Date: 20021128
Docket: T-1688-01
Neutral citation: 2002 FCT 1233
Ottawa, Ontario, November 28, 2002
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
THE ESTATE OF YUAN VERCINGETORIX WOO
(aka JEAN-PAUL MARTINEAU)
and
GRACE LI XIU WOO
Applicants
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a reconsideration decision of the Veterans Review and Appeal Board of Canada (the "VRAB") rendered on June 26, 2001, which ruled that the applicant was not entitled to full pension benefits.
[2] The facts can be summarized as follows:
[3] The applicant is the surviving wife of the deceased pensioner, Mr. Woo. (born Jean-Paul Martineau, later changed his name to Yuan Vercingetorix Woo, hereinafter "Mr. Woo").
[4] Mr. Woo enrolled in the Royal Canadian Air Force on November 22, 1952 at the age of 17.
[5] On July 13, 1953, Mr. Woo fell 20 feet from an aircraft while he was performing his duties as a radar technician. He was unconscious for 10 hours and suffered various injuries.
[6] Mr. Woo was admitted to the Montreal Military Hospital for two weeks. After being released from hospital, he returned complaining of abdominal pain. He was investigated for appendicitis. In August of that year, he was treated for acute tonsillitis and he complained that he had a feeling of numbness in his head since his fall.
[7] In January of 1954, Mr. Woo was admitted again to the Montreal Military Hospital where he had surgery subsequent to acute gangrenous appendicitis with peritonitis secondary to perforation.
[8] In May of 1954, Mr. Woo was diagnosed with insomnia and depression on admission to the Queen Mary Veterans Hospital. He was noted to suffer from nervousness, insomnia, nightmares and had lost 30 pounds in three months. He was seen by psychologists and psychiatrists and varying diagnoses were rendered among them. At this time, Mr. Woo also received thirty insulin shock treatments.
[9] On September, 27, 1954, a release from military service on medical grounds was recommended.
[10] On November 25, 1954, Mr. Woo was given a medical discharge from military service.
[11] On July 11, 1955, Mr. Woo applied for a pension, complaining of headaches, nervousness and insomnia. He was admitted to neurosurgery.
[12] In August of 1955, Mr. Woo was diagnosed with early schizophrenia. He was also considered to be depressed and suicidal.
[13] On June 19, 1956, Mr. Woo was awarded pension entitlement by the Canadian Pension Commission, (the "CPC"). In its decision, the CPC held that the nervous condition under review was inherent in Mr. Woo's makeup. However, the CPC also concluded that the onset of schizophrenia could have been triggered by his fall during his military service. As such, it awarded Mr. Woo a partial two-fifths pension entitlement, resolving any doubt in his favour.
[14] In November of 1956, two psychiatrists, following a psychological examination, rendered a diagnosis of progressive schizophrenia. Mr. Woo's disability condition was assessed at 75%. Since the aggravation had been ruled to be connected to his military service in the proportion two-fifths, he was allowed a 30% pension (2/5 x 75 = 30%).
[15] In February of 1957, Mr. Woo's disability assessment was increased to 100% and pensioned at 40% (2/5 x 100= 40%).
[16] A few months before Mr. Woo's death (of lung cancer) on August 20, 1996, the applicant requested and filed an application for pension as surviving spouse before the Department of Veterans Affairs (the "Department").
[17] She requested that the 60% disqualification applied to her husband's pension (as a result of the 2/5 entitlement) be removed because of the mischaracterization of his disability. According to the applicant, her husband's disability was caused by his accident and subsequent treatment in the Canadian armed forces, and not by schizophrenia.
[18] On October 22, 1996, the Department confirmed the assessment as previously awarded in 1956.
[19] In its decision, the Department considered the service records and the Departmental records. It found that there had been no Report on Injuries or Board of Inquiry completed on the injury sustained by Mr. Woo after his accident. Based on the evidence presented, the Department held that the disability of schizophrenia diagnosed during Regular Force Service was pre-enlistment in nature. It also concluded that the injury claimed to have been responsible for the onset of the applicant's symptoms in 1954 was not shown to be duty related, nor were other service factors shown to be responsible for aggravating the disability. Nevertheless, the Department held that the pension should be continued as previously awarded.
[20] The applicant was dissatisfied with the Department's decision and applied for a review of the decision before the VRAB pursuant to section 18 of the Veterans Review and Appeal Board Act, S.C. 1995, c-18 (the "Act").
[21] On April 10, 1997, the Review panel of the VRAB conducted a hearing and concluded that the pension entitlement should remain the same. It considered the evidence and held that since the schizophrenia condition was pre-enlistment in origin and not related to trauma, the entitlement of two-fifths already awarded was generous in the circumstances and should not be increased.
[22] The applicant applied for an appeal of this decision.
[23] On July 30, 1998, the Appeal panel of the VRAB conducted a hearing. After the hearing, the Board solicited a medical opinion from Dr. Déziel. According to Dr. Déziel, there was no correlation between schizophrenia and cranial injury suffered from a fall. His medical opinion was that Mr. Woo began to suffer from schizophrenia in April or June of 1954, and that this was not related to his fall in July of 1953.
