Docket: T-2095-02
Citation: 2004 FC 616
Montreal, Quebec, April 26, 2004
Present: Mr. Justice Blais
BETWEEN:
STEVEN BOUCHER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of an October 23, 2002 decision of the Veterans Review and Appeal Board (the Board) appointed under the Veterans Review and Appeal Board Act, 1995, c. 18.
FACTS
[2] On October 23, 2002, the Board, sitting on appeal, awarded Mr. Steven Boucher (the applicant) a pension for a right knee problem, but refused to award a pension for two other health problems that the applicant claimed to have: mechanical lower back pain and right shoulder rotator cuff tendonitis.
[3] The applicant enlisted in the Forces on December 9, 1986, and was discharged on December 9, 1998. Over the course of his career in the Armed Forces, he allegedly had accidents that caused the health problems set out in his pension application filed in 1999. The minister and then the review board refused to recognize the right knee problem; the Board awarded the pension for the knee. Therefore, this application for judicial review relates only to the two other alleged conditions: the lower back pain and the tendonitis.
Right shoulder rotator cuff tendonitis
[4] The applicant claims that this problem dates back to an accident that occurred during training in February 1989; he says he fell into a trench and hit his right shoulder hard. Since then, the shoulder has given him trouble, including a lack of strength to lift heavy objects, and pain when sleeping on his right side.
[5] The accident is corroborated in a letter signed by another training participant. The accident is also confirmed by the medical record. Two weeks after the accident, the applicant went to the doctor, who diagnosed acromioclavicular joint strain. On April 15, 1994, a medical examination indicated "Right shoulder painful when laying down on that side or lifting heavy weight" (Board record, page 40). The record contains another complaint to the doctor on July 23, 1997.
[6] In August 1997, the applicant saw a specialist, who indicated that the persistent shoulder problem was probably due to an old acromioclavicular joint sprain:
This gentleman has a right shoulder complaint. I suspect it is related to an old Grade I AC separation. In addition, he has mild thoracic outlet type symptoms. I would certainly not recommend surgical intervention for either of these symptoms.
(Board record, pp. 70-71)
[7] Finally, at the medical examination prior to discharge from the Armed Forces, the doctor diagnosed right shoulder rotator cuff tendonitis.
[8] The Board, for its part, indicated in its decision:
[TRANSLATION] After thoroughly examining all of the documents in the record, the Board has found no medical evidence that would establish any connection between the right shoulder rotator cuff tendonitis diagnosed on discharge in 1998 and a sprained acromioclavicular joint in 1989 or any other injury sustained in the performance of the appellant's duties. In fact, Dr. McAllister indicated in 1997: "no instability of the shoulder. Rotator cuff strength is good." (Board record, p. 9)
[9] The Board agreed with the minister's November 1999 decision, according to which tendonitis is just an inflammation of the tendons and is "[TRANSLATION] considered temporary and does not usually result in permanent disability" (Board record, page 9). Finding no medical evidence of any link between the military service and the tendonitis, the Board dismissed the pension application in relation to the tendonitis.
Mechanical lower back pain
[10] The applicant claims to have sustained a back injury while carrying a heavy object with another person, who dropped the object, leaving the applicant holding the entire weight and affecting his back as a result. He also claims to have injured his back in 1997 while supplying a ship. He was examined by a doctor on that occasion.
[11] Unlike the previous problem, the first accident was not documented in the medical record at the time when it occurred. However, it is frequently mentioned by the doctors who examined the applicant subsequently; the medical reports also mention that the injury was aggravated by the accident in 1997 and by being aboard a ship at sea.
[12] In its decision, though it recognized the fact that the lower back problems did appear in the applicant's medical record, the Board wrote the following:
The Board, however, sees no evidence of an injury of sufficient severity to have caused a permanent disability and it is unable to recognize a relationship between the mechanical low back pain and the Appellant's peace time service.
(Board record, p. 39)
[13] On October 1, 2001, the applicant consulted a chiropractor, Dr. Lepage, for a back assessment. According to Dr. Lepage, the applicant presented scoliosis of the lumbar region due to a difference in the length of his legs and to an interarticular displacement of the L5 S1 vertebrae, with compensation between L1 and L4. Dr. Lepage concluded his report as follows:
[TRANSLATION] All of the points mentioned combine to indicate a chronic L4 L5 condition of traumatic origin that could be consistent with the events related by Mr. Boucher. The surrounding area shows kinetic joint instability compensated for by muscle tension. Mr. Boucher's condition thus causes him a permanent spinal disability . . .
