Date: 20020604
Docket: T-451-01
Neutral Citation: 2002 FCT 634
BETWEEN:
EIKE TEUBERT
Applicant
- and -
ATTORNEY GENERAL OF CANADA and
DEPARTMENT OF VETERANS AFFAIRS
Respondents
REASONS FOR ORDER
HANSEN J.
[1] On September 18, 2000, Teitelbaum J. set aside the June 16, 1999 decision of the Veteran's Review and Appeal Board Canada (the "VRAB" or "Board") wherein the VRAB concluded that the applicant's "spinal stenosis operated" neither arose out of, nor was directly connected with, service in the Royal Canadian Mounted Police (the "RCMP"). On December 19, 2000, a differently constituted Board reconsidered the matter and reached the same conclusion. The applicant seeks judicial review of this decision.
Background
[2] At the hearing of this judicial review, the applicant stated that he relied on the detailed statement of facts found in Teitelbaum J.'s reasons in the earlier judicial review. The following is a summary of those facts.
[3] The applicant was a member of the RCMP from December 1966 until his medical discharge on July 16, 1998.
[4] As part of his employment training, the applicant participated in an intense weight-training program that included lifting weights equal to his own body weight for up to an hour. He was subsequently involved in two work-related motor-vehicle accidents. The first occurred in 1971 while the applicant was on radar-duty. His car was struck from behind by a vehicle travelling approximately 100 km/hour. An x-ray taken three days later did not confirm a visible injury. The second accident occurred in 1972 when the applicant's police cruiser was struck from behind by a half-ton truck.
[5] In December 1977, the applicant reported to his family physician, Dr. Boake, that he was experiencing stiffness and tenderness in his mid-back region. Dr. Boake conducted an examination and noted restricted movement and a moderate amount of muscle spasm. Over the next 25 years, the applicant experienced difficulty with his back.
[6] The applicant underwent surgery in March 1995. An L 4-5 decompressive laminectomy for lumbar spinal stenosis produced good results. The applicant was able to return to active duty but still continued to experience chronic midline back pain. A report of Dr. Zwimper, a neurosurgeon, dated May 15, 1996, states that prolonged standing and wearing a holster weighing up to 20 lbs. may have contributed to this pain.
[7] In December 1996, the applicant was noted to have significant exacerbation of his back condition resulting from an incident involving forcible transfer of a prisoner from one cell block to another. A few days later, the applicant experienced further back pain during another scuffle with a prisoner. A subsequent CT scan showed that "a facet joint had broken off and two discs were herniated". At this point, the applicant required a regular dose of narcotic analgesics to ease the pain.
[8] Dr. Robson completed an RCMP Occupational Fitness Assessment of the applicant on April 2, 1997. The report indicates that the applicant's condition was "likely aggravated by many work-related activities such as sitting, giving chase and jumping".
[9] On November 13, 1997 the applicant underwent a posterior L 3-4-5 fusion with depressive laminectomy with placement of spinal rods and bone graft.
[10] In a report dated May 15, 1999, Dr. Robson states that the applicant suffers from degenerative disc disease. He notes in particular an incident in 1994 in which the applicant "brought his left foot down heavily on the ground, during a tussle with a prisoner, and this must have delivered enough impact up his leg to either cause a disc protrusion or aggravate a disc which was not giving him must symptomatology till then". Dr. Robson also noted that this incident "aggravated the instability associated with his preexisting spondylolisthesis, such that his spinal cord was being compressed".
[11] Prior to his discharge, the applicant applied to the Department of Veterans Affairs for a disability pension. The applicant alleged that his spinal stenosis was service-related. The condition was ruled to be "not pensionable" under subsection 32(1) of the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11, s.1 in accordance with the Pension Act, R.S.C. 1985, c. P-6.
Legislative Framework
[12] Subsection 21(2) of the Pension Act.
(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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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) 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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[13] Section 32 of the R.C.M.P. Superannuation Act.
(a) any person to whom Part VI of the former Act applied at any time before April 1, 1960 who, either before or after that time, has suffered a disability or has died, or (b) any person who served in the Force at any time after March 31, 1960 as a contributor under Part I of this Act and who has suffered a disability, either before or after that time, or has died, in any case where the injury or disease or aggravation thereof resulting in the disability or death in respect of which the application for the award is made arose out of, or was directly connected with, the person's service in the Force. |
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32. Sous réserve des autres dispositions de la présente partie, une compensation conforme à la Loi sur les pensions doit être accordée, chaque fois que la blessure ou la maladie -- ou son aggravation -- ayant causé l'invalidité ou le décès sur lequel porte la demande de compensation était consécutive ou se rattachait directement au service de l'intéressé dans la Gendarmerie, à toute personne, ou à l'égard de celle-ci_: a) visée à la partie VI de l'ancienne loi à tout moment avant le 1er avril 1960, qui, avant ou après cette date, a subi une invalidité ou est décédée; b) ayant servi dans la Gendarmerie à tout moment après le 31 mars 1960 comme contributeur selon la partie I de la présente loi, et qui a subi une invalidité avant ou après cette date, ou est décédée. |
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[14] Section 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18.