[24] Based on the medical evidence, the Board held that it was beyond a reasonable doubt that Mr. Woo's condition of schizophrenia was pre-enlistment in nature. As a result, it confirmed the decision of the Review panel of the VRAB.
[25] The applicant then filed an application for judicial review of this decision.
[26] On October 13, 2000, the applicant, represented by counsel, discontinued the application for judicial review as a settlement was reached by both parties that the applicant would rather file new evidence before the VRAB in a reconsideration process.
[27] The applicant's new evidence was in the form of medical evidence adduced by Dr. Frank and Dr. Ng.
[28] Dr. Frank, a psychiatric expert, reviewed Mr. Woo's file and concluded that Mr. Woo did not suffer from schizophrenia, but rather from post-traumatic stress disorder. In his opinion, Mr. Woo's psychological condition was most likely caused by the stresses he suffered while in military service.
[29] Dr. Ng attended Mr. Woo from April 25, 1996 until his death in August 20, 1996. In his examination of medical reports, Dr. Ng did not find any evidence that Mr. Woo was schizophrenic or mentally unstable before the concussion suffered in July 1953. He also concluded that Mr. Woo suffered from brain trauma that could have been misdiagnosed in the 1950s as schizophrenia.
[30] The VRAB appeal panel on reconsideration, conducted a hearing on April 9, 2001. In its decision dated June 26, 2001, the Board confirmed the July 30, 1998 decision, and upheld the two-fifths pension entitlement.
[31] The application for judicial review in the case at bar is challenging this decision of June 26, 2001.
VRAB APPEAL PANEL DECISION
[32] The Board reviewed all the available documented evidence, and assessed the new medical evidence of Dr. Frank and Dr. Ng. A summary of the Board's decision is as follows:
Relationship to Military Service
[33] Under subsection 21(2) of the Pension Act, pension entitlement is awarded for a disease or injury which was incurred or is directly connected to the Regular Force service. The Board found that there was no documented evidence that Mr. Woo fell in the performance of his duty or that the injury in 1953 was incurred or directly related to his military service. According to the evidence on file, the accident was not reported, there was no report of inquiry on the accident and there was no witness report.
Physical consequences due to the fall in 1953
[34] The Board considered the applicant's argument that it was Mr. Woo's fall in 1953 which led to his disability. It found that there was no evidence that Mr. Woo suffered from organic brain syndrom or other physical damage to his brain as a result of the fall. A series of skull X-rays after the injury in 1953 showed no skull fracture or depression of the skull. A medical opinion dated July 28, 1953 stated that there was no sign of cerebellar or labyrinthine disease. Again in August 1953, there was no evidence of residual cerebral damage and no epileptiform activity was recorded. In May 1954, an EEG showed no sign of organic damage. No evidence of organic damage to the brain was recorded after 1954.
Pre-Enlistment Condition
[35] The Board analysed the decision of the CPC rendered in 1956. The decision of the CPC was predicated on the fact that although the onset of schizophrenia could have been triggered by Mr. Woo's fall, there was also a generally accepted medical consensus that genetic factors played an important role in the etiology of schizophrenia. According to the CPC, Mr. Woo's condition was likely pre-enlistment and inherent in his makeup.
[36] Although the applicant argued that there was no evidence that Mr. Woo suffered from a pre-enlistment condition, the Board held that there was no medical evidence to contradict this. It consulted the Merck Manual and the Diagnostic and Statistical Manual of Mental Disorders (the "DSM-IV") and found that the current medical consensus still held that there was a genetic as well as an environmental component to schizophrenia. Full entitlement was not granted to Mr. Woo in 1956 because it was generally accepted that there was a biological basis to the disease. However, partial entitlement was awarded because it was also accepted that various environmental stressors could trigger the emergence or recurrence of symptoms in vulnerable persons.
The Diagnosis - Schizophrenia or Other
[37] The Board assessed the medical opinions of Dr. Frank and Dr. Ng. Dr. Frank had stated that the achievements of Mr. Woo in marriage and in business argued strongly against schizophrenia, as individuals with schizophrenia are very rarely able to get married or hold gainful employment. However, the Board held that there was also other evidence which indicated that Mr. Woo was unable to care of himself and that he exhibited behaviour that was consistent with individuals who suffered from schizophrenia.
[38] The Board expressed concern with Dr. Frank's diagnosis that Mr. Woo suffered from post-traumatic stress disorder, as this diagnosis was not supported by an evaluation according to the criteria of the DSM-IV or a medical examination. It also noted that Dr. Frank had enumerated several factors which could have contributed to Mr. Woo's condition. Based on the information provided by Dr. Frank, the Board concluded that there was insufficient evidence to find that Mr. Woo suffered from post-traumatic stress disorder.
[39] The Board also gave little weight to the medical opinion of Dr. Ng, as it did not contain a valid and complete anamnesis, an essential component of a valid medical opinion.
