Docket: T-745-11
Citation: 2012 FC 207
Ottawa, Ontario, February 13, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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A. GREGORY HYNES C.D.
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, A. Gregory Hynes C.D., is a retired member of the Canadian Armed
Forces. In
a decision dated March 3, 2011, the Veterans Review and Appeal Board granted Mr.
Hynes, a
three-fifths pension entitlement for the aggravation of Lumbar Disc Disease
incurred while on active service. Mr. Hynes seeks a larger entitlement. He has brought
this application for judicial review of the Board’s decision under section 18.1
of the Federal Courts Act, RSC 1985, c F-7. Mr. Hynes represented
himself at the hearing.
[2]
For
the reasons that follow, the application is dismissed.
BACKGROUND:
[3]
Mr.
Hynes served in the Regular Force from December 13, 1972 to July 2, 1975 and
again from January 5, 1979 to July 31, 1995. During his first enlistment, Mr.
Hynes had complained of back pain attributed to sleeping in tents. No
abnormality was found upon examination on his re-enrolment.
[4]
While
doing rounds at CFB Halifax shortly after his reenlistment, Mr. Hynes slipped
and fell. He required physiotherapy and treatment for muscle spasms. In August
1979, he was referred to a surgical consultant at the Gagetown base in New
Brunswick
when he reported having difficulty performing his assigned tasks as an
infantryman due to back pain. No physical cause for the pain had been found on
examination by medical officers. The consultant concluded that Mr. Hynes
“probably did have a significant injury” and recommended that he be given “the
benefit of the doubt” and relieved from heavy activities. The applicant was, thereafter,
retrained as a dental technician.
[5]
In
1985 Mr. Hynes was injured in a collision with an automobile while riding his
bicycle from work. In October, 1992 during an “over 40” medical examination,
the examiner recorded symptoms of low back pain but found a normal spinal alignment.
[6]
On
April 18, 1994, prior to his release from service, Mr. Hynes submitted a claim
for a pension entitlement for Lumbar Disc Disease (“LDD”), among other matters.
A medical opinion dated April 26, 1995 states in part:
This condition has not been quite so
diagnosed as claimed. The evidence submitted by the advocates in the x-ray of
14 July 1988 which reveals “minimal disc space narrowing at L5-S1” which is a
normal variant seen at this level…Whatever the cause of the back pain, it has
not been caused or permanently worsened by any of the duties of the Regular
Force Service and it cannot be related to the slip and twist of April 1979
which, after it [sic] resolution, was followed by several asymptomatic years.
[7]
In
a decision dated May 12, 1995 the Pension Commission found that the claim for LDD
was not pensionable as it considered that the symptoms had not arisen from
military service.
[8]
Mr.
Hynes appealed that decision to an Entitlement Review Panel of the Board,
pursuant to section 84 of the Pension Act, RSC 1985, c P-6 (hereafter
the Pension Act). In a decision dated November 27, 1996, the Entitlement
Review Panel considered that there was sufficient evidence to recommend an
award based on the August 1979 surgical consultant’s report and a statement in the July 14, 1988 x-ray
report.
[9]
The
1988 x-ray report found:
There
is minimal disc space narrowing at L5-S1 without evidence of associated
significant degenerative change. The remainder of the disc spaces are well
preserved and no evidence of fracture, dislocation, or significant degenerative
change is seen.
[10]
Mr.
Hynes was awarded a pension entitlement in the amount of two-fifths for his
LDD, retroactive to the date following his release from service. At the same
time, the Entitlement Review Panel found that a 1994 diagnosis of mild
degenerative disc disease, in a man then 45 years old, was insidious and “not
supported by trauma or any accident.” Disability pension entitlement for that
condition was declined.
[11]
Mr.
Hynes appealed the decision to an Entitlement Appeal Panel of the Veterans
Review and Appeal Board (“the Board”). His appeal representations were made by
way of written submissions forwarded to the Board on January 26, 2011 by a
member of the Bureau of Pension Advocates, under section 25 of the Veterans
Review and Appeal Board Act, S C 1995, c 18 (“the Act”).
DECISION UNDER REVIEW:
[12]
In
its decision dated March 3, 2011, the Board increased the entitlement to
three-fifths, pursuant to subsection 21(2) of the Pension Act effective
March 3, 2008 (three years prior to the date of the award). In reaching these
conclusions, the Board cited the Advocate’s written submissions, an excerpt
from the Veterans Affairs Canada Entitlement Eligibility Guidelines entitled
“Disc Disease” and a publication entitled The Merck Manual, Eighteenth
Edition. The latter publications were relied upon in support of the Board’s
findings regarding the consensus in the medical literature respecting disc
disease.
