PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Kevin Gannon served in the Reserve and the Regular Canadian Armed Forces from 1988 to 1997. Prior to entering military service, he fractured his right wrist. At the time of his enlistment, military medical personnel described his wrist as "completely healed". Mr. Gannon now suffers from significant impairment in his right wrist. Mr. Gannon claims that:
(a) inaction on the part of military medical personnel in 1993; and
(b) physical activities associated with military service;
have led to significant impairment to his wrist.
[2] Mr. Gannon's application of February 24, 2003 to the Minister responsible for Veterans' Affairs for a disability pension was denied on August 13, 2003. That decision was affirmed by an Entitlement Review Panel (the Entitlement Panel) hearing on February 12, 2004 and again on an entitlement appeal heard by the Veterans Review and Appeal Board (the Appeal Board or VRAB) on October 5, 2004. Mr. Gannon seeks judicial review of the Appeal Board's decision.
Issues
[3] Aside from two minor preliminary questions, discussed below, this application involves one issue. That is, did the Appeal Board come to a patently unreasonable decision by ignoring or misapprehending the evidence, or by failing to apply the evidentiary rules found in s. 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the VRABA) in favour of Mr. Gannon?
Basis of Mr. Gannon's Claim
[4] It has been apparent, since at least 1993, that Mr. Gannon has a condition referred to as non-scaphoid union of his right wrist. Mr. Gannon's principal claim is an assertion that inaction on the part of the military and medical personnel in 1993, when the non-union of the scaphoid was detected, has led to or contributed to the development of the current condition. He alleges that the problems he now has are a result of that inaction and, thus, constitute a pensionable disability.
[5] This claim of mismanagement or negligence is clearly the claim that has been focused on by Mr. Gannon, and by all three decision-makers. However, in the original submissions to the Appeal Board, a further claim was mentioned briefly. Specifically, the Advocate who represented Mr. Gannon before the Appeal Board raised the possibility that the wrist injury arose from Mr. Gannon's "physical activities" during military service. The Advocate wrote the following:
[I]t is contended that the Appellant's duties within the Infantry and as a Traffic Technician led to physical demands of the upper extremities which could well have contributed to the development of the claimed condition. Although an injury within the military, per se, is not evident, it is contended that the overuse or repetitive strain associated with normal duties within the Appellant's trades could well have contributed to the development of this right scaphoid condition and therefore, pension entitlement can be granted on this basis as well.
[6] It does not appear that this second claim was actively pursued before the Appeal Board. Further, while it was referred to in the submissions to this Court, it was not argued before me by Mr. Gannon.
Appeal Board Decision
[7] The Appeal Board found that Mr. Gannon's condition did not arise out of, nor was directly related to, his service in the Forces, and affirmed the decision of the Entitlement Panel.
[8] The Appeal Board focussed on two pieces of evidence:
1. a letter from Dr. Verma, the Departmental Medical Advisor to the Minister of Veterans Affairs, which indicated that a conservative treatment (that is, no surgical treatment) of the scaphoid fracture in 1993 was consistent with the minor symptoms exhibited by the Applicant; and
2. a series of letters from Dr. Lalani, which concluded that the decision in 1993 not to operate on the Applicant's wrist injury was "mismanagement" which "resulted in a significantly higher risk of failure for a subsequent bone grafting procedure."
[9] The Appeal Board characterized this evidence as "two opposing opinions from physicians" and found that they were not medical opinions, but legal opinions about the nature of medical malpractice. The Appeal Board therefore engaged in its own analysis of malpractice, based on an objective, acceptable standard of medical care, determined by "considering the level of care which could reasonably be expected from a doctor of average training, skill and experience within the context of the prevailing circumstance."
[10] The Appeal Board stated that:
It is obvious from the medical entry of 19 May 1993 that treatment options were considered at that time and the choice was made to avoid invasive in favour of conservative treatment. Indeed, the Board also notes that there was really no further problem with the Appellant's wrist until he injured it again some six years after his military service has [sic] ended.
[11] The Appeal Board concluded that the standard of care provided by military doctors during the Applicant's service did not fall below a reasonable level. As a result, the Appeal Board found that Mr. Gannon did not have a pensionable disability under s. 21 of the Pension Act, R.S.C., 1985, c P-6.
Preliminary Matters
(a) Should the Appeal Board be a named Respondent?
[12] The first preliminary issue relates to the proper Respondent to this proceeding. The Appeal Board was named as a Respondent in this application. In general, the tribunal in respect of which the application is brought is not to be named as a Respondent to an application for judicial review (Rule 303(1), Federal Courts Rules, 1998, SOR/98-106, as amended). Accordingly, the VRAB will be struck as a Respondent, leaving the Attorney General of Canada as the sole Respondent.
(b) Should portions of Mr. Gannon's affidavit be struck?
