Date: 20090320
Docket: T-1491-08
Citation: 2009 FC 298
Ottawa,
Ontario, March 20, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
TOLSON
CLARKE
Applicant
and
VETERANS REVIEW AND APPEAL
BOARD,
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] The
applicant, Sergeant Tolson Clarke, served in the Canadian Forces Regular Force
from March 13, 1970 to May 15, 1995. He has served with the Reserve Force
since June 7, 2001. In October of 2005, Sergeant Clarke applied for a
disability pension in respect of lumbar disc disease and mechanical low back
pain.
[2] That
application was initially denied. However, a Review Panel of the Veterans
Review and Appeal Board (Review Panel) granted Sergeant Clarke a one-fifth
pension entitlement for lumbar disc disease arising out of his service in the
Regular Force. No entitlement was granted for his service in the Reserve
Force. Sergeant Clarke appealed that decision to an Entitlement Review Panel
of the Veterans Review and Appeal Board (Appeal Board). The Appeal Board
confirmed the conclusion of the Review Panel. Sergeant Clarke brings this
application for judicial review of that decision.
The Decisions of the Review
Panel and the Appeal Board
Review Panel
[3] The
Review Panel determined that Sergeant Clarke had established, on a balance of
probabilities, that his military service, and in particular an injury sustained
while playing volleyball in the military in 1979, partially contributed to the
development of his lumbar disc disease.
[4] The
Review Panel disagreed with Sergeant Clarke’s contention that the degenerative lumbar
disc disease was due solely to the volleyball injury. In this regard, the
Review Panel noted that this injury was followed by a series of non-military duty
related injuries that occurred throughout Sergeant Clarke’s career. After
describing numerous non-service related injuries, the Review Panel found a
February 1995 injury sustained while Sergeant Clarke was shovelling snow to be
“the most significant injury.” The February 1995 incident had resulted in pain
at the L4-5 level of the lumbar spine.
[5] The
Review Panel went on to observe that the next complaint of back pain appeared
in an Emergency Report prepared in October of 2002. Sergeant Clarke had
twisted his back while remodelling his kitchen. A physiotherapy report
prepared at the time noted that the involved areas of the lumbar spine were
likely at the L4-5 and L5-S1 levels.
[6] The
Review Panel then considered an incident which occurred in August of 2005,
while Sergeant Clarke was on Reserve service. Based in part on an August 18,
2005 CF 98 Report that stated “He moved from one chair to another and at that
time felt a sharp pain in his back” and a November 9, 2005 MRI Report, the
Review Panel concluded that, given the time involved, the August 5, 2005 injury
was a manifestation of Sergeant Clarke’s low back pathology rather than a cause
of the pathology.
[7] With
respect to the mechanical low back pain condition, the Review Panel doubted whether
Sergeant Clarke's back pain was mechanical in nature (as opposed to being
related to his degenerative lumbar spine condition). The Review Panel found
that the preponderance of the evidence suggested that Sergeant Clarke's low
back symptoms were related to the extensive pathology identified in the
November 2005 MRI report. The Review Panel noted the opinion of a
physiotherapist from October of 2005 to the effect that Sergeant Clarke’s
symptoms and findings suggested a derangement of a low intervertebral disc of
the L5 lumbar.
[8] The
Review Panel awarded retroactive entitlement to October 21, 2005, the day
Sergeant Clarke first applied for a disability pension for lumbar disc disease.
Appeal Board
[9] As
noted above, the Appeal Board confirmed the decision of the Review Panel.
[10] At
the outset of its reasons, the Appeal Board stated that in arriving at its
decision it had carefully reviewed all the evidence, medical records, and
submissions, and had complied with the statutory obligation to resolve any
doubt in the weighing of evidence in favour of Sergeant Clarke (as required by
sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C.
1995, c. 18 (Act)).
