Date: 20110413
Docket: T-235-09
Citation: 2011
FC 453
Ottawa, Ontario, April 13, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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FIONA G. MCLEAN
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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
Introduction
[1]
Ms.
Fiona McLean (the “Applicant”) seeks judicial review of a decision made by the
Veterans Review and Appeal Board (the “VRAB” or the “Board”) on January 12,
2009. In that decision, the Board denied the Applicant’s request for a further
disability pension, pursuant to subsection 21(5) of the Pension Act,
R.S.C. 1985, c. P-6 (the “Act”).
Background
[2]
The
Applicant, a lawyer, is a member of the Canadian Armed Forces Reserves. She
acquired status as a reservist in 1987 and has continued to serve in that
capacity. In the course of her service she sustained injuries for which she
requested pension benefits under the Act.
[3]
By
a decision dated March 5, 2004, the Department of Veteran Affairs (the
“Department”) awarded the Applicant a partial disability pension for the
medical condition Mechanical Low Back Pain. That decision stated that the
condition of Mechanical Low Back Pain is pensionable pursuant to subsection
21(2) of the Act. The pension was assessed at 5 percent, effective October 14,
2003, pursuant to subsection 39(1) of the Act.
[4]
The
decision of March 5, 2004 also contained the following statement:
The diagnosis of mechanical low back pain
is recorded on a Medical Examination dated June 08, 2001, and your Physician’s
Statement dated December 04, 2003, contains a provisional diagnosis of
lumbar/thoracic strain.
[5]
By
application dated March 18, 2004, the Applicant requested a further disability
pension in respect of pain in her lower back, with associated problems in her
left neck, headaches and range of movement and problems with her left shoulder.
The conditions for which the Applicant was seeking a further pension were described
in the Department’s “First Application Condensed Summary” as being “Intrascapular/Suprascapular
Muscle Spasm consequential to Mechanical Low Back Pain”; “Trapezius Muscle Spasm
consequential to Mechanical Low Back Pain”; and “Thoracic Paraspinal Muscle Spasm
consequential to Mechanical Low Back Pain”.
[6]
The
Applicant’s pension request was reviewed by a pension adjudicator within the
Department. In a decision dated May 11, 2006, the Applicant’s application for
consequential disability pension was declined on the basis that a “confirmed
diagnosis of a chronic medical condition has not been established…” [emphasis
in original].
[7]
In
this letter, the pension adjudicator went on to say that the Department had
reviewed medical questionnaires, dated February 9, 2006. These questionnaires
were completed by a Dr. Peter Neary, an attending physician to the Applicant.
Dr. Neary had expressed the opinion that the Applicant’s spasms were “…secondary
to the pensioned lower back condition…”. However, the Department did not share
that opinion and noted that “…current medical literature does not support a
cause and effect relationship between the claimed muscle spasms and your
pensioned mechanical low back pain”.
[8]
The
Department concluded that no confirmed diagnosis of a chronic medical condition
had been established and that in the absence of medical evidence to support a
consequential relationship, no pension entitlement could be granted pursuant to
subsection 21(5) of the Act.
[9]
The
Applicant sought Departmental Review of the May 11, 2006 decision. In a letter
dated August 14, 2007, she was advised that upon a Departmental Review, the
Department confirmed the decision made on May 11, 2006. In this Departmental Review,
the Department acknowledged receipt of an independent medical report dated
January 17, 2007 from Dr. Richard Hu. This report was submitted as new
evidence. However, the Department discussed this independent medical report
only briefly in the following terms:
The Department acknowledges the
additional medical evidence presented. It is medically accepted by the Department
that the spinal segments, i.e. cervical, thoracic and lumbar segments, do not
contribute to degenerative changes or spasms in each other. Any altered posture
or gait due to your lower back disability is not considered to place stress on
the thoracic or cervical spine.
[10]
Pursuant
to section 84 of the Act and section 18 of the Veterans Review and Appeal
Board Act, S.C. 1995, c. 18, the Applicant sought entitlement review before
the Board. In a decision dated March 20, 2008 the Board dismissed the
Applicant’s review and affirmed the Departmental Review decision dated August
14, 2007.