[13] The second preliminary issue concerns the contents of the Applicant's record. Specifically, Mr. Gannon's record contains documentary evidence that was not before the Appeal Board. On judicial review a Court can consider only evidence that was before the administrative decision-maker whose decision is being reviewed and not new evidence (see, for example, Wood v. Canada(Attorney General) (2001), 199 F.T.R. 133, [2001] F.C.J. No. 52 (QL) at para. 34 (T.D.);Wannamaker v. Canada(Attorney General), [2006] F.C.J. No. 513 (QL); 2006 FC 400).
[14] The Respondent submits that portions of Mr. Gannon's affidavit be struck; in particular, those portions relating to his knee injury and associated treatments, pension claims and proceedings, including personal statements regarding his opinion of Dr. Verma's competence. It is submitted that these portions of the affidavit are "abusive, tenditious, improper and, in any case, clearly irrelevant, as the evidence was not before the decision-maker."
[15] Upon review of the Certified Tribunal Record, it appears that some evidence regarding Mr. Gannon's knee injury was before the Appeal Board, where that evidence also was relevant to the treatment of Mr. Gannon's wrist or to his general history within the Forces. The mere fact of Mr. Gannon's knee injury, as discussed in paragraph 5 of the affidavit, is not objectionable.
[16] However, a copy of Mr. Gannon's submissions before the Appeal Board indicates that no mention was made of the pension proceedings relating to his knee. The information contained in paras. 6-8 of the affidavit discusses in detail Mr. Gannon's pension proceedings regarding his knee injury. The purpose of paras. 6-8 and of the Exhibits B-G is clearly to discredit Dr. Verma, whose medical opinion was provided to the Minister and was referred to by the Entitlement Panel and the Appeal Board. Exhibits B to G are not found in the Tribunal Record and there is no indication that they were before the Appeal Board.
[17] Thus, the information contained in paras. 6-8 of the affidavit and in Exhibits B to G is not relevant to this judicial review and should be struck.
Analysis
[18] As noted, the submissions to the Appeal Board and to this Court have focussed on the alleged mismanagement of Mr. Gannon's wrist condition. Thus, I will do the same.
[19] A veteran of Canada's armed forces - either of reserve or regular service - may qualify for a disability pension where a pre-existing condition has been aggravated during his time in the armed forces. The worsening of such a condition may occur as a result of the member's military duties. In addition, the aggravation may be due to the actions of medical service providers during the time of the military service.
[20] A disability that results from inadequate medical care provided by military or authorized service providers is pensionable under s. 21 of the Pension Act (see Re Interpretation of Section 12 of the Pension Act (1978), 8 P.R.B.R. (No. 1) 3). This is because the Department of Defence assumes the obligation to provide adequate medical care to all servicemen. This responsibility obviously applies to injuries sustained during military service. However, this duty extends to all medical treatment received by the member during his or her time of service. Thus, when a disability flows from the negligence of armed forces medical personnel during treatment of a pre-existing condition, the negligence may create a new disability or contribute to the aggravation of the condition. This results in a pensionable disability.
[21] On this issue, the essence of Mr. Gannon's claim to the Appeal Board was quite simple. He asserts that inaction on the part of the military and medical personnel in 1993, when the non-union of the scaphoid was detected, has led to or contributed to the development of the current condition.
[22] To respond to Mr. Gannon's claim, the Board was required to determine whether Mr. Gannon received adequate medical care. In short, given the facts of this case, was non-intervention, rather than surgery, a reasonable medical option to attempt to correct the non-union scaphoid?
[23] The question of what caused Mr. Gannon's disability is a question of fact in respect of which the appropriate standard of review has consistently been held to be patent unreasonableness (Comeau v. Canada (Attorney General), 2004 FC 1091, [2004] F.C.J. No. 1323 (QL) at para. 51; Bradley v. Canada (Attorney General), 2001 FCT 793, [2001] F.C.J. No. 1152 (QL) at paras. 16 & 19; and Nisbet v. Canada (Attorney General), 2004 FC 1106, [2004] F.C.J. No. 1340 (QL) at paras. 8-13). Stated in other terms, the Appeal Board errs only if it based its decision on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the evidence (Hall v. Canada (Attorney General) (1998), 152 F.T.R. 58, [1998] F.C.J. No. 890 (QL) at para. 18 (T.D.), aff'd [1999] F.C.J. No. 1800 (F.C.A.)).
[24] In its decision, the Appeal Board stated that it had to choose between two opposing opinions, those of Dr. Verma and Dr. Lalani. The Appeal Board decided that their opinions were not medical opinions but opinions "on what constitutes medical mismanagement or negligence." In my view, this characterization incorrectly simplifies the whole of both doctors' opinions under one umbrella. Both doctors provided medical opinions regarding the likelihood of long-term complications arising from Mr. Gannon's injury, as well as their opinions on the proper medical treatment for that injury. Only the doctors' final statements in their letters, regarding whether there had been mismanagement in this case, extended beyond the boundary of medical opinion.
[25] There is a difference between stating what the accepted medical treatment would be, and whether the choice to pursue that treatment or another option is mismanagement. The former is a medical opinion; the latter is a legal one. Since the Appeal Board acknowledged that Dr. Lalani's opinion was the "most favourable" to Mr. Gannon and came from an orthopaedic surgeon, it follows that the Board may have come to a different conclusion if it had properly apprehended the nature of Dr. Lalani's opinion.
