assessment Review
Panel, therefore, is affirmed.
[13] While I would not have concluded that Dr. Brett's report provides no evidence of any medical deterioration in Mr. Gillis' pensioned condition, Dr. Brett's report does not explicitly describe nor provide particular evidence of a deterioration in that condition. The following statements were also contained in the report:
He has gone on to develop right knee, right hip and right thigh pain related to this condition...
Investigations, including bone scan and an x-ray revealed only a trace amount of activity related to his previous injury, but no obvious evidence of myositis ossifications...
The fasciotomy and ensuing injury to his quadriceps muscle, in all likelihood, has changed the mechanics of his right lower extremity. Any change to the mechanics in one part of the lower extremity certainly has effects on both the joint above and below the site of injury. This would account for Mr. Gillis'ongoing right hip and knee pain.
[14] When Dr. Brett's report is viewed in totality and in conjunction with the medical examiner's report as well as the x-ray and bone scan reports, I am unable to conclude that the board's decision was not reasonably open to it. The decision certainly cannot be said to be patently unreasonable. The VRAB was dealing only with the pensioned condition, not with any consequential conditions arising from it. As previously stated, the issue before me is the VRAB decision dealing with the disability assessment for the pensioned condition. I therefore, reluctantly, conclude that the application for judicial review must be dismissed.
[15] The respondent sought costs, but in the exercise of my discretion, I decline to award costs.
ORDER
IT IS HEREBY ORDERED THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
F. C. J.
Calgary, Alberta
May 20, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-990-03
STYLE OF CAUSE: Robert B. Gillis v. Attorney General
of Canada and Registrar, Veterans
Review and Appeal Board of Canada
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: May 18, 2004
REASONS FOR ORDER AND ORDER : LAYDEN-STEVENSON J.
DATED: May 20, 2004
APPEARANCES:
Mr. Robert B. Gillis (REPRESENTING HIMSELF)
FOR APPLICANT
Ms. Carrie Sharpe FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Robert B. Gillis (REPRESENTING HIMSELF)
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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