Employment Record
[40] The Board reviewed Mr. Woo's employment record after his release from the military in 1954, and found that he was employed in various positions for short periods of time. It found that this was consistent with Dr. Frank's opinion that persons suffering from schizophrenia very rarely hold gainful employment.
Interpersonal Relationships
[41] Based on Dr. Frank's opinion that individuals with schizophrenia would have fragile and impaired relationships, the Board reviewed the documentation from 1954 to 1968 and found that Mr. Woo's behaviour during that time period was consistent with those of people with schizophrenia. He did not hold a steady job, did not have stability in his marital relationships and often could not handle his own affairs.
Insulin Coma Therapy
[42] The Board considered the applicant's argument which alleged that insulin coma treatments (approximately 30) which Mr. Woo received in 1954, eight months after his fall, were part of an experiment, and largely contributed to his mental problems. It found no evidence on file of maltreatment or experimental trials.
[43] The Board also referred to an article entitled "The History of Shock Therapy in Psychiatry", written by Renato M.E. Sabbatni, PhD in neurophysiology in Behaviour. This article indicated that at the time, insulin shock therapy was a practical and workable physiological method to attack schizophrenia and that some patients managed to improve after the therapy.
Reasons and Conclusion
[44] The Board, having reviewed all the information at its disposal and taking into consideration the new medical evidence, held that in the absence of a medical evaluation of Mr. Woo, there was insufficient medical evidence to show that Mr. Woo suffered from post-traumatic stress disorder.
[45] The Board held that the facts and events recorded between the mid 1950s and 1972 suggest that Mr. Woo suffered from mental illness. It also concluded that the diagnosis of schizophrenia rendered in 1954 in Montreal, confirmed in 1961 and 1962 by Dr. Dufresne in Paris, and confirmed in 1964 at the Psychiatric Clinic of the Queen Mary Veterans Hospital was credible in the circumstances.
[46] Based on all the available evidence, the Board concluded that the diagnosis of schizophrenia flowed from the facts in this matter and that a change in diagnosis was not warranted in the circumstances. It held that there was no evidence adduced that would indicate that an error of fact or law had been made, and the new evidence did not allow it to conclude that an increase in the pension proportion was justified.
[47] As a result, the Board confirmed the entitlement appeal decision of July 30, 1998.
LEGISLATIVE FRAMEWORK
[48] In 1995, Parliament made changes to the structure of the appeal and review process for the pensions of war veterans. Under the Act, the Veterans Review and Appeal Board replaced the Veterans Appeal Board, the Pension Review Board, and the War Veterans Allowance Board. The VRAB now acts as the sole review and appeal authority for the pensions of war veterans.
[49] Section 3 of the Act sets out an overriding framework for the pensions of war veterans. It reads as follows:
| 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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[50] Section 39 of the Act governs the use of evidence in an application. It reads as follows:
| 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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[51] The Act contains a privative clause in section 31, as well as a provision in section 32, allowing for reconsideration of an application already heard. These provisions read as follows:
| 31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
32. (1) Notwithstanding section 31, an appeal panel may, on its own motion, reconsider a decision made by it under subsection 29(1) or this section and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law, or may do so on application if the person making the application alleges that an error was made with respect to any finding of fact or the interpretation of any law or if new evidence is presented to the appeal panel.
(2) The Board may exercise the powers of an appeal panel under subsection (1) if the members of the appeal panel have ceased to hold office as members.
(3) Sections 28 and 31 apply, with such modifications as the circumstances require, with respect to an application made under subsection (1).
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31. La décision de la majorité des membres du comité d'appel vaut décision du Tribunal; elle est définitive et exécutoire.
32. (1) Par dérogation à l'article 31, le comité d'appel peut, de son propre chef, réexaminer une décision rendue en vertu du paragraphe 29(1) ou du présent article et soit la confirmer, soit l'annuler ou la modifier s'il constate que les conclusions sur les faits ou l'interprétation du droit étaient erronées; il peut aussi le faire sur demande si l'auteur de la demande allègue que les conclusions sur les faits ou l'interprétation du droit étaient erronées ou si de nouveaux éléments de preuve lui sont présentés.
2) Le Tribunal, dans les cas où les membres du comité ont cessé d'exercer leur charge, peut exercer les fonctions du comité visées au paragraphe (1).
(3) Les articles 28 et 31 régissent, avec les adaptations de circonstance, les demandes adressées au Tribunal dans le cadre du paragraphe (1).
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[52] Under section 111 of the Act, the VRAB may reconsider the earlier decision on two broad grounds: on application if new evidence is presented to it, or on its own motions for errors in fact or law. Section 111 reads as follows:
| 111. The Veterans Review and Appeal Board may, on its own motion, reconsider any decision of the Veterans Appeal Board, the Pension Review Board, the War Veterans Allowance Board, or an Assessment Board or an Entitlement Board as defined in section 79 of the Pension Act, and may either confirm the decision or amend or rescind the decision if it determines that an error was made with respect to any finding of fact or the interpretation of any law, or may, in the case of any decision of the Veterans Appeal Board, the Pension Review Board or the War Veterans Allowance Board, do so on application if new evidence is presented to it.
