Date: 20010125
Docket: T-2138-99
BETWEEN:
DALE G. SCHOTT
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
HANSEN J.:
Introduction
[1] This is a judicial review of a decision of the Veterans Review and Appeal Board of Canada ("VRAB") dated October 13, 1999. This decision, communicated to the applicant on November 8, 1999, dismissed the applicant's appeal from a decision of the Entitlement Review Panel dated April 8, 1999, dismissing the applicant's appeal of a decision of the Department of Veterans Affairs ("DVA"). The DVA had denied the applicant's application for disability pension pursuant to subsections 21(1), 21(2) and 21(5) of the Pension Act, R.S.C. 1985, c. P-6, as amended.
Facts
[2] After forty years as a member of the Canadian Armed Forces, the applicant was released from service on November 8, 1995, after having worked in a reduced, self-paced capacity since July 1993. The applicant had been receiving treatment for cancer, specifically, multiple myeloma, since May 1991. The applicant has a history of medical consultations dating from October 1977, relating to chest pain, back pain, fatigue, and abdominal pain.
[3] In January 1990, while on duty in Oslo, Norway, the applicant began experiencing particularly severe chest pain and was hospitalized for eight days. While cancer was mentioned as a possibility, the applicant underwent tests, including a bronchoscopy followed by a transbronchial biopsy, which resulted in his being diagnosed with sarcoidosis and treated accordingly. His pain abated and his medication terminated in June 1990, at which time he was declared medically fit for posting and was transferred to Virginia.
[4] At the end of August 1990, however, the pain returned and the sarcoidosis medication was re-prescribed. This time, however, the medication had no effect, and his pain continued over the course of seven months, both increasing in intensity and changing in nature.
[5] During this time and in an effort to determine the cause and nature of his pain, the applicant underwent pulmonary, cardiology, stress, rheumatoid, and internal medicine consultations. At this time, however, the applicant was not referred to a specialist in the diagnosis and treatment of sarcoidosis to confirm the source of his pain was indeed a recurrence of his previously diagnosed condition.
[6] By May 1991, the applicant was in such severe pain, that as he states in his affidavit he "physically accosted" his physician and demanded he locate and treat the source of his pain. The applicant was transferred to the Walter Reed Army Medical Hospital in Washington, where tests revealed two fractured vertebrae and a spinal tumour.
[7] On May 29, 1991, a surgical team removed the tumour (which was found to be malignant), fused vertebrae, and inserted metal rods into the applicant's spine. The applicant then received chemotherapy and radiotherapy at the Walter Reed facility until July of 1993, at which time he was transferred back to Ottawa, where he continued his cancer treatment.
[8] The applicant states removal of the spinal tumour finally relieved the pain he had endured throughout the 1980's, and which had become severe by the 1990's.
[9] On November 18, 1992, the applicant filed for a disability pension pursuant to injuries suffered while in the Armed Forces and for alleged medical mismanagement of his condition: specifically, the less than timely diagnosis of his cancer. The applicant submits both his surgery and his resulting disability were more extensive than they would have been, had his cancer been detected and diagnosed sooner.
[10] This disability pension application has a long history, which for the sake of the record, I will recount briefly. In November 1992, the applicant filed for a disability pension based on back problems arising out of parachuting exercises performed while in the service and the medical mismanagement of his cancer diagnosis. Initially these claims were denied, but the applicant appealed and in April 1996, he received a pension of $252.63 per month for his parachuting related claim. In November 1996, the applicant advised his advocate that he wished to appeal the denial of pension related to the alleged untimely cancer diagnosis. In January 1997, Veterans Affairs Canada advised the applicant he would have to reapply to pursue this claim. The applicant filed such a claim, and by a letter dated August 14, 1997, the Entitlement Adjudicator advised him his claim was denied. On January 1, 1998, the applicant advised his advocate to appeal the Entitlement Adjudicator's decision. The appeal was heard by the Entitlement Review Panel on April 8, 1999 and denied May 6, 1999. On August 5, 1999, the applicant advised his advocate to appeal the May 6, 1999 decision. On October 13, 1999, the appeal was heard in Charlottetown P.E.I., and by letter dated November 1, 1999 the VRAB denied the appeal. The applicant then filed for this judicial review.
Standard of Review
[11] The standard of review of a decision of the VRAB is patent unreasonableness as in Metcalfe v. Canada [1999], F.C.J. No. 22. Therefore, a reviewing court may interfere only when the impugned decision was based on an error of law, or on an erroneous finding of fact made in a perverse and capricious manner, or without regard to the material before it as in MacDonald v. Canada (Attorney General) [1999], F.C.J. No. 346; Hall v. Canada (Attorney General) [1998], F.C.J. No. 890.
