Docket: T-1821-19
Citation: 2021 FC 708
Ottawa, Ontario, July 5, 2021
PRESENT: The Honourable Justice Fuhrer
| BETWEEN:
|
| KHALID ABDULLE
|
| Applicant
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant, Khalid Abdulle, is a veteran of the Regular Forces of the Canadian Armed Forces where he served for just over eleven years as a Signal Officer from December 14, 2005 to January 12, 2017. The medical exam at the time he enrolled did not reveal any back issues.
[2]
Mr. Abdulle suffered three back injuries during his service. The first injury occurred in 2007 while he was moving a military-issue barrack box from under his bed. He sustained the second injury in 2009 while performing reverse crunches. Both of these injuries were considered “soft tissue”
injuries. An x-ray about one month after his 2009 injury, however, disclosed degenerative disc disease. The third injury happened in 2015 while he was moving his military kit back to storage after cleaning. Following an MRI in January 2018, about one year after his release from service, Mr. Abdulle was diagnosed with disc disease.
[3]
Mr. Abdulle applied for, but was denied, a disability pension from Veterans Affairs Canada regarding the lumbar degenerative disc disease that had developed since his enrollment in 2005, because the disability was not considered as “resulting from a service-related injury or disease”
pursuant to section 45 of the Veterans Well-being Act, SC 2005, c 21 [VWBA]. Through successive review, appeal and reconsideration proceedings, Mr. Abdulle eventually was granted a four-fifths disability (or pain and suffering) entitlement; one-fifth pension was withheld because of missing information regarding the cause of his degenerative disc disease disclosed by the x-ray in 2009.
[4]
In its second reconsideration, the Reconsideration Panel [Panel] of the Veterans Review and Appeal Board Canada [Board] declined to re-open the initial reconsideration decision that awarded Mr. Abdulle his four-fifths pension. In the initial reconsideration, the Panel accepted that Mr. Abdulle aggravated his back condition in the course of cleaning his military kit in 2015 and that such injury was service-related.
[5]
In his judicial review application brought pursuant to s.18.1 of the Federal Courts Act, RSC 1985, c F-7, Mr. Abdulle seeks an Order quashing or setting aside the Panel’s second reconsideration decision, and requiring the Panel to grant him the full disability pension or, alternatively, referring the matter back to a differently constituted panel for redetermination. Mr. Abdulle contends that (i) the Panel acted unfairly in denying him the full disability pension because the same panel that made the initial reconsideration determination also made the second reconsideration decision under review, and (ii) the second reconsideration decision is unreasonable.
[6]
Having regard to section 32 of the Veterans Review and Appeal Board Act, SC 1995, c 18 [VRAB Act], I disagree that the Panel acted unfairly, as claimed. I agree with the Applicant, however, that the decision is unreasonable in the circumstances. In my view, the Panel erred in its application of the VRAB Act sections 38 and 39, as well as paragraphs 50(f) and 51(b) of the Veterans Well-being Regulations, SOR/2006-50 [VWBR]. For the more detailed reasons that follow, I therefore grant the Applicant’s judicial review application. The second reconsideration decision is set aside and the matter will be sent back for redetermination by a differently constituted reconsideration panel.
II.
Relevant Provisions
[7]
See Annex “A”
below for the applicable legislative provisions.
III.
Standard of Review
[8]
Breaches of procedural fairness in administrative contexts have been considered subject to a “reviewing exercise … ‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied”
: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54. The duty of procedural fairness is context-specific, flexible and variable: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 77. In sum, the focus of the reviewing court is whether the process was fair and just.
[9]
Otherwise, the presumptive standard of review is reasonableness: Vavilov, at para 10. A reasonable decision must be “based on an internally coherent and rational chain of analysis”
and it must be justified in relation to the factual and legal constraints applicable in the circumstances: Vavilov, at para 85. Courts should intervene only where necessary. To avoid judicial intervention, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility: Vavilov, at para 99. The party challenging the decision has the onus of demonstrating that the decision is unreasonable: Vavilov, at para 100.
IV.
Analysis
A. Same Reconsideration Panel
[10]
I disagree with the Applicant’s assertion that neither Parliament nor the VRAB Act intended to prevent applicants from having fresh eyes review their application. In other words, the same three members of the Board should not be permitted to review an appeal and reconsider their own decisions. In my view, however, the Panel acted in accordance with its enabling statute and, thus, in that sense arrived at its decision fairly. Further, I find that “the issue could have been but was not raised”
with the administrative decision maker; in the circumstances, the Court has the discretion not to consider the issue: Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61 at paras 22-23.