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111. Le Tribunal des anciens combattants (révision et appel) est habilité à réexaminer toute décision du Tribunal d'appel des anciens combattants, du Conseil de révision des pensions, de la Commission des allocations aux anciens combattants ou d'un comité d'évaluation ou d'examen, au sens de l'article 79 de la Loi sur les pensions, et soit à la confirmer, soit à l'annuler ou à la modifier comme s'il avait lui-même rendu la décision en cause s'il constate que les conclusions sur les faits ou l'interprétation du droit étaient erronées; s'agissant d'une décision du Tribunal d'appel, du Conseil ou de la Commission, il peut aussi le faire sur demande si de nouveaux éléments de preuve lui sont présentés.
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[53] Finally, the following provisions in section 21 of the Pension Act, R.S. 1985, c. P-6, (the "Pension Act") are relevant to this application:
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21(2) Service in militia or reserve army and in peace time
(2) In respect of military service rendered in the non-permanent active militia or in the reserve army during World War II and in respect of military service in peace time,
(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall, on application, be awarded to or in respect of the member in accordance with the rates for basic and additional pension set out in Schedule I;
(b) where a member of the forces dies as a result of an injury or disease or an aggravation thereof that arose out of or was directly connected with such military service, a pension shall be awarded in respect of the member in accordance with the rates set out in Schedule II;
(c) where a member of the forces is in receipt of an additional pension under paragraph (a), subsection (5) or section 36 in respect of a spouse or common-law partner who is living with the member and the spouse or common-law partner dies, except where an award is payable under subsection 34(8), the additional pension in respect of the spouse or common-law partner shall continue to be paid for a period of one year from the end of the month in which the spouse or common-law partner died or, if an additional pension in respect of another spouse or common-law partner is awarded to the member commencing during that period, until the date that it so commences; and
(d) where, in respect of a survivor who was living with the member of the forces at the time of that member's death,
(i) the pension payable under paragraph (b) is less than
(ii) the aggregate of the basic pension and the additional pension for a spouse or common-law partner payable to the member under paragraph (a), subsection (5) or section 36 at the time of the member's death,
a pension equal to the amount described in subparagraph (ii) shall be paid to the survivor in lieu of the pension payable under paragraph (b) for a period of one year commencing on the effective date of award as provided in section 56 (except that the words "from the day following the date of death" in subparagraph 56(1)(a)(i) shall be read as "from the first day of the month following the month of the member's death"), and thereafter a pension shall be paid to the survivor in accordance with the rates set out in Schedule II.
21(2.1) Pensionable fraction of aggravated disability
(2.1) Where a pension is awarded in respect of a disability resulting from the aggravation of an injury or disease, only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated is pensionable.
21(3) Presumption
(3) 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 duties and the place of that activity;
(c) the transportation of the member, in the course of duties, in a military vessel, vehicle or aircraft or by any means of transportation authorized by a military authority, or any act done or action taken by the member or any other person that was incidental to or directly connected with that transportation;
(d) the transportation of the member while on authorized leave by any means authorized by a military authority, other than public transportation, between the place the member normally performed duties and the place at which the member was to take leave or a place at which public transportation was available;
(e) service in an area in which the prevalence of the disease contracted by the member, or that aggravated an existing disease or injury of the member, constituted a health hazard to persons in that area;
(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and
(g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof.
21(5) Consequential disability
(5) In addition to any pension awarded under subsection (1) or (2), a member of the forces who
(a) is eligible for a pension under paragraph (1)(a) or (2)(a) or this subsection in respect of an injury or disease or an aggravation thereof, or has suffered an injury or disease or an aggravation thereof that would be pensionable under that provision if it had resulted in a disability, and
(b) is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph (a) shall, on application, be awarded a pension in accordance with the rates for basic and additional pension set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.
21(9) Presumption as to medical condition of member on enlistment
(9) Subject to subsection (10), where a disability or disabling condition of a member of the forces in respect of which the member has applied for an award was not obvious at the time he or she became a member and was not recorded on medical examination prior to enlistment, that member shall be presumed to have been in the medical condition found on his or her enlistment medical examination unless there is
(a) recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or
(b) medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member.
21(10)Information volunteered by member as to medical condition to be corroborated
(10) Information given by a member of the forces at the time of the enlistment of the member with respect to a disability or disabling condition is not evidence that the disability or disabling condition existed prior to the enlistment of the member unless there is corroborating evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the time the member became a member of the forces.
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[...]