[11]
In
its decision the Board made the following introductory comments:
A Departmental Review decision dated 14
August 2007 confirmed the Minister’s decision of 11 May 2006, which denied the
Applicant pension entitlement for the claimed conditions pursuant to subsection
21(5) of the Pension Act. The Departmental Review decision noted that
although the Applicant related the spasms of her upper thoracic region of her
back were due to her pensioned condition of Mechanical Low Back Pain, it
considered that a spasm was a symptom of an underlying condition and that
current medical literature does not support a cause-and-effect relationship
between the Applicant’s claimed muscle spasms and her pensioned Mechanical Low
Back Pain. In this determination, the Minister acknowledged that the Applicant
brought forward an opinion from her physician that her spasms were secondary to
her pensioned lower back condition, and the spasms only occurred with lower
back flare-ups.
The Departmental Review decision also
considered a medical report from Dr. Richard Hu dated 17 January 2007, and
indicated it is medically accepted that the spinal segments, i.e. cervical,
thoracic and lumbar segments, do not contribute to degenerative changes or
spasms in each other, and any altered posture or gait due to the lower back disability
is not considered to place stress on the thoracic or cervical spine. Further,
the decision indicated that a confirmed diagnosis of a chronic medical
condition was not established, and that particular muscle groups were not
identified.
[12]
The
Board reviewed the facts and acknowledged various medical reports, including
the independent medical report from Dr. Hu. The Board quoted from parts of that
report, including the physician’s impression of the Applicant’s injuries, as
follows:
The Panel notes that Dr. Richard Hu, in
his report of 17 January 2007, identifies the following, in part:
IMPRESSION
Ms. McLean’s presentation is very
consistent with pain originating from the mechanical structures in the low
back. She has documented evidence on x-ray from May of 1999 that there was a
chronic spondylolisthesis and pars interarticularis defect at the L5-S1 level.
This likely was asymptomatic prior to the increased physical demands in 1998
and there likely was initiation of mechanical symptoms and instability as a
result of the significantly increased physical demands placed upon Ms. McLean’s
spine.
In addition to the spondylolisthesis, Ms.
McLean has clinical evidence of a scoliosis in the thoracic and lumbar spine.
She has a relatively well balanced right thoracic and left lumbar scoliosis.
Despite being balanced in the medical sense there is clearly asymmetry of the rib
cage and musculature in the peri-scapular area in the upper thoracic region…
My suspicion in Ms. McLean’s case is that
the physical activity and demands Ms. McLean experiences in her military
training can initiate pain in the previously non-painful back. The
spondylolisthesis was present for a long duration, however, there is no way
that I can categorically quantify the time of occurrence of the
spondylolisthesis.
In regards to scoliosis, I believe that
it is likely the scoliosis was present from adolescence, however, was not
symptomatic in nature.
Based upon my assessment of the
documentation and my assessment of Ms. McLean it is likely that the increased
physical demands of Ms. McLean’s military training initiated the onset and
development of these symptoms.
In regards to occurrence of pain
elsewhere in the spine as a result of localized injury in another area of the
spine this occurs relatively frequently. The muscle groups throughout the spine
have a large amount of overlap between their origin and their insertions. Thus,
occurrence of pain and spasm in one area of the spine can translate into pain
and spasm in other areas of the spine.
This migration of pain from the left
lower back area coupled with a diffuse change in alignment such as scoliosis as
a result of pain can then manifest as increasing pain and be more noticeable
than in the individual without significant spinal deformity.
[13]
The
Board interpreted Dr. Hu’s opinion as meaning that the Applicant suffers from
scoliosis and spondylolisthesis and “…likely has overlapped pain with regard to
her pensioned condition of Mechanical Low Back Pain”. Nonetheless, the Board
found that the Applicant had failed to establish a causal relationship between
the claimed condition and the previously pensioned Mechanical Low Back Pain.
Accordingly, the Board rejected the Applicant’s request for entitlement review.
[14]
The
Applicant appealed the entitlement review panel decision before the Board. In a
decision dated January 12, 2009, the Board dismissed the appeal. The Board
ruled that entitlement was denied for the disabilities cited by the Applicant
on the grounds that “they are not a consequence of the pensioned condition of
Mechanical Low Back Pain”.
[15]
In
its decision upon the entitlement appeal, the Board referred to the governing
legislation, that is the Act and the Veterans Review and Appeal Board Act,
and noted that in determining pension entitlement, it must liberally construe
the relevant legislation.
[16]
The
Board identified the issue before it as being whether “the claimed conditions
are, in whole or in part, consequential to the pensioned condition”. In this
case, the pensioned condition is Mechanical Low Back Pain.