[11]
In support of his assertion, the Applicant points to subsection 27(2) of the VRAB Act, which prohibits review panel members from sitting on an appeal panel. The Review provisions and the Appeals provisions of the VRAB Act indicate that review panels, on the one hand, and appeal panels, on the other hand, tend to be differently constituted and perform different functions. Further, subsection 32(1) of the VRAB Act provides that, on its own motion, or by application of a person, an appeal panel (of the Board) may reconsider a decision it made and confirm, amend or rescind the decision if it finds that an error was made regarding the interpretation of any law or any finding of fact. I note that the Review provisions similarly contemplate that a review panel, on its own motion, may reconsider a decision it made and confirm, amend or rescind the decision if it finds that an error was made regarding the interpretation of any law or any finding of fact: VRAB Act, subsection 23(1).
[12]
The enabling statute, therefore, empowers both review panels and appeal panels to reconsider their own decision. In my view, the grammatical and ordinary sense of the words “a decision made by it”
reflects Parliament’s expressed intention that the reconsideration panel, whether review or appeal, may be comprised of the same panel members who made the decision being reconsidered: Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27 at para 21. This includes any previous reconsideration decisions.
B. Second Reconsideration Decision
(1)
VRAB Act Section 38 – Medical Opinion
[13]
The Panel was empowered under Section 38 of the VRAB Act to obtain a more detailed medical opinion regarding the 2009 x-ray results, which the Panel believed would have been beneficial in the circumstances. Absent such medical opinion, I find the Panel’s conclusion that the x-ray results in 2009 cannot be related to the 2009 injury unreasonable, for the reasons explained below, in that it lacks internal coherence and is not justified in relation to the applicable facts and legal constraints: Vavilov, above at para 85.
[14]
The appeal and initial reconsideration decisions held that the x-ray result in 2009 that showed early signs of degenerative disc disease cannot be related to the 2009 injury, which occurred one month before the x-ray, because of the short period of time between the injury and the result. Contrary to the appeal decision, the initial reconsideration decision held that the 2015 injury was considered service-related but that it aggravated (permanently worsened) the disc disease that was present in 2009. Further, the initial reconsideration decision noted the September 10, 2018 letter from Dr. Dhami, Mr. Abdulle’s doctor, and held that, while the letter described the 2018 MRI results, it did not provide any details as to how the disc disease can be explained, in consideration of the previous soft tissue injuries. On this point, the decision concluded that, “[a] detailed medical opinion would have been beneficial to better understand the diagnosis in 2009.”
[15]
The initial reconsideration decision explained that, according to applicable Veterans Affairs Canada [VAC] Medical Guideline on Disc Disease, a specific injury is needed to result in long-standing damage to discs of the spine. Otherwise, discs tend to degenerate in all adults with the passage of time, regardless of occupational factors, unless there has been an acute work-related injury. Further, for disc disease to be worsened or accelerated because of an injury, the injury must have been acute and, expectedly, have provoked a recorded medical complaint at the time it happened or shortly after. If a 5-year window passes without complaint, an inference can be drawn that the injury did not result in permanent damage.
[16]
In addition, according to the VAC Entitlement Eligibility Guidelines [EEGs] for Osteoarthritis, a “specific trauma”
means a physical injury to a joint, including a fracture involving the intra-articular surface of the joint, surgery, and penetrating injuries from projectiles such as bullets and shrapnel.
[17]
While Mr. Abdulle’s 2015 injury was considered to meet the definition of trauma in both reconsideration decisions, his 2007 and 2009 injuries were soft tissue injuries that, according to his testimony, were not significant. The initial reconsideration decision confirmed the appeal decision to the effect that the 2009 x-ray is inconsistent with the reported 2007 and 2009 soft tissue injuries. The second reconsideration decision stated definitively that “the 2007 and 2009 incidents were soft tissue injuries, which eventually resolved and are not considered as trauma.”
The Respondent argues this is reasonable because the EEGs for Osteoarthritis specifically exclude soft tissue injuries from the definition of “specific trauma.”
[18]
While I agree these EEGs exclude certain types of soft tissue injuries (i.e. such as bursitis and tendonitis which produce acute signs and symptoms that may last for several weeks and do not result in an unstable joint), neither reconsideration decision mentions this exclusion. It is not for this Court, however, to back fill gaps in the decision maker’s reasons: Vavilov, above at para 96.
[19]
Instead, the Panel again concluded, in the second redetermination decision, that “such [x-ray] results in 2009, showing early signs of the degenerative process, cannot be related to the 2009 injury because of the short period of time between the injury and the results.”
This conclusion does not appear to be based on any independent medical advice, which Section 38 of the VRAB Act permits the Board to obtain.
[20]
Rather, the Panel referred to two conjunctive criteria to be met, as described in the EEGs, “[f]or cumulative joint trauma associated with occupations to cause [osteoarthritis] in an individual with a normal lumbar spine.”