Legislative framework
[12] Both the Pension Act and the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 ("Act") govern decisions made with respect to veterans' pensions. Sections 3 and 39 of the Act, are particularly relevant:
| 3. The provisions of this 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 country so well and to their dependants may be fulfilled.
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3. Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s'interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l'égard de ceux qui ont si bien servi leur pays et des personnes à leur charge.
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| 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.
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39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve_:
a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci;
b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence;
c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande.
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Analysis
[13] The record that was before the VRAB shows the applicant's chest and back pain recurred in August 1990, and was immediately addressed with the re-prescription of the prednisone he had taken for his previously diagnosed sarcoidosis. But, the prednisone did not relieve the problem. In fact, the applicant's pain not only went unabated, but changed in nature and location. Despite these developments and the fact that the applicant mentioned them to his medical care providers, it was not until May 1991 and at the applicant's emphatic insistence that he was finally referred to an expert in the treatment of sarcoidosis. Instead, the applicant underwent other medical tests, which failed to identify the source of his pain. Upon his referral to the sarcoid expert, the source of his pain was identified without delay: cracked vertebrae and a spinal tumour-- multiple myeloma.
[14] In support of his pension applications and appeal, the applicant submitted medical opinions from Doctor T.C. Hurley, Captain, Regimental Medical Officer, 2 Regiment, Royal Canadian Horse Artillery, and Dr. H.F. Jaeger, Lieutenant-Colonel, Commanding Officer 2 Field Ambulance. On the appeal, Dr. Hurley provided an additional letter. Both doctors expressed the opinion that there was a delay in the multiple myeloma diagnosis and this delay may well have contributed to the extensive nature of the surgery and the severity of the resulting physical.
[15] In his letter dated December 21, 1998, Dr. Hurley states:
| ... Upon arrival in the new location, you began to experience increasing pain. ...you were treated as though the sarcoid was returning. I could find several consult notes expressing this opinion but no tests such as blood work or x-rays from this time (Aug 90). In retrospect this is probably a misdiagnosis - as your tumour was almost certainly present at this time but you were being treated for the sarcoid. There are other medical and surgical treatments for multiple myeloma. Unfortunately these were not offered to you... |
[16] Similarly, Dr. Jaeger notes in his letter to the applicant dated December 21, 1998:
| I concur with Capt Hurley's opinion that the diagnosis of your cancer was delayed and that this may have adversely affected your initial degree of disability and discomfort. It is problematic to speculate on the cause of this delay, but the focus on the previous diagnosis of sarcoidosis was certainly a factor. |
[17] In its reasons, the VRAB relies on the following statement made by Dr. Barry Clark, in his Pension Medical Advisory report:
| ...Following diagnosis the client underwent appropriate referral to specialists and was started on treatment for multiple myeloma in the form of melphalan and prednisone. There is no evidence of any medical mismanagement either in the diagnosis nor the treatment of the multiple myeloma in this client. |
The VRAB then notes:
| There is no medical opinion from Dr. Hurley nor from Dr. Jaeger that contradicts this. |
| In the absence of such evidence, the Board cannot conclude to an element of medical negligence in this case and pension entitlement is not indicated. |
[18] The VRAB states at page 7 of its reasons:
| ... to qualify the medical treatment the Appellant received as "medical mismanagement" the Board would have needed to receive an element of medical negligence from the medical interveners. There is no such evidence in Dr. Hurley's nor Dr. Jaeger's opinions. |
[19] But, indeed there is evidence. While the panel is correct that Drs. Hurley and Jaeger do not comment on the applicant's post-diagnostic treatment, the post-diagnostic care is not at issue. Drs. Hurley and Jaeger do state, however, that in their opinions, the multiple myeloma could probably have been detected in early fall, 1990, but it remained undetected until May 1991 when the applicant, after aggressively demanding effective medical intervention, was sent to a sarcoid specialist, who established without delay that the applicant was not suffering from what had been assumed to be a recurrence of sarcoidosis. This led quickly to the discovery of the fractured vertebrae and the spinal tumour.
