Date: 20030620
Docket: T-1097-02
Citation: 2003 FCT 768
OTTAWA, Ontario, Friday, this 20th day of June, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
JOHN STUBER
Applicant
- and -
ATTORNEY GENERAL OF CANADA and
VETERANS REVIEW AND APPEAL BOARD OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Veterans Review and Appeal Board (the "VRAB") dated June 5, 2002, refusing the applicant's request to reconsider its prior decision not to award him an additional pension for an injury to his right knee. The issue in this application is whether the VRAB erred in concluding that the applicant had failed to present new evidence that would justify a reconsideration of his claim.
FACTS
[2] The applicant served in the Canadian Forces from August 16, 1950 to November 22, 1952, and is a veteran of the Korean War. In the course of his military service, the applicant injured his left knee and had a limp which gradually worsened until he had two operations in 1996. On October 1, 1997, the applicant was awarded a disability pension for injuries to his left knee attributable to his military service. On March 12, 1998, Mr. Stuber applied for a disability pension for a right knee condition (torn right meniscus) that he claims is a consequence of his pensioned left knee condition. According to the applicant, the injury to his left knee caused a limp in his gait that increased the stress on his right knee. He claims that the increased level of stress on his right knee is the cause of his torn right meniscus.
[3] Mr. Stuber's application was denied by the Minister of Veterans Affairs in a decision dated January 26, 1999. The Minister's delegate relied upon the Department's guidelines, which recognize that a shortened leg may alter a person's gait and may influence degenerative changes in the opposite knee to a minimal degree. The guidelines also address disturbances that alter one's gait, but are not the result of a shortened leg:
In general, it is not considered that an altered gait per se, in the absence of any real or functional shortening, contributes in any significant manner to degenerative changes in joints of either limb.
[4] The Minister's delegate was of the view that the applicant did not fit within the parameters of the departmental guidelines. The delegate found that there was "no medical documentation" upon which to conclude that the applicant's right knee injury was due to increased stress as a result of the injury to his left knee. Further, the evidence demonstrated that the applicant's leg lengths are equal and while his limp was noted by an orthopaedic surgeon in 1998, the same surgeon indicated that the applicant "walked absolutely normally" in a report dated May 12, 1997. This report was not before the Court.
[5] The Minister's decision was affirmed by the Entitlement Review Board on April 7, 1999 and the applicant appealed to the VRAB. A hearing was held before the VRAB on August 19, 1999. In support of his claim, the applicant presented a letter from his orthopaedic surgeon, Dr. Martin Grypma:
In summary, I feel that John's problem to his left knee has definitely created an increased load to his right knee. I am not sure that I can give you an exact percentage of the cause here but suffice it to say that there definitely is a relationship between the two knees and the fact that his left knee has significant damage and injury to it. There definitely is a possibility that it can cause trouble to his other knee. [Emphasis added.]
[6] The VRAB affirmed the decision of the Entitlement Review Board. In its decision, the VRAB rejected the evidence of Dr. Grypma by stating that it was "framed in terms of possibility and not probability, and the Board views the opinion therefore as speculative and conjecture". Upon reviewing the evidence, the VRAB concluded that there was not a consequential relationship between the torn right meniscus and the applicant's left knee injury.
[7] The applicant applied for reconsideration of the decision of the VRAB on January 20, 2000. A medical opinion from another orthopaedic surgeon, Dr. Michael P. Bering, dated November 24, 1999 was submitted as new evidence. In his opinion, Dr. Bering stated:
Could this condition aggravate or predispose to a problem in the right knee? Yes. I think the Veteran's Appeal Board is splitting hairs when it talks about probability versus possibility. No one can say with 100% certainty. However, if you are asking me whether it can aggravate the right knee as a result of a limp on the left side, I would say the answer is yes. I think of significance is Mr. Stuber did not have any particular injury that resulted in the problems in his right knee. This gives more support to the probability that the right knee was at the very least aggravated if not induced by increasing limp and pain in the left knee.
[8] The application was refused on January 26, 2000. The VRAB was of the view that the evidence of Dr. Bering was essentially the same as that of Dr. Grypma except for the change of the word "possibility" to "probability". The panel noted that the Dr. Bering did not discuss the causative factor for the right knee condition and only stated that the right knee condition could have been aggravated by the applicant's limp. In the panel's view, as Dr. Bering failed to adequately explain what he meant by aggravated, he did not provide any clear rationale for his opinion and was held not to be credible under the circumstances.