The first criterion is that the “[c]umulative joint trauma associated with occupations should take place for at least 2 hours per day, on at least 51% of the days work for a period of at least 10 years”
[emphasis in original]. The second criterion is that the “[s]igns/symptoms of [osteoarthritis] should be present in the affected part of the lumbar spine during this timeframe or within 25 years after the activity ceases.”
[21]
Mr. Abdulle’s medical exam when he enrolled did not disclose any back issues. Further, at the time of his 2009 injury and subsequent x-ray, Mr. Abdulle had been a Signal Officer for just under 4 years. The Panel held that this was insufficient to satisfy the above criteria regarding the applicability of the “rigors of service.”
The Panel did not explain, however, if this was the basis for its conclusion that the x-ray results in 2009 cannot be related to the 2009 injury because of the short, one-month period of time between the injury and the results. In addition, the Panel does not appear to have considered whether Mr. Abdulle can be said to have had a “normal lumbar spine,”
given that within 4 years of enrollment x-rays disclosed early signs of degenerative disc disease. In my view, this gives rise to the question of whether the 2009 soft tissue injury, being the second of two such injuries within two years, fell within the exclusion or whether it could have constituted a specific trauma in Mr. Abdulle’s case. This the Panel also failed to consider, which I find was unreasonable.
[22]
Further, the Panel also referred to Dr. Dhami’s September 10, 2018 letter. The Panel held, in the second redetermination decision, that Dr. Dhami did not provide further details explaining how Mr. Abdulle’s disc disease can be explained in consideration of his previous soft tissue injuries. Yet, Dr. Dhami’s letter opines that, “[a]ctivities such as running and rucksack; and injuries that Mr. Abdulle has documented in Aug 2009 and Apr 2015, could have aggravated and contributed to his current back pain symptoms, leading to the current MRI findings.”
There is no suggestion in either reconsideration decision that Dr. Dhami’s medical advice or opinion was not credible. In fact, the appeal decision stated, “The Appeal Panel is not saying that Dr. Dhami is not credible as a doctor or professional…”
[23]
That said, the appeal panel found Dr. Dhami’s September 10, 2018 letter insufficient to establish a causal link (between military service and the claimed condition), although the initial reconsideration panel was prepared to find the military service an aggravating factor. The appeal panel further held that if Dr. Dhami had considered every possible factor, such as Mr. Abdulle’s trade, his actual physical training, etiology, injuries to soft tissue that resolved with treatment, previous injuries, and medical history, it would have expected the doctor’s opinion to cover these factors, in addition to the medical literature on degenerative disc disease/osteoarthritis. The initial reconsideration panel did not repeat this description of what it would have liked to see in a medical opinion. I am prepared to infer that this is what it had in mind when it stated that a detailed medical opinion would have been beneficial, in light of the fact that the appeal and initial reconsideration panels (as well as the Panel), were comprised of the same members in this case.
[24]
Previous jurisprudence of this Court, however, has held the fact that the section 38 of the VRAB Act permits the Board to seek medical advice, suggests that the Board does not have any specific medical expertise: Rivard v Canada (Attorney General), 2001 FCT 704 [Rivard] at para 40. In my view, this extends to whether a medical opinion is necessarily reflective of what the doctor may or may not have considered in reaching that opinion.
[25]
I agree with the Applicant that in the face of Dr. Dhami’s uncontradicted and seemingly credible medical advice or opinion, that is, without any supporting contrary evidence obtained by the Board pursuant to Section 38 of the VRAB Act, it was unreasonable for the Panel to draw its own medical conclusion that the 2009 injury and x-ray results were not related because the one-month period of time between these events was too short: Rivard, at para 42. I am not persuaded that the EEGs, in themselves and in Mr. Abdulle’s circumstances, contradict Dr. Dhami’s medical advice. I find it was within the Panel’s control to invoke section 38 to obtain the very opinion it stated, in the initial reconsideration decision, would have been beneficial in the circumstances, and containing what the appeal decision described as one that considered every possible factor: paraphrasing Rivard, at para 42.
[26]
I agree with the Respondent, however, that there is no basis for Mr. Abdulle’s suggestion, alternative or otherwise, that the Panel relied on medical evidence not disclosed to Mr. Abdulle concerning its conclusion about the 2009 injury and x-ray results not being related. That said, a future reconsideration panel should share with Mr. Abdulle any extrinsic information or medical report it obtains and on which it intends to rely, and provide him with an opportunity to make submissions regarding same, to ensure Mr. Abdulle knows the case to be met, and thus, avoid a potential breach of procedural fairness.
(2)
VRAB Act Section 39 – Rules of Evidence
[27]
Although the Panel acknowledged the evidentiary requirements stipulated in section 39 of the VRAB Act, I find that it did not apply them, thus rendering the second reconsideration decision unreasonable.