(Board record, p. 26)
[14] With respect to the lower back pain, the Board found that the applicant had failed to establish a causal connection between the mechanical lower back pain and the performance of the appellant's duties. There was no report of any injury to the lumbar region when the first accident occurred. An X-ray dated April 1997 showed no anomaly.
[15] Furthermore, the Board was not convinced by Dr. Lepage's opinion; it found his explanation of how he arrived at his conclusion to be lacking, in that he neglected to consider other reasonable conclusions that could be based on the same facts. The Board held: "[TRANSLATION] Absent documentary evidence of major trauma to the lumbar region, it is impossible to say that the ailment in question [mechanical lower back pain] is attributable to the appellant's service in the Regular Forces."
LEGISLATIVE PROVISIONS
[16] In its consideration of the appeal, the Board is required to act in accordance with sections 3 and 39 of the VRABA, which set out the applicable rules of evidence:
| 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. |
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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. |
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| 39. In all proceedings under this Act, the Board shall |
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39. Le Tribunal applique, à l'égard du demandeur ou de l'appelant, les règles suivantes en matière de preuve : |
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| (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; |
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a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci; |
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| (b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and |
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b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l'occurrence; |
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| (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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c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande. |
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[17] The Pension Act sets out the conditions for awarding a pension for a disability connected with service in the Canadian Armed Forces in peace time:
| 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, |
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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 : |
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| (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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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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| (3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of |
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(3) Pour l'application du paragraphe (2), une blessure ou maladie -- ou son aggravation -- est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours : |
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| (a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority; |
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a) d'exercices d'éducation physique ou d'une activité sportive auxquels le membre des forces participait, lorsqu'ils étaient autorisés ou organisés par une autorité militaire, ou exécutés dans l'intérêt du service quoique non autorisés ni organisés par une autorité militaire; |
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| (f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and |
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f) d'une opération, d'un entraînement ou d'une activité administrative militaires, soit par suite d'un ordre précis, soit par suite d'usages ou pratiques militaires établis, que l'omission d'accomplir l'acte qui a entraîné la maladie ou la blessure ou son aggravation eût entraîné ou non des mesures disciplinaires contre le membre des forces; |
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| (g) the performance by the member of any duties that exposed the member to an environmental hazard that might reasonably have caused the disease or injury or the aggravation thereof. |
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ANALYSIS
Standard of review
[18] A number of decisions of this Court on judicial review of decisions of the Veterans Review and Appeal Board are based on the fact that there was a misinterpretation of sections 3 and 39 of the VRABA and of subsection 21(2) of the Pension Act. (See, for example, R.E.C. v. Canada (Attorney General), [1998] F.C.J. No. 1420; Bradley v. Canada (Attorney General), [2001] F.C.J. No. 1152). It is settled law that an error of law constitutes sufficient reason for the intervention of this Court, both according to administrative law standards and under the terms of the Federal Court Act itself, at paragraph 18.1(4)(c).
Causation under 21(2)(a)
[19] In his factum, the respondent makes a point of emphasizing the difference between the two subsections of section 21 of the Pension Act, the first having to do with wartime service, the second, service in peace time. For service in peace time, the very wording requires that it be established that the pensionable injury or disease arose out of or was connected with military service. Subsection 21(3) sets out the conditions under which an injury or disease will be presumed to have arisen out of or to have been connected with that service.
[20] Consequently, if it is necessary to establish a causal connection for the purposes of subsection 21(2), that connection is presumed to exist if the injury is incurred in the course of any military operation, training or administration.
[21] In Elliot v. Canada (Attorney General), [2002] F.C.J. No. 1264, upheld by the Court of Appeal [2003] F.C.J. No. 1060, and cited by the respondent, the Court on judicial review held that the causal connection between the ailment for which a pension application was made and military service had not been established. In that case, a member of the forces had suffered severe indigestion after a meal in the mess hall. A few years later, he was diagnosed with irritable bowel syndrome (IBS). The Board found that the causal connection had not been established, and the Court agreed.
[22] In Hall v. Canada (Attorney General), [1998] F.C.J. No. 890, Reed J. also found no causal connection. In that case, a member who had served in the reserve for one year apparently fell into a crevasse during a skiing exercise. On discharge, he signed a document indicating that he had not suffered any injury during his service. Ten years after his discharge, he applied for a pension for a problem with his cervical vertebrae.
Statutory presumptions and rules of evidence
[23] Section 39 of the VRABA is particularly clear about giving the benefit of the doubt to the appellant. If the evidence is uncontradicted and credible, it must be accepted if it is in the applicant's favour; if there is any doubt, it is to be resolved in favour of the applicant, and the Board must draw every reasonable inference from all the evidence presented.