[17]
The
Board found that the Applicant had not established entitlement to a
consequential pension on the grounds that the evidence did not establish that
the “claimed conditions are consequential to the pensioned condition,
mechanical low back pain”.
[18]
The
Board referred to the independent medical report of Dr. Hu and noted the
following from page 8 of his report:
In addition to this, Ms. McLean has
mechanical symptoms from the paraspinal and peri-scapular muscles in the
cervical, thoracic and lumbar spine that are related to the increased physical
demands placed upon a spine with scoliosis and chronic lumbar disease such as
spondylolisthesis, the pensionable disorder in this case.
[19]
The
Board went on to make the following conclusion:
However, spondylolisthesis is not the
pensioned disorder; rather the pensioned disorder, in relation to which the
consequential entitlement is claimed, is mechanical low back pain. As a result,
Dr. Hu’s medical report does not support the claim for consequential pension
entitlement.
Therefore, the 20 March 2008 decision of
the Review Panel is affirmed.
Submissions
(i) The
Applicant’s Submissions
[20]
The
Applicant argues that the Board committed several errors in reaching its
decision. Although she sets out 13 separate issues, they can be summarized as
being a failure on the part of the Board to respect the direction set out in
subsection 5(3) of the Act and section 39 of the Veterans Review and Appeal
Board Act concerning the drawing of favourable inferences in favour of the
Applicant, as well as various failures by the Board to consider and weigh
relevant and probative evidence, including evidence from her medical advisors.
(ii) The
Respondent’s Submissions
[21]
The
Attorney General of Canada (the “Respondent”) takes the position that the Board
reached a reasonable decision, having regard to the evidence before it.
Discussion and
Disposition
[22]
The
first matter to be addressed is the applicable standard of review.
[23]
In
Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the Supreme Court of
Canada determined that administrative decisions made by statutory
decision-makers are reviewable on one of two standards, that is reasonableness
or correctness. The standard of reasonableness will apply to findings of fact,
findings of credibility and questions of mixed fact and law; see Dunsmuir at
para. 53.
[24]
In
its decision in Dunsmuir, the Supreme Court also observed that where
prior jurisprudence has established the standard of review that should apply in
a particular case, that standard can be followed. In this regard, I refer to
paragraph 57.
[25]
The
prior jurisprudence has already established that in cases involving weighing of
evidence pursuant to the Act and the Veterans Review and Appeal Board Act,
the applicable standard is patent unreasonableness. Subsequent to the release
of the decision in Dunsmuir, the Federal Court confirmed that decisions
of the Veterans Review and Appeal Board, involving questions of fact and the
weighing of evidence, should be reviewed on the standard of reasonableness; see
Goldsworthy v. Canada (Attorney General), 2008 FC 380 and Dugré v.
Canada (Attorney General), 2008 FC 682.
[26]
Insofar
as the Applicant in the present case invokes errors of law on the part of the
Board in applying section 39 of the Veterans Review and Appeal Board Act
and subsection 5(3) of the Act, in Goldsworthy at para. 10, the Court made
the following observations:
Although the Applicant characterizes all
the issues as errors of law, it is my view that issue (ii), which involves the
Board's appreciation and assessment of the evidence, is a fact-driven matter
that should be reviewed on a reasonableness standard. Issues (i) and (iii) involve
questions that are mixed questions of law and fact. Issue (i) really asks
whether, in the circumstances of this case, the Board was obliged under section
38(1) of the Act to seek its own medical opinion and issue (iii) addresses
whether section 39 of the Act was properly applied given the Board's finding
that the Applicant's evidence was credible. In my view, because the legal
aspects of these questions arise under the Act and are not matters that go to
the heart of the administration of justice, it is appropriate to review these
issues on a reasonableness standard (see Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008
SCC 9 at para. 60).
[27]
In
accordance with the prevailing jurisprudence I am satisfied that the Board’s
decision in the present case is subject to review upon the standard of
reasonableness.
[28]
The
Applicant, as a serving reserve member of the Canadian Armed Forces, is
entitled to seek a pension pursuant to paragraph 21(2)(a) of the Act which
provides as follows:
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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;
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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;
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[29]
The
statutory scheme of the Act allows a person such as the Applicant to apply for
a pension. The pension application is initially reviewed by a delegate of the
Minister of Veterans Affairs. If an applicant is dissatisfied with the initial
decision, he or she may seek Departmental Review pursuant to section 82 of the
Act. That is what happened in the present case.