[11] The
Appeal Board recognized that Sergeant Clarke was diagnosed with lumbar disc
disease. It referred to the MRI report of November 2005 that found Sergeant
Clarke to have:
[…] moderate-sized left
paracentral disc herniation at L4-5 on the left. There is a relatively large
extruded fragment extending inferiorly with nerve root compromise involving
principally the L5 nerve root on the left.
[12] The
Appeal Board also recognized that Sergeant Clarke attributed his condition to
an injury suffered in 1979 or 1980 while playing military-sanctioned
volleyball.
[13] The
Appeal Board referred to what the Entitlement Guidelines (Medical Guidelines)
state about lumbar disc disease and noted that the natural history of the
progressive degenerative changes in the disc must be taken into account when
determining what fraction of the disability could reasonably be attributed
directly to service.
[14] The
Appeal Board concluded, as the Review Panel had, that Sergeant Clarke “had
numerous other non-service related injuries to his back, and from which it is
reasonably inferred, have contributed to [Mr. Clarke]’s condition in a
substantive fashion.”
[15] The
Appeal Board accepted that Sergeant Clarke’s initial volleyball injury
partially contributed to the development of his lumbar disc disease “and the
Review Panel has correctly identified the contribution of this incident to the
Appellant’s development of lumbar disc disease as a minor aggravation
attracting one-fifth pension entitlement”.
[16] The
Appeal Board determined that considering Sergeant Clarke’s numerous non-service
related back injuries, the aging process of lumbar disc disease and its natural
progression, the Review Panel had correctly withheld a four-fifths pension
entitlement.
The Alleged Errors
[17] Sergeant
Clarke argues that the decision not to grant entitlement for service in the
Reserve Force was wrong. In support of this contention, he points to the
positive results he had on medical examinations and fitness tests between the
time he enrolled in the Reserve Force and August of 2005. Sergeant Clarke
contends that he suffered a back/nerve injury on August 5, 2005 when he picked
up a file while doing a rotational twisting through his lower back. This
caused an immediate and sharp pain.
[18] Sergeant
Clarke acknowledges that he had numerous back complaints while in the Regular Force,
but he submits each of those complaints were resolved with rest or medication.
[19] In
conclusion, Sergeant Clarke argues that the injuries of “moderate left side
glide (foot drag) restrictions with pain” and “considerable Modic changes as
well as a small sequestered fragment behind the L-5 (causing permanent numbness
in my left calf leg, foot, toes and frequent leg cramps)” did not result from
the February 1995 shovelling incident (as found by the Appeal Board), but
instead occurred in August of 2005 while he was a member of the Reserve Force.
Sergeant Clarke submits that the incident of February 1995 was resolved in
short order as evidenced by a Medical Inspection Room report dated March 31,
1995 that stated “PT. Is doing well – no recent pain – progressed to a full
(unreadable) routine.”
[20] Sergeant
Clarke therefore argues that he is entitled to a full pension in respect of
lumbar disc disease.
The Issues
[21] In
my view, the issues raised by Sergeant Clarke are as follows:
1)
What is the applicable standard of review?
2)
Did the Appeal Board err by failing to award any pension
entitlement to Sergeant Clarke for his Reserve service based upon the incident
of August 5, 2005?
3)
Did the Appeal Board err by failing to properly apply section 39
of the Act?
Standard of Review
[22] I
am required to consider whether the existing jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded to
the decision of the Appeal Board. See: Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 at paragraphs 57 and 62. In my view, it has.
[23] The
first asserted error puts in issue whether the Appeal Board erred by not
awarding any pension entitlement to Sergeant Clarke for his Reserve service.
The second asserted error requires consideration of whether the Appeal Board
properly applied section 39 of the Act.
[24] In
Wannamaker v. Canada (Attorney General) (2007), 361 N.R. 266 at
paragraphs 12-13, the Federal Court of Appeal concluded that questions of mixed
fact and law such as whether a particular injury arose out of service, and
whether section 39 of the Act was properly applied, were questions properly
assessed on the standard of reasonableness.
