Date: 20101217
Docket: T-969-10
Citation: 2010 FC 1300
Ottawa,
Ontario, December 17, 2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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TIMOTHY GILBERT
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by Timothy Gilbert seeking judicial review of a decision of
an Appeal Panel of the Veterans Review and Appeal Board (Board) rendered on May
25, 2010. The impugned decision upheld an earlier decision by an Assessment
Review Panel dated May 8, 2009 which, in turn, had upheld a Department of
Veterans Affairs disability assessment from September 23, 2008. Mr. Gilbert
contends that the Board erred in assessing his claim under s 35 of the Pension
Act, RS, 1985, c P-6 (Pension Act) at a 5% loss of function disability
rating.
Background
[2]
Mr. Gilbert
is a long-standing member of the Royal Canadian Mounted Police (RCMP). He was
injured in a fall on July 30, 2007 while on duty. His primary injuries were
fractures to the right distal tibia and fibula and a fracture to the right calcaneus.
The uncontradicted medical evidence indicated that these were serious fractures
which were treated by surgical reduction, splinting and a lengthy course of
physiotheraphy. Unfortunately, the damage to Mr. Gilbert’s ankle resulted
in the onset of degenerative posttraumatic arthritis which, by 2009, was
predicted to lead to a surgical fusion.
[3]
Based
on the medical information available at the time, the Department of Veterans
Affairs assessed Mr. Gilbert’s ankle injury at a level four disability on
Table 17.12 of the 2006 Table of Disabilities. Level four is defined as “essentially
normal range of motion but pain now present on a daily basis”. Mr. Gilbert
appealed this assessment but the Assessment Review Panel upheld the
Departmental award on the following basis:
The Panel appreciates, as did the
Minister, that the Applicant has essentially normal range of motion but pain
present on a daily basis and/or with movement, which therefore attracts a
medical impairment rating of Four, as granted by the Minister. The Panel finds
that a Quality of Life Level 1 is appropriate in all of the circumstances of
this case inasmuch as the Applicant’s activities of independent living,
recreational/community activities, and personal relationships have been mildly
affected, as revealed by the evidence presented to it.
[4]
Mr. Gilbert
appealed the above decision to the Board and submitted an updated medical report
from his orthopaedic surgeon, Dr. W. B. Henderson, dated January 7, 2010.
In that report Dr. Henderson described Mr. Gilbert’s medical status
at that time as follows:
I do support the notion that there is the
potential for some inaccuracy in determination of disability and possible
consideration of new evidence. I am not certain that it is understood quite
clearly the difference between an ankle fracture and pilon type fracture. An
ankle fracture is not usually as high energy as a pilon type fracture is.
Subsequently the destruction of the ankle joint and resulting posttraumatic
arthritis is not usually as severe and rapid to progress. Mr. Gilbert did
in fact have a pilon type distal tibia fracture and a calcaneus fracture. Both
were intra-articular comminuted type fracture. Both had subsequently gone on to
rapid degenerative posttraumatic changes.
With regards to the tables, the table
used to calculate disability (Table 17.12 Loss of Function Ankle) Mr. Gilbert
was assessed as I understand a No. 4 rating; essentially normal range of motion
but with pain now present on a daily basis with or without movement. I
think the more accurate interpretation would be ankylosis in a position of
function which would be a rating of 18. I think it needs to be even considered
that an ankylosis in an unfavorable position or flailed joint category be
considered which would be a rating of 26. Mr. Gilbert’s ankle and subtalar
joint are both turning into what is called varus positioning. He does have pain
with function, poor motion, and increasing varus deformity as a
result of the rapidly developing arthritis.
If consideration to one of the other
table was given which I think is reasonable, I think Table 17.9 Loss of
Function Lower Limb rating 18 with criteria being walking at a reduced pace on
flat ground requiring routine use of cane or crutch and is unable to manage
either stairs or ramps without rails, or pain with restricted walking to 250
meters or less would be appropriate as well.
[Emphasis added]
[5]
The
Board declined to make any adjustment to the Departmental disability
assessment. In its reasons the Board quoted a substantial portion of Dr. Henderson’s
January 7, 2010 report, but in its conclusion only referred to Dr. Henderson’s
report from a year earlier. The Board’s conclusion is stated as follows:
Therefore the Board will not disturb the
decision of the Assessment Review Panel dated 8 May 2009.
The Board notes Dr. Henderson, in
his report dated 30 January 2009, states the Appellant’s ankle has a good range
of motion, with 10 degrees dorsiflexion to 20 degrees plantar flexion; and a CT
scan confirmed a well fixed ankle, with some mild degenerative changes. The
Board notes the Appellant’s ankle is not fused and there is no clinical
evidence of ankylosis.
For these reasons, the assessments will
remain as is, and the quality of live level will not be changed.
[Emphasis added]
It is this conclusion that is the subject
of this application.
Issue
[6]
Did
the Board err in its assessment of the medical evidence placed before it with
specific reference to Dr. Henderson’s 2010 diagnosis of ankylosis?
