Date: 20010518
Docket: T-729-00
Neutral Citation: 2001 FCT 506
BETWEEN:
RAYMOND DESLOGES
Applicant
-and-
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of the Veterans Review and Appeal Board (the "Board") dated February 28, 2000, wherein the Board upheld the Entitlement Review Panel decision denying his application for a disability pension.
[2] The issue is whether the Board made an unreasonable finding when it determined that the fall that the applicant suffered on February 24, 1988 while in the shower at the Rockcliffe base did not arise from or was not directly connected to his military service. Further issues are the following: Did the Board err by imposing a requirement for a Report on Injuries?; Did the Board err by failing to draw reasonable conclusions with respect to the issue of whether the fall contributed to the applicant's lumbar disc disease?; Did the Board err by giving little or no weight to the applicant's testimony and the evidence of Dr. Lee and Dr. Gillen, all regarding his medical condition?; and Did the Board fail to give due consideration to the known precedent cases where pensions were awarded as a result of aggravated lumbar disc disease resulting from running?
[3] The applicant's medical report of February 25, 1988, prepared by the doctor at the Medical Inspection Room, CFB Rockcliffe, sets out that he received a back injury as a result of a fall he suffered on February 24, 1988 in a shower stall at the Rockcliffe base. The applicant claims that he was taking a shower after completing a 4 mile noon-hour run which was part of his military fitness training. This running activity had been approved in accordance with Canadian Forces policy, during the regular fitness assessment process of the Canadian Forces. The applicant alleges that this injury (and the running he performed on an ongoing basis while in the force) contributed to the onset, acceleration and aggravation of the lumbar disc disease from which he suffers.
[4] On September 10, 1997, the Department determined that his disability was not pensionable. Following that determination, an Entitlement Review Panel held that the applicant's injuries did not arise from or were not directly connected with service in peacetime. The February 28, 2000 decision of the Board upheld that decision.
[5] The Board cited subsection 21(3)(a) and (g) of the Pension Act, R.S.C. 1985, c. P-6, at page 3 of its decision. These sections of the Act state that an injury or the aggravation of an injury will be presumed to have arisen out of or been directly connected with military service if the injury occurred while the applicant was participating in physical training, or if the applicant was performing any duty that exposed him or her to an environmental hazard that may have caused the injury, respectively. The Board held that showering after physical training was not physical training.
[6] However, the Board did not cite subsection 21(3)(b) in its reasons for decision. For clarity, I note that subsections 21(3)(a) and (b) state:
| For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of
(a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority;
(b) any activity incidental to or directly connected with an activity described in paragraph (a), including the transportation of the member by any means between the place the member normally performed his duties and the place of that activity;
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Pour l'application du paragraphe (2), une blessure ou maladie -- ou son aggravation -- est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours_:
(a) d'exercices d'éducation physique ou d'une activité sportive auxquels le membre des forces participait, lorsqu'ils étaient autorisés ou organisés par une autorité militaire, ou exécutés dans l'intérêt du service quoique non autorisés ni organisés par une autorité militaire;
(b) d'une activité accessoire ou se rattachant directement à une activité visée à l'alinéa a), y compris le transport du membre des forces par quelque moyen que ce soit entre le lieu où il exerçait normalement ses fonctions et le lieu de cette activité;
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[7] The Board's failure to mention subsection 21(3)(b) constitutes a reviewable error because it is clear that this subsection includes as part of military service those activities incidental to the performance of physical training activities, which reasonably includes the act of showering after completing physical activity conducted for training purposes. This is particularly true since subsection 21(3)(b) provides that transportation between the place the member normally works and the place of the physical activity is included as activity incidental to an activity described in paragraph (a). Subsection 21(3)(b) is applicable given the facts of the present case and should have been considered by the Board in its review of the Entitlement Review Panel's decision.
[8] There was no finding on the credibility of the applicant, so his testimony must be accepted as credible unless the Board states otherwise and provides reasons for its finding.
[9] I now turn to the issue of the weight accorded by the Board to the medical evidence of the applicant, Dr. Lee and Dr. Gillen. Given that the Board based its decision primarily on its finding regarding "service relationship", it did not delve into the medical
evidence to any great degree. I note that in its reasons, the Board did not make note of the fact that the Dr. Gibbons, whose opinion is mentioned as contradictory evidence, was not a back specialist but was instead the base doctor, and that Dr. Gibbons' comments were given in the context of seeking further treatment for the applicant rather than evaluating the cause of the applicant's lumbar disc disease. Furthermore, his notes did not mention the February 24, 1988 fall in the shower. The Board also failed to note that Dr. Gillen is a specialist who undertook the most extensive examination of the applicant's condition. It would be helpful for the Board to take note of these facts when reassessing the applicant's claim.
[10] The applicant also argued that the Board erred by not giving adequate consideration to the case law concerning matters which had been successful in claiming that running activity had aggravated the lumbar disc disease suffered by the claimants in those cases. Specifically, the applicant submits that the Board should have accepted the uncontradicted evidence of Dr. Petts, who had given a medical opinion in a previous case before the Board. Apparently, the Board accepted this opinion as evidence in a second case. Whatever may have occurred in those decisions, in the present matter the Board did not err by ignoring the evidence of Dr. Petts. This evidence did not concern the individual applicant in this case and the Board was not required to accept it or to give it consideration.
[11] The decision of the Board dated February 28, 2000 is quashed. The application for judicial review is allowed and the matter is returned to the Board for redetermination in a manner not inconsistent with these reasons.
[12] Costs are awarded to the applicant on a party-party basis. The applicant, as a self-represented litigant, is not entitled to counsel fees, but is entitled to disbursements in accordance with Tariff B.
"W.P. McKeown"
__________________________
JUDGE
Ottawa, Ontario
May 18, 2001
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