[26] Since significant portions of Drs. Verma and Lalani's opinions were medical rather than legal in nature, the Appeal Board was required to weigh this evidence and to assess the credibility of each report (see generally Metcalfe v. Canada (1999), 160 F.T.R. 281, [1999] F.C.J. No. 22 (QL) (T.D.); Schott v. Canada (Attorney General) (2001), 199 F.T.R. 225, [2001] F.C.J. No. 126 (QL) esp. at paras. 24-26 (T.D.); and Comeau, above). The reasons show no indication of that approach. Rather, the Appeal Board simply concluded that:
[I]t is obvious from the medical entry of 19 May 1993 that treatment options were considered at that time and the choice was made to avoid invasive in favour of conservative treatment.
[...]
While the choice of a different treatment option in 1993 or 1994 may possibly have led to a more positive result from the bone graft operation conducted some 10 years later by Dr. Lalani, the Board is not able to find that the choice which was made in the prevailing circumstances constituted medical mismanagement or negligence.
[27] The Appeal Board's conclusion that "treatment options were considered" is, in my view, insufficient. The Appeal Board failed to discuss or assess the conflicting medical evidence regarding what an accepted approach to the injury would have been. Dr. Lalani's opinion was that a "conservative treatment" (that is, no treatment at all) was not an appropriate response in any case; the Appeal Board should have discussed why it did not accept this evidence (Comeau, above at para. 61, in that case dealing with uncontradicted medical evidence). The Appeal Board could have made reference to the opinion of Dr. McAllister, an orthopaedic surgeon, which appears to support Dr. Verma's approach. Although I note that Dr. McAllister's wording is not as strong or as clear as Dr. Verma's, his is the only other medical opinion available. The omission, in the reasons, of any reference to Dr. McAllister's report supports a conclusion that the Appeal Board did not engage in a thorough examination of the medical evidence that was before it.
[28] Further, when presented with one medical opinion strongly in favour of Mr. Gannon's position, one against, and one which may be ambiguous, the Appeal Board was required not only to weigh the evidence but to apply the provisions of s. 39 of the VRABA:
| 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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[29] If the Appeal Board had not misapprehended the medical nature of the doctors' opinions, it would have gone on to explain why the conflict between Dr. Verma's and Dr. Lalani's reports was not resolved in the favour of Mr. Gannon pursuant to s. 39(c); and why it was not reasonable to draw an inference in his favour, pursuant to s. 39(a). This is not to say that the Appeal Board could not have found against Mr. Gannon; Dr. Lalani's and Dr. McAllister's reports provide credible, medical evidence in support of the medical treatment that Mr. Gannon received. It may have been open to the Appeal Board on this evidence to find against Mr. Gannon. The problem is that the Appeal Board appears to have ignored or misapprehended the nature of the evidence before it from Dr. Verma and Dr. Lalani.
[30] I must draw a conclusion similar to that in Schott, above at para. 26:
In this case, I am similarly of the view that the VRAB could have reached its conclusion only by ignoring the evidence of Drs. Hurley and Jaeger, misconstruing their evidence, or misdirecting itself as to the effect of section 39 of the Act, in the face of credible and trustworthy evidence. Although eluded by certainty, as in Metcalfe, supra, the VRAB had sufficient evidence to uphold the applicant's claim, had it complied with the directions of section 39.
[31] In other words, the Appeal Board based its decision on perverse or capricious findings made without regard to the evidence (s. 18.1(4)(d), Federal Courts Act). The decision should be set aside and the matter sent back for re-determination.
Conclusion
[32] For these reasons, the application will be allowed and the matter remitted to the Appeal Board for reconsideration by a different panel of the Appeal Board.
[33] As noted, the question of whether the wrist injury arose from his activities in the military was not argued before me. However, the record demonstrates that, at the time of enlistment, Mr. Gannon was given a full medical examination and his right wrist was declared "completely healed", with some limited movement noted. Yet, in 1993, a non-union scaphoid, with attendant problems and potential osteoarthritis, suddenly appeared. This raises the question of whether this "completely healed" wrist was re-injured during the time of his service. I hope that this issue is considered during the re-determination.
ORDER
This Court orders that:
- The application is allowed, with costs awarded to the Applicant;
2. This matter is remitted to the Appeal Board for re-determination;
- The Appeal Board is struck from the style of cause as Respondent; and
- Paragraphs 6 to 8 and Exhibits B to G of the affidavit of Mr. Gannon are struck.
"Judith A. Snider"
________________________
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2147-04
STYLE OF CAUSE: KEVIN GANNON v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 19, 2006
APPEARANCES:
| Mr. Ronald J. Obirek
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| Ms. Deborah Babiuk-Gibson
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SOLICITORS OF RECORD:
| Ronald J. Obirek Barrister & Solicitor Edmonton, Alberta
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| John H. Sims, Q.C. Deputy Attorney General of Canada |