[9] A second application for reconsideration was brought on April 17, 2000. It was accompanied by a second letter from Dr. Bering dated March 8, 2000 that addressed comments made by the VRAB in its decision. In his letter, Dr. Bering stated:
With regards to the menical [sic] tear. Mr. Stuber could have easily slipped on the ice and torn his meniscus. He could have easily slipped off a step and torn his meniscus. However, he has never related to me upon any history and questioning of any injury to the right knee at all. However, it is possible that during the time when Dr. Grypma documented this significant limp of his left knee that he could have suffered a medial meniscal tear of the right knee by stepping abnormally on it because of an avoidance pain response in the left knee. Unfortunately, there's absolutely no way to prove this and by no means am I saying that this is 100% certainty. As I stated earlier, the meniscus degenerates with age, it takes less and less force to propagate a tear.
Therefore, in the time that I have seen Mr. Stuber, and my ability to review the information from other physicians, it is my opinion that his right knee degenerative changes were at the very least accelerated and aggravated by a limp that was documented by other physicians and is still noticeable today as a result of a painful left knee condition that the Board has previously accepted responsibility for.
[10] A decision denying the request was issued on June 5, 2002. In its decision, the VRAB concluded that Dr. Bering's medical opinion was not new evidence that would bring the Board to a different conclusion. At page 3 of its decision the panel stated:
The Board has considered Dr. Bering's opinion and finds that it is not new evidence which would bring this Board to a different conclusion as it is not supported by the factual evidence on the file. The evidence demonstrates that the Veteran's limp was noted in 1998, that, in fact he walked normally in 1997. Therefore, there is no history of a long-standing abnormal gait. Furthermore, the claim before the Board is that of a torn medial meniscus which Dr. Bering concedes is a result of an event, such as stepping abnormally, falling etc. There is no evidence of such an event in this case as reported by the Veteran.
[11] The VRAB's decision not to reconsider the applicant's case is now the subject of this application for judicial review.
Applicant's Position
[12] The applicant argues that the VRAB erred in concluding that the letter written by Dr. Bering did not constitute new evidence that justified a reconsideration of his claim. The applicant argues that the VRAB erred by not giving him the benefit of the doubt as it is required to do by sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the "VRAB Act"):
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.
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.
Respondents' Position
[13] The respondent contends that the VRAB correctly weighed all of the medical opinion of Dr. Bering and reasonably determined that it simply was not supported by the other evidence on the file. While sections 3 and 39 of the VRAB Act impose a duty upon the VRAB to examine any new evidence tendered by an applicant, those sections do not require the VRAB to accept all or any of the evidence.
STANDARD OF REVIEW
[14] The first step in reaching a determination on this issue is to establish the appropriate standard of review. Interpreting conflicting or inconclusive medical evidence and determining whether an injury was caused or aggravated by military service is at the heart of the VRAB's specialized jurisdiction: McTague v. Canada (A.G.) (1999), 177 F.T.R. 5 at paras. 46-47. As Cullen J. explained in MacDonald v. Canada (A.G.) (1999), 164 F.T.R. 42 at para. 21, decisions of the VRAB should be accorded a high degree of deference and reviewed using the standard of patent unreasonableness:
On an application for judicial review, the Court may not substitute its decision for that made by the board or tribunal which is under review. In light of the legislative framework which confers exclusive jurisdiction on the Veterans Review and Appeal Board, as well as the privative clause which renders its decisions final and binding, the applicable standard of review is that of patent unreasonableness: Weare v. Canada (Attorney General), [1998] F.C.J. No. 1145, (T-347-97, 11 August 1998). Thus, the reviewing Court may interfere only in the event that the impugned decision was based on an error of law, or on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it: Hall v. Canada (Attorney General), [1998] F.C.J. No. 890, (T-2267-97, 22 June 1998). [Emphasis added.]
ANALYSIS
[15] I have concluded that the decision under review is based on erroneous findings of fact made in a perverse manner without regard to the material before it. The decision states at page 3:
The evidence demonstrates that the Veteran's limp was noted in 1998, that, in fact, he walked normally in 1997. Therefore, there is no history of a long-standing abnormal gait.