Milice active non permanente ou armée de réserve en temps de paix
(2) En ce qui concerne le service militaire accompli dans la milice active non permanente ou dans l'armée de réserve pendant la Seconde Guerre mondiale ou le service militaire en temps de paix_:
a) des pensions sont, sur demande, accordées aux membres des forces ou à leur égard, conformément aux taux prévus à l'annexe I pour les pensions de base ou supplémentaires, en cas d'invalidité causée par une blessure ou maladie - ou son aggravation - consécutive ou rattachée directement au service militaire;
b) des pensions sont accordées à l'égard des membres des forces, conformément aux taux prévus à l'annexe II, en cas de décès causé par une blessure ou maladie - ou son aggravation - consécutive ou rattachée directement au service militaire;
c) sauf si une compensation est payable aux termes du paragraphe 34(8), la pension supplémentaire que reçoit un membre des forces en application de l'alinéa a), du paragraphe (5) ou de l'article 36 continue d'être versée pendant l'année qui suit la fin du mois du décès de l'époux ou du conjoint de fait avec qui il cohabitait alors ou, le cas échéant, jusqu'au versement de la pension supplémentaire accordée pendant cette année à l'égard d'un autre époux ou conjoint de fait;
d) d'une part, une pension égale à la somme visée au sous-alinéa (ii) est payée au survivant qui vivait avec le membre des forces au moment du décès au lieu de la pension visée à l'alinéa b) pendant une période d'un an à compter de la date depuis laquelle une pension est payable aux termes de l'article 56 - sauf que pour l'application du présent alinéa, la mention « _si elle est postérieure, la date du lendemain du décès_ » à l'alinéa 56(1)a) doit s'interpréter comme signifiant « _s'il est postérieur, le premier jour du mois suivant celui au cours duquel est survenu le décès_ » - d'autre part, après cette année, la pension payée au survivant l'est conformément aux taux prévus à l'annexe II, lorsque, à l'égard de celui-ci, le premier des montants suivants est inférieur au second_:
(i) la pension payable en application de l'alinéa b),
(ii) la somme de la pension de base et de la pension supplémentaire pour un époux ou conjoint de fait qui, à son décès, est payable au membre en application de l'alinéa a), du paragraphe (5) ou de l'article 36.
21(2.1) Aggravation
(2.1) En cas d'invalidité résultant de l'aggravation d'une blessure ou maladie, seule la fraction - calculée en cinquièmes - du degré total d'invalidité qui représente l'aggravation peut donner droit à une pension.
21(3) Présomption
(3) 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;
c) soit du transport du membre des forces, à l'occasion de ses fonctions, dans un bâtiment, véhicule ou aéronef militaire ou par quelque autre moyen de transport autorisé par une autorité militaire, soit d'un acte fait ou d'une mesure prise par le membre des forces ou une autre personne lorsque cet acte ou cette mesure était accessoire ou se rattachait directement à ce transport;
d) du transport du membre des forces au cours d'une permission par quelque moyen autorisé par une autorité militaire, autre qu'un moyen de transport public, entre le lieu où il exerçait normalement ses fonctions et soit le lieu où il devait passer son congé, soit un lieu où un moyen de transport public était disponible;
e) du service dans une zone où la fréquence des cas de la maladie contractée par le membre des forces ou qui a aggravé une maladie ou blessure dont souffrait déjà le membre des forces, constituait un risque pour la santé des personnes se trouvant dans cette zone;
f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces;
g) de l'exercice, par le membre des forces, de fonctions qui ont exposé celui-ci à des risques découlant de l'environnement qui auraient raisonnablement pu causer la maladie ou la blessure ou son aggravation.
21(5) Pension pour invalidité supplémentaire
(5) En plus de toute pension accordée au titre des paragraphes (1) ou (2), une pension est accordée conformément aux taux indiqués à l'annexe I pour les pensions de base ou supplémentaires, sur demande, à un membre des forces, relativement au degré d'invalidité supplémentaire qui résulte de son état, dans le cas où_:
a) d'une part, il est admissible à une pension au titre des alinéas (1)a) ou (2)a) ou du présent paragraphe, ou a subi une blessure ou une maladie - ou une aggravation de celle-ci - qui aurait donné droit à une pension à ce titre si elle avait entraîné une invalidité;
b) d'autre part, il est frappé d'une invalidité supplémentaire résultant, en tout ou en partie, de la blessure, maladie ou aggravation qui donne ou aurait donné droit à la pension.
21(9) Présomption quant à l'état de santé du membre au moment de l'enrôlement
(9) Sous réserve du paragraphe (10), lorsqu'une invalidité ou une affection entraînant incapacité d'un membre des forces pour laquelle il a demandé l'attribution d'une compensation n'était pas évidente au moment où il est devenu membre des forces et n'a pas été consignée lors d'un examen médical avant l'enrôlement, l'état de santé de ce membre est présumé avoir été celui qui a été constaté lors de l'examen médical, sauf dans les cas suivants_:
a) il a été consigné une preuve que l'invalidité ou l'affection entraînant incapacité a été diagnostiquée dans les trois mois qui ont suivi son enrôlement;
b) il est établi par une preuve médicale, hors de tout doute raisonnable, que l'invalidité ou l'affection entraînant incapacité existait avant son enrôlement.