[13]
The
Board noted that the last medical reference to Mr. Hynes’s condition was from
1991, some eighteen years earlier and that there was no medical opinion linking
all of the LDD to the Regular Force service. The Board found:
…the
totality of the evidence presented to it, shows that service factors may have
contributed to a major degree towards the already partially pensioned condition
and the amount of three-fifths best represents that degree of aggravation.
[14]
Based
on the evidence before it including the medical literature, the Board found that
LDD is a natural degenerative illness, and only in rare cases (5%) is a severe
injury the sole cause of LDD. It withheld a portion of the entitlement based on
Mr. Hynes’s age at the time of diagnosis. The Board also withheld a portion of
the entitlement because of references to other back trauma, such as the 1985
off-duty bicycle accident.
[15]
Subsection
39(1) of the Pension Act allows for retroactivity from the later of: the
day on which the application was first made, and a day three years prior to the
day on which the pension is awarded. The Board found no evidence to
substantiate an additional award under subsection 39(2) of the Pension Act on
the ground that the timing of the award had been beyond the control of the
applicant.
ISSUES:
[16]
A
number of issues raised by the parties in their written submissions were not
pursued at the hearing. Mr. Hynes advised the Court that his objection to the
Board’s decision respecting the effective date of the award would not be
addressed. He stated that should he succeed regarding entitlement, he would ask
the Board to revisit that question.
[17]
Counsel
for the respondent acknowledged that some of the material annexed to Mr. Hynes’
affidavit, to which objection had been made in the respondent’s written
representations, was properly considered to have been before the Board as it
was found in Mr. Hynes’ service file. On review, I found that most of the
information attached to Mr. Hynes’ affidavit was included in either the
certified tribunal record or the respondent’s record. Mr. Hynes withdrew
Exhibit 31, a cardiologist’s report dated January 15, 2009 and Exhibit 32, a Diagnostic
Imaging Report dated February 22, 2011 and accordingly neither were taken into
consideration. These documents were not before the Appeal Board for their
consideration prior to their decision. They were, therefore, not admissible on
this review.
[18]
In
his written argument Mr. Hynes contended that the Board provided inadequate
reasons for its decision. He did not pursue this argument at the hearing. I am
satisfied that the Board’s reasons were thorough and clearly stated the basis
on which it reached its conclusion.
[19]
The
remaining issues are:
a. whether the
Board erred in failing to consider all of the evidence and took extraneous
evidence into consideration; and
b. whether the
Board erred in its application of s. 39 of the Act.
RELEVANT LEGISLATIVE
PROVISIONS:
[20]
Section
21(2.1) of the Pension Act states:
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21. (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.
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21.
(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.
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[21]
Section
39 of the Veterans Review and Appeal Board Act reads as follows:
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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:
Standard of Review;
[22]
In Dunsmuir v New
Brunswick,
2008 SCC 9 at paragraph 62, the Supreme Court of Canada held that there is no
need to engage in a standard of review analysis where the jurisprudence has
already satisfactorily determined the appropriate standard. This Court has
determined that the Board is a specialized tribunal with considerable
expertise, and therefore its decisions are to be reviewed on a standard of
reasonableness: McLean v Canada (Attorney General), 2011 FC 453
at para 27.
Did the Board
err in its consideration of the evidence?
[23]
Mr.
Hynes submits that the Board erred in withholding a portion of his pension
entitlement on the ground that his LDD was a naturally occurring condition
resulting from aging. He argues that an x-ray in his service file dated May 22,
1979 showed no disk degeneration and that proved that there was no natural
degeneration prior to his accident in April of that year. He submits that the
Board also erred in considering that the 1995 bicycle accident occurred
off-duty. Bicycling to and from work was encouraged by his superiors at the
time, he says, as part of his physical fitness regime.
[24]
I
agree with the respondent that there is no merit to the argument that the Board
failed to consider Mr. Hynes’ complete medical record – the Board considered
the medical evidence that was presented by the applicant, and made its decision
on that basis. It is clear from the record that the Board considered the full
content of the file, including the new evidence submitted by the applicant, and
the Advocate’s submissions.
[25]
There
is also no merit to Mr. Hynes’ argument regarding the Board’s treatment of the
1985 bicycle accident. In the written representations on appeal, the Advocate
did not argue that the bicycle accident occurred on-duty; rather, the Advocate
argued that the bicycle accident did not contribute to Mr. Hynes’ condition.