[25] On
the basis of this jurisprudence, I am satisfied that the decision of the Appeal
Board should be reviewed against the standard of reasonableness in respect of
both asserted errors. See also: Goldsworthy v. Canada
(Attorney General), [2008] F.C.J. No. 540 at paragraphs 10-14 (F.C.) and Macdonald
v. Canada (Attorney General) (2008), 330 F.T.R. 261 at
paragraphs 13-15 (F.C.).
[26] Review
on the reasonableness standard requires an inquiry into the qualities that make
a decision reasonable. These include the process of articulating the reasons
and the outcome. On judicial review, reasonableness is largely concerned with
the existence of justification, transparency and intelligibility within the
decision-making process. It is also concerned with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law. See: Dunsmuir, paragraph 47.
Application of the Standard of
Review
Did the Appeal Board err by
failing to award any pension entitlement to Sergeant Clarke for his Reserve
service based upon the incident of August 5, 2005?
[27] I
begin by observing that Sergeant Clarke bore the onus of establishing, on a
balance of probabilities, that the condition diagnosed in the November 2005 MRI
report resulted from "an injury […] or an aggravation thereof that arose
out of or was directly connected with […] military service". See:
paragraph 21(2)(a) of the Pension Act, R.S.C. 1985, c. P-6. Subsection
21(2) of the Pension Act is set out in the appendix to these reasons.
[28] The
Entitlement Eligibility Guidelines (Medical Guidelines) applied by the Appeal
Board instructed that lumbar disc disease is fundamentally a natural
degenerative condition associated with the aging process. In a portion
referred to by the Appeal Board in its reasons, the Medical Guidelines state:
The relative importance of
degenerative change and injury causing clinical disability varies with age and
with individual factors. In a small percentage of cases, perhaps 5% of persons
under 55 years of age, a severe injury could be held totally responsible for
the disability (regardless of the presence of pre-existing degenerative
changes). It has been estimated that 75% of people in the older age group have
some low back disability due to disc instability resulting from normal
degenerative changes.
De Palma and Rothman, in their
book “The Intravertebral Disc”, outline the relationship between degenerative
changes and trauma in [the] following manner:
“Disc degeneration is not
usually due to one insult, but rather to the combined ravages of the
biochemical and mechanical changes of ageing, associated with longstanding
mechanical stress. A history of injury which may have precipitated a low back
syndrome may often be elicited, but this injury has played an incidental role
in what is truly a chronic degenerative process.”
It is thus apparent that the
natural history of the progressive degenerative changes in the discs must be
taken into account in determining what fraction of the disability can
reasonably be attributed directly to service. Service factors may cause
aggravation (permanent worsening) of the degenerative process. The degree of
aggravation is expressed in fifths.
[29] The
key medical evidence about the state of Sergeant Clarke's disability after the
August 2005 incident is the November 2005 MRI report that found a disc
herniation at L4-5.
[30] The
medical evidence before the Appeal Board included the following:
·
An emergency report, prepared on February 13, 1995, recorded that
Sergeant Clarke had hurt his back while shovelling snow. The doctor observed
some soreness on palpation at the L4-L5 level. An x-ray report at the time
found a "possible slight retrolisthesis of L4 relative to L5." A retrolisthesis
is a displacement of a vertebral body with respect to an adjacent vertebra.
·
Sergeant Clarke's "Medical Examination for Release"
completed on April 25, 1995 (as Sergeant Clarke was leaving the Regular Forces)
listed degenerative disc disease of the lumbosacral spine as a current disease
or injury.
·
After the October 2002 injury, received while renovating his
kitchen, Sergeant Clarke's physiotherapist reported, in November of 2002, that
the areas of the spine involved were probably "the facet joints at L4/5,
L5/S1."
[31] Sergeant
Clarke brought forward no medical evidence that the disc herniation was caused
by, or aggravated by, his actions while on Reserve duty on August 5, 2005.