21(10) Corroboration nécessaire à l'égard des renseignements fournis volontairement par un membre quant à son état de santé
(10) Les renseignements fournis par un membre des forces au moment de son enrôlement en ce qui concerne une invalidité ou une affection entraînant incapacité ne constituent pas une preuve que l'invalidité ou l'affection entraînant l'incapacité existait avant son enrôlement sauf si ces renseignements sont corroborés par une preuve qui établit, hors de tout doute raisonnable, que l'invalidité ou l'affection entraînant incapacité existait avant son enrôlement.
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ANALYSIS
[54] The determination of whether Mr. Woo's disability was the result of schizophrenia or some other illness involves a finding of fact. Although the Board is not an expert in medical matters, I am of the opinion that it should still be accorded considerable deference. In MacNeill v. Canada, [1998] F.C.J. No. 1115, Nadon J. held at para. 22:
Even though the Board may not have expertise in medical matters, weighing evidence and issues of credibility remain in the domain of the Board and should not be disturbed by the Court acting in review unless it can be demonstrated that a reviewable error exists.
[55] This Court has held that in light of the legislative framework which confers exclusive jurisdiction on the Veterans Review and Appeal Board, as well as the privative clause which renders its decision final and binding, the applicable standard of review is that of patent unreasonableness (Weare v. Canada (Attorney General), [1998] F.C.J. No. 1145). Consequently, interference is only warranted if I find that the decision of the Board was based on an error of law, or on an erroneous finding of fact made in a perverse or capricious manner without regard to the material before it.
[56] This case involves the judicial review of a reconsideration decision of the VRAB. When conducting a reconsideration hearing under section 111 of the Act, the VRAB considers the new evidence along with the evidence that was obtained in the previous decision. Similarly, when conducting a judicial review application, the Court looks at the new evidence that was submitted in the reconsideration, and contrasts it with the evidence that had been obtained previously.
[57] In the case at bar, new medical evidence was submitted in the form of medical opinions from Dr. Frank and Dr. Ng. They opined that Mr. Woo's disability was the result of post-traumatic stress disorder. This is contrary to the diagnosis of schizophrenia given in 1956 by Dr. Koranyi, and that given in 1961 and 1962 by Doctor Dufresne. This Court has held that when the Board is faced with conflicting evidence, it must weigh the evidence with regards to its statutory obligations found in sections 3 and 39 of the Act. (MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346). The Board therefore had the duty to review and weigh the new medical evidence submitted by the applicant, and to resolve any doubt in favour of the applicant.
[58] The applicant emphasizes the fact that her late husband, Mr. Woo, was listed as healthy on his Medical Entrance exam, and that he did not suffer from any pre-enlistment condition. As a result, pursuant to subsection 21(9) of the Pension Act, the applicant argues that the Board would have had to have proof beyond a reasonable doubt that Mr. Woo suffered from schizophrenia prior to his enlistment in the military. According to the applicant, the Board erred in law by founding its conclusion on a "possibility" that Mr. Woo suffered from schizophrenia, when the standard of proof required is "beyond a reasonable doubt".
[59] I agree with the applicant that based on the heavy burden imposed by subsection 21(9), the Board was unable to conclude that the condition of schizophrenia existed prior to Mr. Woo's enlistment. Nevertheless, the healthy condition listed in Mr. Woo's medical entrance exam does not change the analysis the Board was required to do. According to subsection 21(9) of the Pension Act, proof beyond a reasonable doubt that a disabling condition existed prior to the enlistment of the member is required when a healthy condition is recorded on the medical entrance exam. In the case at bar, however, there was medical evidence that Mr. Woo suffered from schizophrenia after his enlistment and discharge from the military. Therefore, the question of whether he suffered from schizophrenia prior to his enlistment is not the determinative issue in this case. Even assuming that Mr. Woo was healthy prior to his enlistment, the Board was still required to assess and weigh the conflicting medical evidence to determine whether Mr. Woo's disability was the result of schizophrenia, or some other illness.
[60] This Court has held that notwithstanding sections 3 and 39 of the Act, an applicant still bears the onus of providing credible, reasonable evidence to establish her claim. In Hall v. Canada (Attorney General), [1998] F.C.J. No. 890, Reed J. held at para. 19:
While the applicant correctly asserts that uncontradicted evidence by him should be accepted unless a lack of credibility finding is made, and that every reasonable inference should be drawn, and any reasonable doubt resolved in his favour, he still has the obligation to demonstrate that the medical difficulty from which he now suffers arouse out of or in connection with his military service; that is, the causal linkage must be established. [My emphasis.]
[61] The crux of the applicant's case is that Mr. Woo's disability was caused solely by his fall in 1953. In an attempt to prove this, she presented new medical evidence which opined that Mr. Woo suffered from post-traumatic stress disorder. The Board was required to assess and weigh the new medical evidence submitted by the applicant, along with the previous medical opinions that had diagnosed Mr. Woo as schizophrenic, to determine whether a change of diagnosis was warranted in the circumstances.