[30]
A
negative determination upon Departmental Review may be appealed to the Veterans
Review and Appeal Board pursuant to section 84 of the Act and section 18 of the
Veterans Review and Appeal Board Act. The powers of the Board
upon an application for review are set out in section 21 of the Veterans Review
and Appeal Board Act as follows:
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21.
A review panel may
(a)
affirm, vary or reverse the decision of the Minister being reviewed;
(b)
refer any matter back to the Minister for reconsideration; or
(c)
refer any matter not dealt with in the decision back to the Minister for a
decision.
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21. Le
comité de révision peut soit confirmer, modifier ou infirmer la décision
qu’on lui
demande
de réviser, soit la renvoyer pour réexamen au ministre, soit déférer à ce
dernier toute question non examinée par lui.
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[31]
Section
25 of the Veterans Review and Appeal Board Act provides a right of
appeal before the Board, as follows:
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25.
An applicant who is dissatisfied with a decision made under section 21 or 23
may appeal the decision to the Board.
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25. Le
demandeur qui n’est pas satisfait de la décision rendue en vertu des articles
21 ou 23 peut en appeler au Tribunal.
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[32]
Section
29 of the Veterans Review and Appeal Board Act describes the mandate of
the Board when sitting in an appeal pursuant to section 25, as follows:
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29.
(1) An appeal panel may
(a)
affirm, vary or reverse the decision being appealed;
(b)
refer any matter back to the person or review panel that made the decision
being appealed for reconsideration, re-hearing or further investigation; or
(c)
refer any matter not dealt with in the decision back to that person or review
panel for a decision.
Where
matter cannot be referred to review panel
(2)
Where the members of a review panel have ceased to hold office or for any
other reason a matter cannot be referred to that review panel under paragraph
(1)(b) or (c), the appeal panel may refer the matter to the Chairperson who
shall establish a new review panel in accordance with subsection 19(1) to
consider, hear, investigate or decide the matter, as the case may be.
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29.
(1) Le comité d’appel peut soit confirmer, modifier ou infirmer la décision
portée en
appel,
soit la renvoyer pour réexamen, complément d’enquête ou nouvelle audition à
la personne ou au comité de révision qui l’a rendue, soit encore déférer à
cette personne ou à ce comité toute question non examinée par eux.
Nouveau
comité de révision
(2)
Lorsqu’elle ne peut être renvoyée au comité de révision parce que ses membres
ont cessé d’exercer leur charge par suite de démission ou pour tout autre
motif, la décision peut être transmise au président afin qu’il constitue,
conformément au paragraphe 19(1), un nouveau comité de révision pour étudier
la question.
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[33]
The
Board’s assessment of the evidence before it is to be informed by the Act and
the Veterans Review and Appeal Board Act. Sections 2 and 5 of the Act
provide as follows:
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Construction
2. The
provisions of this Act shall be liberally construed and interpreted to the
end that the recognized obligation of the people and Government of Canada to
provide compensation to those members of the forces who have been disabled or
have died as a result of military service, and to their dependants, may be
fulfilled.
…
Powers of the
Minister
5. (1) Subject
to this Act and any other Act of Parliament and to the regulations made under
this or any other Act of Parliament, the Minister has full power to decide on
all matters and questions relating to the award, increase, decrease,
suspension or cancellation of any pension or other payment under this Act and
to the recovery of any overpayment that may have been made.
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Règle
d’interprétation
2. Les
dispositions de la présente loi s’interprètent d’une façon libérale afin de
donner effet à l’obligation reconnue du peuple canadien et du gouvernement du
Canada d’indemniser les membres des forces qui sont devenus invalides ou sont
décédés par suite de leur service militaire, ainsi que les personnes à leur
charge.
…
Ministre
5. (1)
Sous réserve des autres dispositions de la présente loi ou de toute autre loi
fédérale ou de leurs règlements, le ministre a tout pouvoir de décision en ce
qui touche l’attribution, l’augmentation, la diminution, la suspension ou
l’annulation de toute pension ou autre paiement prévu par la présente loi
ainsi que le recouvrement de tout versement excédentaire.
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[34]
Sections
3 and 39 of Veterans Review and Appeal Board Act are relevant to the
assessment of the evidence and provide as follows:
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Construction
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.
…
Rules
of evidence
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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Principe
général
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.