[32] The
Appeal Board accepted the finding of the Review Panel that the pain and
subsequent symptoms Sergeant Clarke suffered on August 5, 2005 were a
manifestation of the herniated disc condition and not a cause of that
condition. This conclusion was based upon the Medical Guidelines and the
pre-existing evidence of degenerative disc disease contained in the February 13,
1995 emergency report and the November 2002 physiotherapy report. While
neither the Review Panel nor the Appeal Board mentioned the Medical Examination
for Release document, it too supports the conclusion that Sergeant Clarke
suffered from degenerative disc disease as early as 1995. There was no medical
evidence to contradict this evidence or the conclusion of the Appeal Board.
[33] The
reasons of the Appeal Board are intelligible and are justified by the evidence
before it. The decision falls within a range of possible, acceptable outcomes
(that is, outcomes that are acceptable in the sense that they are defensible on
the basis of the facts and the law).
[34] While
fully sympathetic to Sergeant Clarke’s situation, and fully cognizant that his
credibility was in no way impugned by the Appeal Board, I can see no basis at
law on which I can interfere with the finding of the Appeal Board that the
August 5, 2005 incident did not cause or aggravate Sergeant Clarke's lumbar
condition.
Did the Appeal Board err by
failing to properly apply section 39 of the Act?
[35] Section
39 of the Act (which is set out in the appendix to these reasons) required the
Appeal Board to:
a.
Draw, from all of the circumstances of the case and all the
evidence presented to it, every reasonable inference in favour of Sergeant
Clarke.
b.
Accept any uncontradicted evidence presented to it by Sergeant
Clarke that it considered to be credible in the circumstances.
c.
Resolve in favour of Sergeant Clarke any doubt, in the weighing
of evidence, as to whether Sergeant Clarke had established a case.
[36] I
can see no reasonable, favourable inference that the Appeal Board could have
drawn, but failed to draw. The fact that Sergeant Clarke was from time to time
symptom-free was anecdotal evidence that would not, by itself, support an
inference that contradicted the objective evidence that the Appeal Board relied
upon. The record before me contains no medical evidence to contradict the
medical evidence discussed above.
[37] Similarly,
Sergeant Clarke's evidence of being symptom-free, and his evidence that the
February 1995 injury resolved in short order, was belied by the February 1995
x-ray report and by the April 1995 diagnosis of degenerative disc disease of
the lumbosacral spine. Thus, I can see no error in failing to accept
uncontradicted evidence presented by Sergeant Clarke.
[38] Finally,
I see no failure to resolve doubt about the August 5, 2005 incident in Sergeant
Clarke's favour as required by subsection 39(c) of the Act. There was
insufficient evidence in support of Sergeant Clarke’s submission to warrant
application of subsection 39(c). See: Elliot v. Canada
(Attorney General) (2003), 307 N.R. 344 at paragraphs 41-42 (F.C.A.).
Conclusion
[39] For
these reasons, the application for judicial review will be dismissed.
[40] In
the circumstances, counsel for the Attorney General did not press a claim for
costs, and no costs are awarded.
[41] As
I advised Sergeant Clarke during the hearing, it is possible that he may have a
right to apply, on new evidence, to the Veterans Review and Appeal Board for
reconsideration of its decision. This was a matter he was to discuss with
counsel for the Attorney General. If such a right exists, and Sergeant Clarke
wishes to pursue it, Sergeant Clarke should attempt to obtain medical evidence that
supports his view that he incurred an injury while performing service in the
Reserve Force.
[42] The
Court appreciates counsel's assurance that she would explain to Sergeant Clarke
any right to apply for reconsideration.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed, without costs.
“Eleanor
R. Dawson”
APPENDIX
Subsection 21(2) of the Pension
Act and section 39 of the Veterans Review and Appeal Board Act read
as follows:
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21(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.
[…]
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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21(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.
[..]
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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