[24] There are many similarities between Moar v. Canada (Attorney General), [1995] F.C.J. No. 1555, and the case at bar. In Moar, the Board found no causal connection between an accident in 1966 and an application on discharge from the military in 1986. In 1966, the applicant received a severe blow to the head that knocked him unconscious. He had neck problems from 1966 to 1980 but did not associate them with the 1966 accident. It was not until a skiing accident in 1980 that he was diagnosed with cervical disc degeneration. In 1994, an orthopaedic surgeon suggested in his report that the cervical disease was likely due to the 1966 accident. The Board dismissed this assumption, but the Court found for the applicant. The oft-cited Moar confirms the VRABA principle that any uncontradicted medical evidence must be accepted by the Board.
Application to the case at bar
[25] According to the respondent, the Board does not deny the existence of the applicant's current lower back pain and rotator cuff tendonitis problems; the problem is the causal connection.
[26] In the medical report at the time of discharge, dated November 5, 1998, the medical examiner listed the person's injuries or diseases, as the form indicates, in order of importance. The examiner completed this section by indicating first "right rotator cuff tendonitis ----- date of origin 1988", and second, "mechanical low back pain ----- date of origin 1990".
[27] With respect to the rotator cuff tendonitis, the most thorough examination of the right shoulder was performed by the specialist whom the applicant consulted in 1997 because of right shoulder pain. The specialist was of the view that the pain was related to trauma to the acromioclavicular joint, which would be consistent with trauma caused by a hard blow to the right shoulder. The specialist noted that the applicant attributed it to his fall ten years before; the doctor did not refute this assumption.
[28] In its decision, the Board rejected the tendonitis application because there was no medical evidence that made it possible to determine the cause of the ailment and its connection with the appellant's military service. However, the evidence did establish a number of facts: the existence of the problem (on discharge), the origin of the problem (the specialist's report), and the fact that the accident did occur (the letter). The fact is that unlike the situation in Elliot, supra, a doubt has been raised, and that doubt should be resolved in favour of the applicant unless there is medical evidence to the contrary. Furthermore, contrary to Hall, supra, the problem was documented a number of times over the course of the applicant's military career and reported on discharge by the medical examiner.
[29] As for the lower back pain, a number of doctors examined the applicant and identified the accident in which the applicant was carrying a heavy load while building a bridge as the origin of the problem. This evidence is uncontradicted. Here again the problem was noted by the medical examiner on discharge.
[30] The most thorough examination in this regard was in 2001, when the applicant consulted a chiropractor, whose diagnosis was "[TRANSLATION] a chronic L4 L5 condition of traumatic origin that could be consistent with the events related by Mr. Boucher."
[31] The Board chose to disregard Dr. Lepage's opinion, which it found unconvincing. According to the Board, Dr. Lepage should have considered other reasonable assumptions before reaching his own conclusion.
[32] It is not for the Board, in my view, to judge a health professional's methods. Dr. Lepage explained that the applicant's chronic condition was consistent with the facts that the applicant had related. Once again, the medical evidence was uncontradicted, and the Board does not have jurisdiction to disregard such evidence (Moar, supra). The Board said that it was not satisfied because Dr. Lepage did not consider other reasonable conclusions; this objection in itself is not valid and is certainly insufficient to refute a medical opinion.
[33] In view of the applicant's medical record and military service history, it appears that the Board did not follow the clear instructions of section 39 to draw every reasonable inference in favour of the applicant, accept the uncontradicted medical evidence, and resolve any doubt in favour of the applicant.
[34] For these reasons, I would allow the application for judicial review, set aside the Board's decision of October 23, 2002, and refer the matter back to a new panel of the Board.
ORDER
For these reasons, the COURT:
- Allows the application for judicial review;
- Sets aside the Board's decision of October 23, 2002;
- Refers the matter back to a new panel of the Board;
- With costs to the applicant.
"Pierre Blais"
Judge
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2095-02
STYLE OF CAUSE: STEVEN BOUCHER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Quebec City, Quebec
DATE OF HEARING: April 20, 2004
REASONS: BLAIS J.
DATE OF REASONS FOR ORDER
AND ORDER: April 26, 2004
APPEARANCES:
Côme Boucher FOR THE APPLICANT
Marie-Eve Sirois-Vaillancourt FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joli-Coeur, Lacasse, Geoffrion, Jetté, St-Pierre FOR THE APPLICANT
Sillery, Quebec
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec