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Federal Court
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Cour fédérale
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Date: 20090805
Docket: T-604-08
Citation: 2009 FC 801
Ottawa, Ontario, August 5, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
DENNIS PATTERSON
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Patterson served in the Canadian Armed Forces from 1981 to 2003. During his
period of service he developed both Post Traumatic Stress Disorder (PTSD) and
Multiple Sclerosis (MS). He was granted a one-fifth pension entitlement for
the PTSD and later applied for a pension for his MS on the basis that it was an
additional disability that in whole or part was a consequence of the PTSD. His
claim was denied by the Veterans Review and Appeal Board (VRAB) on January 31,
2008. This is an application for judicial review of that decision. For the
reasons that follow, the application is allowed.
Background
[2]
Mr.
Patterson was born February 13, 1959, and served in the Canadian Armed Forces
from June 11, 1981 to January 7, 2003. He was a traffic technician in the
Regular Force of the Canadian Armed Forces, based in Regina, Saskatchewan, although he
was also stationed elsewhere.
[3]
Commencing
in August 1998, Mr. Patterson began to experience a number of serious medical
symptoms including chills, fevers, severe joint aches and the loss of more than
60 pounds. He saw several specialists and received several different possible diagnoses
ranging from flu to cancer.
[4]
In
September 2000, Mr. Patterson was diagnosed as suffering from MS. He made a MS
pension claim because of his understanding that a virus caused his MS. This
application was unsuccessful as was an appeal to the VRAB on or about July 25,
2002.
[5]
In
January 2002, Mr. Patterson was diagnosed as suffering from PTSD. He then initiated
a disability pension application for the PTSD. On June 19, 2003, the Department
rendered an unfavourable first level decision on the PTSD claim. The
Department advised that PTSD was not pensionable under subsection. 21(2) of the
Pension Act, R.S.C. 1985, c. P-6 for Regular Force service.
[6]
On
April 20, 2004, the VRAB reversed the Minister’s decision and granted a pension
entitlement to Mr. Patterson for PTSD in the amount of 1/5th “for that part of
the disability or aggravation thereof that arose out of or was directly
connected with service in peace time in the Regular Force.”
[7]
In
so doing the VRAB noted that nowhere does anyone explain medically what role,
if any, the MS played in relation to the applicant’s PTSD. The Board awarded
one-fifth entitlement for the claimed condition based on a medical comment of
the psychologist (Dr. Somers) treating Mr. Patterson that the inconsistency in
physicians contributed to the delays in treatment for the PTSD. Also, the
Board noted that it took four months from the time the neurologist in Germany recommended
an MRI for the applicant until the time that he actually was scheduled for same.
The VRAB withheld four-fifths entitlement on the basis that there was “no
evidence of a lack of treatment as no stone was left unturned in trying to find
the cause of the applicant’s symptomology.”
[8]
In
December 2004, Mr. Patterson initiated a disability pension application for the
MS under subsection 21(5) of the Pension Act, as being a consequence of
pensioned condition of PTSD. The basis for this claim was that the MS symptoms
were precipitated or aggravated by Mr. Patterson’s PTSD. That provision
provides as follows:
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21.(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.
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21.(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.
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[9]
In
support of his application for a pension for the MS as a consequential disability
to the PTSD, Mr. Patterson submitted evidence from his family physician, Dr.
Govender and from his psychologist, Dr. Somers.
[10]
Dr.
Govender in a report dated September 27, 2004 wrote:
The above named [Dennis Patterson] is a
regular patient of mine. He suffers with Relapsing Remitting Multiple
Sclerosis. He served in the army and experienced Post Traumatic Stress
Syndrome, which precipitated his initial attack of Multiple Sclerosis.
[emphasis added]
[11]
In
a further report dated October 30, 2007, he explained why he was of the view
that there was a relationship between the PTSD and MS, as follows:
Many studies have shown that
stress, whether it is mental or physical, is a precipitating factor for the
onset and exacerbation of Multiple Sclerosis.
[12]
Dr.
Somers in her report dated January 25, 2007 opined that Mr. Patterson had been
suffering from PTSD prior to its official diagnosis in 2003. She wrote :
There can be little doubt that
the PTSD was established during the period of medical uncertainty prior to
2000.
…
His accounts make it
abundantly clear that the events that traumatized him began in 1998.
[13]
In
addition, Mr. Patterson submitted an article entitled ‘Association between
stressful life events and exacerbation in multiple sclerosis: a meta-analysis’
published March 19, 2004 in the British Medical Journal.
[14]
On
July 12, 2005, the Department of Veterans Affairs rendered an unfavourable
decision regarding Mr. Patterson’s MS Application. The Department concluded
that Mr. Patterson failed to establish a consequential relationship between his
PTSD and MS.
[15]
The
VRPA denied an appeal on January 31, 2008, on the basis that “there is
insufficient evidence to link the claimed condition of multiple sclerosis to
the pensioned condition of post traumatic stress disorder” and there is “no
medical opinion from a neurologist relating specifically to this case which
would conclude that the post traumatic stress disorder caused or aggravated the
claimed condition of multiple sclerosis.”
Issues
[16]
The
only issue raised in this application is whether the decision of the VRAB was
reasonable.
Analysis
[17]
Mr. Patterson submits that the standard of
review is reasonableness simpliciter. The respondent agrees that the
standard of review is reasonableness; however, it urges that the Court afford
the VRAB a high deference given its “expertise” in weighing evidence concerning
pension claims and the existence of a privative
clause: See McTague v. Canada (Attorney General),[2000] 1 F.C.
647, at paras. 46 and 47; Cramb v. Canada (Attorney General),
2006 FC 638, at para. 15; Dumas v. Canada (Attorney General),
2006 FC 1533, at para. 23.
[18]
In keeping with the decision of the Supreme
Court in Dunsmuir v. New Brunswick, 2008 SCC 9, the standard of review is reasonableness, which is to
say:
A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But 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 law.
[19] Mr. Patterson challenges both the
reasonableness of the decision making process and the conclusion reached.
[20] He submits that the process was
flawed in that the VRAB erroneously relied on the Medical Guidelines from the
1995 Table of Disabilities, despite there being a more current version dated
April 2006. He further complains that the VRAB in its decision relied on and
recited a passage in the Medical Guidelines that is included with reference to
Arterial Sclerosis whereas the applicant suffers from Multiple Sclerosis.
[21] The applicant has correctly noted
that the 1995 Table of Disabilities was replaced with the 2006 edition by the
time the VRAP was rendering its decision. However, the new Guidelines state
that the former Guidelines will continue to apply to certain proceedings.
Specifically, it provides as follows:
The 2006 edition of the Table
of Disabilities will replace the 1995 edition of the Table of Disabilities on
the date that it is implemented. The 1995 edition of the Table of Disabilities
will still apply to certain proceedings initiated prior to, on or after the
date of implementation, as directed by Departmental Transition Protocols.
[22] It cannot be determined from the
record whether Mr. Patterson’s application, which was initiated prior to the
implementation date of the 2006 Guidelines, is one of the “certain” proceedings
referenced in the above passage. If it is, then the 1995 Guidelines would
continue to apply, as was submitted by the respondent. The burden of proof is
on the applicant to establish that the VRAB erred in relying on the former
Guidelines; he has failed to meet that onus as there is no evidence before the
Court showing that the decision under review was not one of those certain proceedings.
Aside from the applicant having the burden of proof, the VRAB is familiar with
its processes and should not be assumed to have applied the wrong Guidelines in
reaching its decision.
[23] The applicant also submits that
the VRAB erred in including the following passage in its decision. This
passage is from the 1995 Guidelines under the heading “Arterial Sclerosis”:
Veterans Affairs Canada
recognizes that many skilful and highly respected clinicians accept reasonable
current theories which have not yet been accepted in authoritative up-to-date
textbooks. Veterans Affairs Canada considers that before a theory can be
considered acceptable to the majority of the profession, such a theory must be
outlined and accepted in authoritative and up-to-date textbooks. When such
acceptance has been so demonstrated, it can then be considered to be a
consensus of medical opinion.