[20] Further, at page 6, the VRAB reasons note:
| The Entitlement Review Panel also mentioned in its conclusion that Dr. Jaeger, in his letter of 19 December 1998 [sic], declared: "It is problematic to speculate on the cause of this delay." (In reference to the diagnosis of the claimed condition) |
The VRAB then builds on this excerpt from the decision below and states:
| It is one of the reasons why the Entitlement Review Panel concludes that the opinions were speculative. This conclusion remains true... |
[21] What Dr. Jaeger actually said in his December 21, 1998 letter was:
| ... It is problematic to speculate on the cause of this delay, but the focus on the previous diagnosis of sarcoidosis was certainly a factor. |
[22] In my view, the applicant's submission is correct in that the VRAB misconstrued this evidence. To extrapolate Dr. Jaeger's statement that he cannot account for the delay in the applicant's cancer diagnosis to encompass a broader scope, that is, that the entire opinion is speculative, is to misconstrue the evidence. Dr. Jaeger specifically states the focus on the previous diagnosis could account for the ten month time frame from the time the applicant complained of pain, and the time he was finally referred to a sarcoid expert, who with dispatch, uncovered the source of the pain.
[23] Further, both Dr. Hurley and Dr. Jaeger state the applicant's disease was probably present in a clinical, detectable stage for some months, possibly for six months to one year prior to its detection.
[24] The panel questioned neither the credibility nor the trustworthiness of the medical opinion of Drs. Hurley and Jaeger, but concluded they were speculative, and thus determined there was no evidence of medical mismanagement.
[25] In Metcalfe v Canada [1999], F.C.J. No. 22 this Court held:
| ... Although couched in terms of possibility and probability, the medical opinions of Drs. Baker and Werger can realistically go no further than saying that the applicant's hearing loss is consistent with exposure to the level of noise described to then by the applicant. Nonetheless, in my opinion the applicant produced sufficient credible evidence about the cause of his hearing loss that, if the Board had complied with the directions contained in section 39, it must in law have upheld his claim. |
[26] In this case, I am similarly of the view that the VRAB could have reached its conclusion only by ignoring the evidence of Drs. Hurley and Jaeger, misconstruing their evidence, or misdirecting itself as to the effect of section 39 of the Act, in the face of credible and trustworthy evidence. Although eluded by certainty, as in Metcalfe, supra, the VRAB had sufficient evidence to uphold the applicant's claim, had it complied with the directions of section 39.
[27] The applicant further submits the VRAB erred in law by placing the onus on him to show that the care he received in the diagnosis of his multiple myeloma fell below the standard of care. In Berneche v. Canada [1989], F.C.J. No. 62, the Federal Court of Appeal was faced with a pension denial decision that concluded:
| ... In the absence of medical opinion evidence to the effect that the 1978 surgery fell below the standard of care expected, this Board is reluctant to conclude that medical mismanagement did occur. |
Hugessen J. held:
| ... the Board clearly misplaced the onus of proof ... in the circumstances the burden was on the respondent to show that the applicant's condition was not due to the medical treatment he had received and that the latter had been of the requisite standard. |
[28] In the present case, the applicant put into evidence two medical opinions about the probable presence of his cancer at a time when the applicant could have been sent to a sarcoid specialist, rather than being instructed to recommence his earlier prescribed medication, then being sent to specialists in other fields. In his letter to the applicant, dated October 12, 1999 Dr. Hurley states:
| ... My professional impression is that the clinical course of your disease arose six to twelve months prior to your CT. I form this impression from two perspectives. To begin, the tumour visible on your CT was quite large suggesting its presence for several months. Secondly, the clinical notes from that time (late August 90 until May 91) indicate that your pain changed in nature and position... |
[29] The credibility and trustworthiness of the evidence of Drs. Hurley and Jaeger was never impugned. Therefore, as in Metcalfe, supra, and importantly, as the respondent itself acknowledges in its Memorandum of Fact and Law at paragraph 25: "Once the Applicant has submitted evidence regarding medical mismanagement, the burden of proof shifts to the Respondent to rebut that evidence." This shift in onus never occurred.
Conclusion
[30] This Court finds the VRAB arrived at a perverse conclusion as a result of having ignored and/or misconstrued the evidence of Drs. Hurley and Jaeger. It finds also that the VRAB erred in law by failing to reverse the onus of proof once the applicant produced evidence of medical mismanagement in the form of Dr. Hurley's and Dr. Jaeger's professional opinions. In light of the statutory mandate to resolve any doubt in the weighing of evidence in favour of the applicant as provided in sections 3 and 39 of the Act, the decision of the VRAB is set aside and the matter is remitted for a new hearing before a differently constituted panel. Costs, to be assessed, are awarded to the applicant.
"Dolores M. Hansen"
J.F.C.C.
Ottawa, Ontario
January 25, 2001
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