…
Règles
régissant la preuve
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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[35]
Sections
3 and 39 of the Veterans Review and Appeal Board Act have been
interpreted to mean that a person seeking benefit must submit sufficient
evidence to establish a causal link between his or her injury or disability and
his or her period of service. These statutory provisions do not relieve an
applicant for a disability pension under the Act from the obligation of
adducing sufficient probative evidence to meet the requirements for the award
of a disability pension. In this regard, I refer to the decisions in Hall v.
Canada (Attorney General) (1998), 152 F.T.R. 58;
aff’d (1999), 250 N.R. 93 (F.C.A.), Tonner v. Canada (1995), 94 F.T.R.
146; aff’d [1996] F.C.J. no. 825 (F.C.A.) and MacKay v. Canada (Attorney General) (1997), 129 F.T.R. 286.
[36]
In
the present case, the Board was in possession of three earlier decisions made
concerning the Applicant’s request for a consequential pension,
that is the Minister’s decision as per his delegate dated May 11, 2006; the
Departmental Review decision dated August 14, 2007; and the entitlement review
decision dated March 20, 2008.
[37]
The
medical evidence before the Board is contained in the Tribunal Record that was
prepared by Kathleen Vent, Legal Advisor to the Board. The medical information
consists of the following documents:
i) Report
from Radiology Consultants Associated referring to an examination conducted
November 28, 2003;
ii) Report
dated April 1, 2004 from Terry Lumney,
physiotherapist with Advanced Massage &
Associated Therapies;
iii) Physician
Statement: Musculoskeletal - Left Shoulder Conditions dated April 12, 2005;
iv) Physician
Statement: Musculoskeletal Cervical Spine conditions dated April 12, 2005;
v) Physician
Statement: Musculoskeletal Thoracic-Lumbar Spine and Sacroilliac Joint conditions
dated April 12, 2005;
vi) Medical
Questionnaire: Musculoskeletal Upper Limb and Chest Conditions referring to
examination on February 9, 2006;
vii) Medical
Questionnaire: Musculoskeletal Cervical Spine Conditions referring to
examination conducted on February 9, 2006;
viii) Medical
Questionnaire: Musculoskeletal Thoracolumbar Spine, Pelvic and Sacroiliac Joint
Conditions referring to examination conducted on February 8, 2006;
ix) Independent
medical report prepared by Dr. Richard W. Hu, Orthopaedic Surgeon, dated
January 17, 2007;
x) Report
dated June 20, 2006 from Bionomics Center from Dr. Michael P.
Sawa, a licensed chiropractor; and
xi) Letter
dated March 2008 from the Applicant to Dr. Peter Neary with confirmation by Dr.
Neary that the condition for which the Applicant seeks a consequential pension
are chronic conditions.
[38]
The
Board determined that the medical evidence did not show a causal connection
between the Applicant’s pensioned condition of Mechanical Low Back Pain and the
conditions of scoliosis and spondylolisthesis. It focused on one sentence in
the lengthy independent medical report that had been prepared by Dr. Hu to
conclude that Dr. Hu’s opinion should be discounted because he called the
sponylolisthesis the “pensionable disorder in this case”.
[39]
Obviously,
this is an error by Dr. Hu but that does not justify the Board’s apparent
wholesale rejection of his report.
[40]
Indeed,
since it focused exclusively on Dr. Hu’s report and did not refer to the other
medical reports, including those of Dr. Neary, the Board effectively disregarded
the evidence that was before it.
[41]
The
reports prepared by the Physiotherapist Lumney, Dr. Neary and Chiropractor Dr.
Sawa provide evidence in support of the Applicant’s claim. These reports are consistent
with the report of Dr. Hu. In my opinion, the Board should have discussed these
reports and given reasons for rejecting them, if that is what they intended to
do.
[42]
Having
regard to the medical evidence contained in the Tribunal Record, the
Department’s own guidelines and the statutory presumptions set out in
both the Act and the Veterans Review and Appeal Board Act, I am
satisfied that the decision under review does not meet the applicable standard
of review.
[43]
In
the result, the decision of the Board dated January 12, 2009 is set aside and
the matter is remitted for re-determination before a different panel of the
Board.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review is allowed.
The decision of the Board dated January 12, 2009 is set aside and the matter is
remitted to a differently constituted panel of the Board for re-determination.
The Applicant shall have her taxed costs in accordance with Column III, Tariff
B of the Federal Courts Rules, SOR/98-106.
“E.
Heneghan”
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