[28]
Section 39 of the VRAB Act requires the Board to draw reasonable inferences, from the circumstances and evidence, in favour of an applicant/appellant; to accept any credible, uncontradicted evidence presented by an applicant/appellant; and, in weighing evidence, resolve any doubt in favour of an applicant/appellant as to whether the applicant/appellant has established a case. This provision must be read in light of the overarching principle described in section 3, which stipulates that the provisions of the VRAB Act shall be construed liberally and interpreted with the goal of fulfilling the recognized obligation of Canadians and their government to those who have served their country well and to their dependents.
[29]
The VRAB thus was required to consider the entirety of Mr. Abdulle’s circumstances, with a liberal and generous interpretation of the evidence, to determine if his condition was sufficiently causally connected to his military service to establish eligibility for a disability (or pain and suffering) entitlement; in that regard, a connection other than a direct or immediate one may be sufficient: Ouellet v Canada (Attorney General), 2016 FC 608 [Ouellet] at para 56.
[30]
The initial reconsideration panel found, with reference to the 2018 MRI and Dr. Dhami’s September 10, 2108 letter, that the 2015 injury was service-related and that it aggravated the disc disease that was present in 2009. It held, however, that Dr. Dhami’s opinion was insufficient to establish a causal link, notwithstanding that Dr. Dhami’s letter opined service related activities of running and rucksack, as well as his 2009 and 2015 injuries, could have contributed to Mr. Abdulle’s back pain and the resultant MRI findings. It also held that there was insufficient time (one month) between Mr. Abdulle’s 2009 injury and the 2009 x-ray results for the injury to be causally related to his emerging disc disease.
[31]
In my view, sections 38 and 39 and the case law, when read together, require that contradictory evidence be adduced before rejecting the medical evidence Mr. Abdulle submitted; unless the Panel was satisfied that the evidence was not credible, which was not the case here, it could not reject Dr. Dhami’s opinion without having contradictory evidence before it: paraphrasing Rivard, at para 43. Further, although Dr. Dhami’s letter could have been more definitive regarding causal or aggravating factors, any doubt this raised should have been resolved in Mr. Abdulle’s favour, absent proof to the contrary which was lacking in this case. In addition, the Panel does not have the medical expertise to determine the sufficiency of the period of time between the 2009 injury and the subsequent 2009 x-ray results, nor to dismiss the 2007 and 2009 injuries as causally related to the emerging disc disease disclosed in 2009.
(3)
VWBR Sections 50(f) and 51 – Presumption of Fitness on Enrollment
[32]
Because there was no medical evidence in this case establishing beyond a reasonable doubt that Mr. Abdulle suffered any back issue prior to enrollment, I consider the Panel’s finding that a disease or injury might have been present on enlistment unjustified and, hence, unreasonable.
[33]
For the purpose of establishing entitlement to disability or pain and suffering compensation under the VWBA s 45, a presumption that an injury is service-related, or that a non-service injury is aggravated by service, is established, absent evidence to the contrary, if the veteran demonstrated that the injury or its aggravation occurred in the course of an established military custom or practice, whether or not failure to perform the act would have resulted in discipline: VWBR para 50(f). In this case, the initial reconsideration panel was satisfied that maintaining one’s military kit was part of the military custom and practice; hence, the disability (or pain and suffering) award.
[34]
In addition, VWBR para 51(b) provides that if the disability was not obvious at the time the veteran became a member of the forces, and was not recorded on their medical exam prior to enrollment, then there is a further presumption that the veteran had the medical condition found on their enrollment medical exam, unless medical evidence establishes “beyond a reasonable doubt”
that the disability existed prior to enrollment.
[35]
On a plain reading of VWBR paras 50(f) and 51(b), I find the Panel reasonably concluded that “[t]he presumption of fitness supposes there was no disability or disabling condition at the time of enlistment, unless it is recorded or obvious on medical examination.”
In my view, however, the Panel veered into unfounded speculation when it stated that, “a disease or injury may have been present on enlistment, but might not have been symptomatic or disabling.”
There simply was no medical evidence that established “beyond a reasonable doubt”
that Mr. Abdulle’s disc disease existed prior to his enrollment. To the contrary, his medical exam at the time of enrollment did not reveal any back issues.
[36]
Further, Mr. Abdulle provided evidence of two subsequent service related back injuries in 2007 and 2009, resulting in the 2009 x-ray results showing early signs of disc disease. As stated above, I am not persuaded that such evidence can be excluded pursuant to the EEGs.
V.
Conclusion
[37]
For the foregoing reasons, I grant the Applicant’s judicial review application. The Panel’s second reconsideration decision, having number 100003952184 and dated October 13, 2019, is set aside. The matter is referred back for redetermination by a differently constituted panel taking into account these reasons. The Applicant is entitled to his costs. If the parties cannot agree on an amount, they will have an opportunity to make costs submissions in turn as detailed below.
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