Mr. Hynes continued to make that argument on the hearing of this application
while also advancing as a new argument that his supervisors encouraged him to
ride his bicycle for fitness. Having attempted to eliminate the 1985 accident
as the cause of the condition for which he sought an increase in entitlement before
the Board, the applicant cannot now claim it was work related.
[26]
On
the evidence and submissions before the Board, it was reasonable for the Board
to withhold a portion of the entitlement on the ground that the condition was a
naturally occurring process which occurs with ageing and on the other
references to back trauma such as the bicycle accident.
[27]
Mr.
Hynes also submits that it was improper for the Board to have relied on the Merck
Manual’s discussion of Neck and Back Pain, citing Deschênes v Canada
(Attorney General), 2011 FC 449. In that case, Justice Beaudry agreed that
the Board may consult sources other than those in the record. However, the
Board’s reliance upon an external source to contradict the evidence of the
applicant’s specialist without giving the applicant an opportunity to respond
was found to be improper.
[28]
That
is not the situation here. The content of the excerpt from the Merck Manual
attached to the Board’s decision is consistent with the Veterans Affairs Canada
Guideline which the applicant concedes was part of the record before the
Pension Commission and which was relied upon by his Advocate in her written
representations on appeal. The Merck Manual merely elaborates upon what is
found in synopsis form in the Guideline. It does not contradict the key points
of evidence relied upon by the applicant, and by the Board in increasing his
entitlement: the 1988 x-ray report and the 1979 consultant’s report.
Did the Board err in its
application of s. 39 of the Act?
[29]
Mr.
Hynes submits that if the Board cannot find beyond a reasonable doubt that
non-service factors caused his LDD, then it must grant him the full
entitlement. Since the medical literature indicates that 5% of cases of LDD are
caused solely by trauma, the Board was required to give him the benefit of the
doubt that he fell within that 5%. Even if there was only a one-in-a-million
chance that the LDD was caused solely by trauma, Mr. Hynes argues, s. 39 requires
that he be given the benefit of the doubt raised by that one chance.
[30]
The
respondent contends that the determination of the extent of aggravation of an
injury or disease involves a measure of subjectivity that does not lend itself
to scientific precision. There was no evidence linking the fall to the LDD, and
the Board gave Mr. Hynes the benefit of the doubt in granting the increased entitlement.
[31]
I
agree with the respondent that the applicant overstates the effect of s. 39 in
this context. His argument would require the grant of full entitlement in any
case where there was even a remote possibility that LDD was solely caused by
trauma. S. 39 does not usurp the Board’s discretion to exercise its judgment as
to causation. As stated in Canada (Attorney General) v Wannamaker, 2007 FCA 126 at
paragraph 5:
Section
39 ensures that the evidence in support of a pension application is considered
in the best light possible. However, s.39 does not relieve the pension
applicant of the burden of proving on a balance of probabilities the facts
required to establish entitlement to a pension: Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 (Fed. T.D.),
Cundell v. Canada (Attorney General) (2000), 180 F.T.R.
193 (Fed. T.D.).
[32]
In
this case, there was no serious conflict in the evidence. The weight of the
evidence before the Board was to the effect that LDD occurs naturally with age
and would rarely be due to one severe injury. There was no evidence to clearly
link causation to the applicant’s military service but the Board accepted that
service factors may have contributed to the condition. The Board found that the
amount of three-fifths best represented the degree of aggravation caused by the
service factors.
[33]
The
spinal
x-ray report dated May 22, 1979, prepared a few months after the slip and fall,
was normal except for what was described in the April 26, 1995 medical opinion
as a developmental anomaly at the S1 level. In her written representations to
the Board, the Advocate stated that this anomaly, spina bifida, was not
material as it does not contribute nor predispose to LDD. The April 26, 1995 opinion
characterized the “minimal disc space narrowing” observed in 1988 to be a
normal variant. The August 1979 consultant’s report was ambiguous at best.
[34]
On
this evidence, and in applying s.39, the Board was not required to accept the
Advocate’s submission that in the absence of evidence to establish beyond all
reasonable doubt that non-service-related factors had contributed to the
disability it was required to find in favour of full pension entitlement.
[35]
In
my view, therefore, the Board’s decision was reasonable and the application
must be dismissed. No costs were requested by the respondent and none will be
awarded.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is dismissed. No award of costs is
made.
“Richard
G. Mosley”
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