Analysis
Standard
of Review
[7]
I
agree with the Respondent that the standard of review for the issue raised on
this application is reasonableness and I adopt the following statement to that
effect from the decision by Justice Michel Beaudry in Beauchene v Canada (AG),
2010 FC 980 at para 21:
This Court has held that the
interpretation of medical evidence and the assessment of an applicant’s
disability are determinations that fall within the Board’s specialised
jurisdiction and should be approached with deference (Yates v. Canada
(Attorney General), 2003 FCT 749 (CanLII), 2003 FCT 749, 237 F.T.R. 300).
Such issues are questions of fact or mixed fact and law and subject to review
on the standard of reasonableness (Dunsmuir, at para. 51).
[8]
The
criteria by which Mr. Gilbert’s ankle injury was assessed are set out in
the 2006 Table of Disabilities. (Table 17.12) for loss of ankle function. His
disability was throughout assessed at a rating of four, which is described in
the Table as “[e]ssentially normal range of motion but pain now present on a
daily basis and/or with movement”. Dr. Henderson disagreed with that
rating and stated in his January 7, 2010 report that a rating of eighteen was
warranted on the basis of “ankylosis in a position of function”. Although the
Board did not say so explicitly, it appears that it did not accept Dr. Henderson’s
diagnosis of ankylosis and found that that diagnosis was not supported by clinical
evidence.
[9]
The
question before me is whether the Board could reasonably reject Dr. Henderson’s
diagnosis of ankylosis on the basis of the reasons it gave.
[10]
I
am guided by the previous jurisprudence of this Court which has held that the
Board has no inherent jurisdiction to independently resolve medical questions.
In drawing medical conclusions it can rely only upon the medical evidence
placed before it or it may solicit independent medical evidence under s 38 of
the Veterans Review and Appeal Board Act, S.C. 1995, c. 18: see Rivard
v Canada,[2001] FCJ
No 1072. In the absence of adverse credibility findings the Board is also obligated
to accept uncontradicted medical evidence: see MacKay v Canada (AG), (1997), 129
FTR 286 at para 26.
[11]
Here
the Board failed to indicate why it rejected Dr. Henderson’s diagnosis of
ankylosis. The Board may well be right in its assessment that Mr. Gilbert
did not suffer from ankylosis and therefore did not qualify for a higher
disability rating. Indeed, part of the problem confronting the Board was the
paucity of clinical data presented in Dr. Henderson’s report of January 7,
2010 in support of his diagnosis. Nevertheless, Dr. Henderson understood
that the initial disability rating of four was based on an observation at that
time that Mr. Gilbert had “essentially a normal range of motion”. Dr. Henderson
then clearly stated that “the more accurate interpretation would be
ankylosis”. He also observed that Mr. Gilbert was by then suffering from
“poor motion” and “rapidly developing arthritis”. He concluded by inviting
further enquiries. The totality of the medical evidence also indicated very
clearly that this was a progressively worsening condition such that the earlier
medical reports were losing cogency.
[12]
Although
the Board quotes the relevant passages from Dr. Henderson’s January 7,
2010 report, its conclusion refers only to Dr. Henderson’s report from a
year earlier which had reported “a good range of motion”, “a well fixed ankle”
and “some mild degenerative changes”. This evidence seems to be the basis for
the Board’s conclusion that “there is no clinical evidence of ankylosis”.
[13]
In
the absence of any reasoning by the Board as to why it rejected Dr. Henderson’s
2010 diagnosis of ankylosis, I am left to speculate about how that evidence was
assessed, if at all. One would ordinarily assume that Dr. Henderson had
some clinical evidence to back up his diagnosis and, in fact, he did note that Mr. Gilbert’s
condition had continued to deteriorate and that he exhibited “poor motion”.
This is in marked contrast to the evidence from the 2009 report that the Board
ultimately relied upon. If, as it appears, the assessment of a patient’s range
of motion is the critical determining factor in such a diagnosis, the Board had
a duty to take this differing evidence into account and to explain how it
reached its conclusion that Mr. Gilbert was not suffering from ankylosis.
[14]
As
noted above, the Board had no authority to independently substitute its opinion
for that of Dr. Henderson. It could reject his evidence if there was a
rational evidentiary basis and a stated rationale for doing so. The failure
here, however, to provide intelligible reasons for rejecting Dr. Henderson’s
opinion apparently in favour of older and presumably less reliable accounts is
a reviewable error: see King v Canada (AG), [2000]
FCJ No. 196182 FTR 226 at paras 20 to 22.
[15]
Indeed,
if the Board was alert to its obligation under s 39 of the Veterans Review
and Appeal Board Act, it would have either resolved any uncertainty about
the basis of Dr. Henderson’s diagnosis of ankylosis in favour of Mr. Gilbert
or sought out medical clarification. If it had a sound basis for its conclusion
that Mr. Gilbert was not suffering from ankylosis, it had a duty to
explain it so that Mr. Gilbert could understand.
[16]
I
am satisfied that this is a matter which must be redetermined on the merits and
in accordance with these reasons. There is no reason why the matter cannot be
reassessed by the same members of the Board.
[17]
The
Applicant is entitled to costs which I fix in the amount $2,500.00 inclusive of
disbursements.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
The matter is to be redetermined by the Board in accordance with these
reasons.
THIS COURT’S FURTHER
JUDGMENT is that the Applicant shall have his costs in the amount $2,500.00
inclusive of disbursements.
“ R. L. Barnes ”
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