[62] This Court has held that when faced with contradictory medical evidence, the Board is entitled to reject medical evidence which it does not find credible, or where it provides reasons for its rejection of the evidence. (Kripps v. Canada (Attorney General), [2002] F.C.J. No. 742). The Board dismissed the medical opinion of Dr. Ng, because it did not contain a valid and complete anamnesis (a medical or psychiatric patient history), an essential component of a valid medical opinion. It also did not accept Dr. Frank's diagnosis of post-traumatic stress disorder, as it was not supported by an evaluation according to the criteria of the DSM-IV or a medical examination of Mr. Woo.
[63] Furthermore, it was even questionable under Dr. Frank's medical opinion whether Mr. Woo's disability was service related. Dr. Frank's medical opinion was intended to establish that Mr. Woo's disability was the result of post-traumatic stress disorder, caused by his fall in 1953. Yet, in his report, Dr. Frank acknowledges that there are numerous factors that could have contributed to the post-traumatic stress disorder, some of which are not related to Mr. Woo's military service.
[64] The Board also noted that there was no pension medical examination of Mr. Woo held between 1964 and 1996 that it could review. In light of the unreliability of the medical evidence submitted by the applicant, and the absence of a medical examination of Mr. Woo between 1964 and 1996, the Board dismissed the diagnosis of post-traumatic stress disorder.
[65] In my opinion, the Board properly assessed and weighed the medical evidence. In its analysis, the Board was mindful of its statutory obligation to liberally construe and interpret all legislation, and to resolve any doubt in weighing evidence, in favour of the applicant. However, based on the new medical evidence submitted by the applicant, it was not satisfied that the diagnosis of schizophrenia should be overturned. It also had concerns over whether there was a connection between Mr. Woo's disability and his military service. Nevertheless, it gave the applicant the benefit of the doubt and maintained the pension entitlement of two-fifths as previously awarded. I cannot find that the Board's decision was patently unreasonable.
[66] The applicant also argues that the Board was biased against her. As three of the five panel members were the same members that had rendered the previous decision of the hearing of July 30, 1998, the applicant contends that the Board had already supported a negative finding prior to making its decision, and was prepared to go to any length to disqualify her.
[67] The applicant highlights the fact that the Board prevented her from having Dr. Frank present at the hearing, but yet, chose to cross-examine her on the contents of his opinion. According to the applicant, the Board's use of cross-examination is indicative of its bias. Furthermore, she argues that the Board applied a variable standard with regard to the medical evidence. While Dr. Frank's expert assessment was rejected on the basis that he had not examined Mr. Woo, the members of the Board relied on the opinion of Dr. Déziel, and on their own assessment, when neither of them had examined Mr. Woo.
[68] The use of the same panel members for the reconsideration hearing is in accordance with the Act and does not suggest that the Board was biased. Subsection 32(2) of the Act indicates that a reconsideration of a decision is heard by the members who were present at the first hearing. Therefore, I do not accept that the use of the same panel members gives rise to a reasonable apprehension of bias.
[69] Furthermore, the applicant was asked at the hearing if she accepted the composition of the panel, which she did:
I'm concerned in a way because this kind of appeal does not accord with the principle of neutrality and fundamental justice. But I believe that this is the best that you can do with the legislation that's in place. So I believe that you're doing your best with the instruments ... the legal instruments that are available to you and so we accept this panel. Thank you.
Respondent's Supplementary Record, at p. 6.
[70] With regard to the applicant's request to have Dr. Frank present at the hearing, subsections 28(2) and 32(3) of the Act indicate that only documented evidence can be submitted to the appeal panel on a reconsideration. Accordingly, Dr. Frank was not permitted to attend the reconsideration and the Board's decision to deny the applicant's request was well-founded in law.
[71] I also cannot accept the applicant's submission that the Board's use of cross-examination was indicative of its bias. In my view, the applicant's arguments are derived from her misunderstanding of the procedures employed by the VRAB. The VRAB is a non-adversarial tribunal. This means that the VRAB is not a tribunal which hears arguments from opposing sides. Rather, the VRAB makes its own inquiry in order to reach a decision. As such, it was legitimate for the Board to question, or cross-examine the applicant on aspects of her case.
[72] The applicant's argument that the Board applied a variable standard with regard to the medical evidence is also without merit. Firstly, the opinion of Dr. Déziel was not relied upon by the Board in its decision of June 26, 2001. Secondly, the Board did not reject Dr. Frank's assessment simply because he had not examined Mr. Woo. Rather, it rejected Dr. Frank's assessment based on a number of factors, including the lack of a valid and complete anamnesis, and the fact that there was insufficient medical evidence to show that Mr. Woo suffered from post-traumatic stress disorder. Thirdly, the Board members did not conduct their own medical assessment of Mr. Woo. Rather, they assessed the new evidence submitted by the applicant, and considered whether it was sufficient to overturn the previous diagnosis of schizophrenia.