[24] The VRAB appears to rely on this
statement, in part, to discount the evidence submitted by the applicant which
supported his position that his MS was triggered by or aggravated by his PTSD.
The impugned passage is found in the decision immediately after the following
sentence from the Medical Guidelines dealing with MS:
A number of triggering
factors, such as infection, trauma, and pregnancy, have been suggested but none
has been convincingly related to either first attacks or exacerbations of the
disease.
[25] Without question, the VRAB ought
not to consider passages from the Guidelines that relate to other specific
diseases. The respondent submitted that the passage was not a critical
component of the decision. It was submitted that the VRAB would have reached
the same conclusion without referencing the impugned passage – it was used
merely to support its conclusion. The respondent submitted that, while the
VRAB ought not to have referenced that passage, it cannot be said that in so
doing, the ultimate result was impacted. I do not share that certainty,
especially when one turns to examine the evidence that was before the Board
concerning the relationship between the applicant’s PTSD and his MS. This I
will consider in tandem with the applicant’s submission that the Board’s
ultimate conclusion was unreasonable.
[26] The applicant asserts that the
result reached by the VRAB was unreasonable based on the evidence before it given
the legislative requirement that the applicant was to be given the benefit of
any doubt. Section 39 of the Veterans Review and Appeal Board Act, S.C.
1995, c.18, provides 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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[27] In assessing the reasonableness
of the result the Court must keep in mind these rules of evidence applicable to
the VRAB.
[28] The VRAB made no findings that any
of the evidence offered by the applicant was not credible. The uncontradicted
evidence of the applicant (from Drs. Govinder and Somers) was that Mr.
Patterson’s MS was “precipitated” by the PTSD.
[29] The VRAB seems to have been
heavily influenced by the fact that the MS was diagnosed in September 2000
while the PTSD was diagnosed in January 2002 – such that the PTSD was
consequent to the MS and not the reverse. In my view, the Board failed to
properly consider that it does not necessarily follow from the date of
diagnosis that the patient did not suffer from the disease or condition prior
to that date. The fact that one has felt ill for a few days before going to a
doctor who diagnoses that one is suffering from the flu does not mean that one was
not suffering from the flu in the preceding days.
[30] In this case, the uncontradicted
evidence of Dr. Somers is that Mr. Patterson was suffering from PTSD well prior
to the 2002 diagnosis and she expresses the view that it was prior to 2000
during his period of “medical uncertainty”.
[31] Just as Mr. Patterson was
suffering from PTSD prior to its date of diagnosis the same may be true of his
MS. There is some evidence in the record that MS was suggested as a cause of
his symptoms in 1998; however, there is nothing in the record that confirms
that that period of illness was MS related. It may have been a discrete
illness, such as a virus or flu, as some doctors suggested at the time.
[32] It appears that the basis for the
VRAB refusing to accept that the MS was caused or aggravated by his PTSD was
that there was no medically accepted textbook evidence for this causal
relationship. However, the uncontradicted evidence of the medical witnesses
was that in Mr. Patterson’s case, the PTSD did cause the MS. It was
unreasonable to reject that evidence on the basis of the passage in the Guidelines
that related to Arterial Sclerosis, a different disease.
[33] For these reasons the decision of
the VRAB is quashed and the matter is remitted back to the Board for a
determination by a different panel.
[34] The applicant asked for costs to
be awarded and proposed that $2,500 was an appropriate amount. The respondent
did not dispute that assessment. Costs of $2,500 will be ordered payable to
the applicant.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1.
The
decision of the Veterans Review and Appeal Board dated January 31, 2008, is
quashed and referred back for a determination by a differently constituted
board; and
2.
The
applicant is awarded costs fixed at $2,500.00
“Russel
W. Zinn”
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