This is patently wrong. The evidence is that the applicant walked with a limp at the end of his military service in 1952 until his two operations on the knees in 1996.
[16] I have also concluded that the decision under review is perverse with respect to the medical evidence. The medical report of Dr. Grympa dated March 23, 1999 states at page 2:
In summary, I feel that John's problem to his left knee has definitely created an increased load to his right knee. I am not sure that I can give you an exact percentage of the cause here but suffice it to say that there definitely is a relationship between the two knees. The fact that his left knee has significant damage and injury to it. There definitely is a possibility that it can cause trouble to his other knee.
[17] Dr. Bering reported on November 24, 1999 that the pain in the left knee (caused by the military service) causes a limp and puts increased stress on the right knee. He concludes:
This gives more support to the probability that the right knee was at the very least aggravated if not induced by increasing limp and pain in the left knee.
When the Board did not accept this as definite enough evidence, Dr. Bering wrote another report dated March 8, 2000 which stated that Mr. Stuber walked with a particularly noticeable limp from the time of his military service until 1996 - 1997, when he underwent arthoscopic surgery "Since then, he still walks with an occasional limp. This is not as significant as it was prior to his surgery but is still present." Dr. Bering continues:
On examination in the office today (March 8, 2000), Mr. Stuber has equal leg lengths. He does however walk with a mild antalgic limp, (i.e. painful gait) with the left leg.
And at page 3 of the report Dr. Bering writes:
[...] it is my opinion that an altered gait pattern resulting from a significant or even a mild antalgic limp especially over a prolonged period of time will increase the stress placed on the joints of the opposite extremity and would contribute to an increased incidence of degenerative changes in the joints of the opposite extremity. In addition, if Mr. Stuber has significant limp in the time frame we are speaking of 1996 - 1997, and as a result of this, planted his right leg abnormally to avoid a painful left knee, this is a definite mechanism of injury for meniscal tear [...]
[...] it is my opinion that his right knee degenerative changes were at the very least accelerated and aggravated by a limp that was documented by other physicians and is still noticeable today as a result of a painful left knee condition that the Board has previously accepted responsibility for.
[18] Based on this evidence I am not only satisfied that the Board's decision was patently unreasonable when it concluded that there is no history of a long-standing abnormal gait, but that the evidence makes clear that the injury to the left knee precipitated the degenerative condition of the right knee which led to the torn medial meniscus. While the medical evidence cannot attest to this with one hundred percent certainty, the preponderance of the evidence, on the balance of the probabilities, is that there is a nexus from the injury to the left knee and the injury to the right knee.
[19] The Court also finds that the VRAB erred in law by failing to provide the applicant with the benefit of the doubt and failed to draw from all of the circumstances of the case every reasonable inference in favour of the applicant as required under sections 3 and 39 of the VRAB Act.
[20] For these reasons, the Court finds that the VRAB made critical findings of fact that were patently unreasonable and erred in law in failing to properly apply sections 3 and 39 of the VRAB Act to the applicant.
ORDER
THIS COURT HEREBY ORDERS THAT:
This application for judicial review is allowed with costs to the applicant, and the matter referred back to the VRAB to reconsider its prior decision not to award the applicant an additional pension for the injury to his right knee which the medical evidence suggests was directly related to the applicant's left knee injury attributable to his military service.
"Michael A. Kelen" ________________________________
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1097-02
STYLE OF CAUSE: JOHN STUBER v. ATTORNEY GENERAL OF
CANADA AND VETERANS REVIEW AND APPEAL
BOARD OF CANADA
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: June 12, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
APPEARANCES:
Mr. Ron Hill FOR APPLICANT
Mr. Robert Drummond FOR RESPONDENT
SOLICITORS OF RECORD:
Hill & Hill FOR APPLICANT
Medicine Hat, Alberta
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20030620
Docket: T-1097-02
BETWEEN:
JOHN STUBER
Applicant
- and -
ATTORNEY GENERAL OF CANADA AND VETERANS REVIEW AND APPEAL BOARD OF CANADA
Respondents
REASONS FOR ORDER
AND ORDER