[73] The applicant further argues that in its decision, the Board relied on the following documents that were not disclosed to her: documents from the National Archives; six volumes of Mr. Woo's medical files; the Merck Manual and the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); the Federal Court decision of McTague v. Attorney of General; and an article entitled "The History of Shock Therapy in Psychiatry". She submits that it is contrary to the rules of natural justice for a tribunal to base its decision on information that was not presented prior to the hearing such that the applicant is deprived of a fair opportunity to correct and contradict it.
[74] In my view, the use of the above documents in the Board's decision does not give rise to a breach of the applicant's right to procedural fairness. The applicant had previously had access to the documents from the National Archives, the six volumes of Mr. Woo's medical files, and the Merck Manual. Therefore, the use of these documents in the Board's decision would not have come as a surprise to the applicant. Although the DSM-IV was not referred to in the hearing, Dr. Frank, given his qualifications in medicine, would have known the manual.
[75] The use of the McTague decision, likewise, does not give rise to a breach of procedural fairness. This is part of the jurisprudence and the Board is entitled to refer to the Court's decision in interpreting relevant legislative schemes. The Board is entitled to interpret the legislation and to refer to court decisions.
[76] Finally, in my opinion, the use of the article on shock therapy in the Board's decision does not give rise to a breach of procedural fairness. The Board referred to this article to illustrate that at the time, physicians felt that insulin shock therapy was an acceptable form of treatment for patients suffering from schizophrenia, and that some patients even benefited from the treatment. The determinative issue for the Board, however, was not the merits of insulin shock therapy but rather, whether there was evidence that Mr. Woo's disability was aggravated by the insulin shock treatments. The Board held that there was no evidence that would indicate that this therapy contributed to Mr. Woo's disability. As such, the article was only used as background information on insulin shock therapy, and did not prejudice the accused so as to give rise to a breach of procedural fairness.
[77] Having considered the applicant's submissions regarding bias, I am of the opinion that they are without merit. There is no evidence that the Board was biased or that its comments were perverse or capricious.
[78] The remainder of the applicant's arguments deal with improprieties that she alleges, occurred in the previous VRAB decisions. She argues that the VRAB erred when following the hearing of July 30, 1998, it sought an opinion from Dr. Déziel, a member of the Department of Veterans Affairs. She also contends that the VRAB erred in law when it prevented her from cross-examining Dr. Déziel. Finally, the applicant argues that Minister erred in law by failing to assist her, contrary to his statutory obligation under the Pension Act.
[79] In my view, these allegations do not pertain to this application of judicial review. Dr. Déziel's opinion was not the basis of the Board's decision of June 26, 2001. As such, there was no prejudice caused to the applicant.
[80] Furthermore, if the applicant believed that there had been some impropriety following the hearing of July 30, 1998, these concerns should have been raised at the hearing of April 9, 2001. In Hudon v. Attorney General of Canada, [2001] F.C.J. No. 1836, this Court reiterated that questions of infringement of the rules of natural justice should be raised before the tribunal in question, as the tribunal hearing the case is in the best position to intervene from the outset. By failing to raise these arguments at the hearing, the applicant waived her right to make them.
[81] Finally, the VRAB is an independent tribunal established pursuant to section 4 of the Act. It is not bound by the actions of the Minister's employees. Consequently, I find that the applicant's arguments pertaining to the Minister's failure to exercise his statutory duties are not applicable in this application for judicial review.
CONCLUSION
[82] In spite of her able submissions, the applicant has not convinced me that there is any basis for the Court to intervene. In the reconsideration hearing, the applicant presented new evidence in the form of medical opinions from Dr. Frank and Dr. Ng. They opined that Mr. Woo's disability was the result of post-traumatic stress disorder, not schizophrenia. This was in contrast to previous medical evidence of psychologists and psychiatrists who had personally examined Mr. Woo, and who had diagnosed him as schizophrenic.
[83] Faced with this conflicting medical evidence, the task of the Board was to assess and weigh the evidence. While the Board has a statutory obligation to resolve any doubt in favour of the applicant, it was not satisfied that the applicant's medical evidence was sufficiently reliable to tip the scales in her favour.
[84] I am satisfied that the Board properly assessed and weighed the medical evidence. It gave reasons for dismissing the new medical evidence presented by the applicant. There was also no indicia or evidence of bias on the part of the Board. I cannot find that the Board committed any error of law or fact in its decision, nor that its conclusions were patently unreasonable.
[85] For all these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1688-01
STYLE OF CAUSE:
THE ESTATE OF YUAN VERCINGETORIX WOO
(AKA JEAN-PAUL MARTINEAU)
and
GRACE LI XIU WOO
Applicants
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 31, 2002
REASONS FOR ORDER AND ORDER OF
THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: November 28, 2002
APPEARANCES:
Ms. Grace Li Xiu Woo FOR APPLICANTS
Mr. Eric Lafrenière FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Grace Li Xiu Woo
1981 Favard Street
Montreal, Quebec
H3Y 1Y9 FOR APPLICANTS
Department of Justice
Guy-Favreau Complex
200 René-Lévesque Boulevard West
East Tower, 5th Floor
Montreal, Quebec
H2Z 1X4 FOR RESPONDENT
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