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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 (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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The Decision of the First Board
[15] The VRAB found that the applicant did not present evidence establishing a link between his condition and the performance of his duties in the RCMP. The Board relied on the absence of documentation between 1972 and 1987 that would support a conclusion that the condition of spinal stenosis was the result of service-related injury. Also, the Board noted that they were not presented with a Report on Injury that would conclusively link the condition with service. The Board stated that, notwithstanding Dr. Robson's "contention" that the condition was related to the performance of the applicant's duties, they had "not been presented with any evidence of a duty relationship to the claimed condition".
The Decision of Teitelbaum J.
[16] Teitelbaum J. noted that the Board recognized the injuries sustained in the two motor vehicle accidents but found there was an absence of documents from 1972 to 1987 to establish that service related injuries were the causative factor or a contributing factor to the spinal stenosis. He questioned: "whether the Board interpreted the evidence in the spirit required by section 39 of the Veterans Review and Appeal Board Act".
[17] In his extensive review of the evidence, Teitelbaum J. concluded from Dr. Robson's May 15, 1999 letter that the applicant suffered injuries while performing his duties as an RCMP officer and that the applicant may have aggravated his back from time-to-time while he was not on duty. As well, the off-duty incidents that may have aggravated the applicant's back were "not of sufficient magnitude as to be the cause of the applicant's problems".
[18] Therefore, Teitelbaum J. held that it was not open to the Board to dismiss Dr. Robson's medical opinion in these circumstances. The VRAB did not state that Dr. Robson's opinion was not credible. Thus, in light of the RCMP Fitness Assessment of April 9, 1997 conducted by Dr. Robson and the two Tax Treatment Memos in which the RCMP accepts that the applicant's disability is service-related, Teitelbaum J. held that the VRAB had misapplied section 39 of the Veterans Review and Appeal Board Act.
[19] Accordingly, Teitelbaum J. allowed the judicial review and directed that the matter be "returned for a new hearing before a differently constituted tribunal".
The Decision of the Second Board
[20] The applicant was afforded a new hearing before the Board on December 19, 2000. The Board again concluded that his condition neither arose out of, nor was directly connected to his service in the RCMP. The Board stated that "the medical opinion of Dr. Robson, the family physician, is not sufficiently credible for the award of pension in this instance".
[21] The Board's reasons for finding that Dr. Robson's medical opinion was not "sufficiently credible" were that his report lacked a credible history and an analysis of the cause or causes of the claimed condition. The Board states that it is not permitted simply to adopt a physician's finding as its own conclusion.
[22] Also, with respect to the RCMP Tax Status Memos, the Board states that the RCMP follows an unknown assessment procedure and that the Board is not permitted to simply adopt the position of the RCMP.
Issues
[23] The applicant submits it was patently unreasonable for the Board to deny the claim of the applicant given the decision of Teitelbaum J. and sections 3 and 39 of the Veterans Review and Appeal Board Act. Specifically, the applicant raises the following two issues:
1. Did the Board err by rejecting the medical opinion of Dr. Robson?
2. Did the Board err by disregarding the Tax Status Memos?
Analysis
1. Did the Board err by rejecting the medical opinion of Dr. Robson?
[24] The applicant submits that the Board erred by rejecting Dr. Robson's medical opinion on the basis that it was not sufficiently credible.
[25] The respondent's position is that the Board clearly set out its reasons for rejecting Dr. Robson's opinion and is entitled to find a medical opinion not to be credible if it fails to provide an accurate and complete history or an analysis of the cause or causes of the condition. The respondent submits that the Board's decision in this regard is rational.
[26] Further, the respondent submits that the Board had evidence before it of "contradictory non-work-related injuries". The Board notes that the file contains references to back strain resulting from towelling off, painting and moving wood.
[27] The evidence of "contradictory" non-work related incidents was addressed specifically by Dr. Robson in his report which the Board failed to recognize. Dr. Robson states:
- There is no doubt that Mr. Teubert may have aggravated his back from time to time while off duty, but nowhere in my notes do I see any mention of any injury of sufficient magnitude to cause the problems noted above.
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In summary, we all have some minor back complaints, but this man suffered disabling injuries which led to two separate spinal surgeries requiring three procedures, and the only injuries reported to me during this entire time of this severity, were those occurring on the job...
[28] In my view, the Board was not faced with contradictory medical evidence in this case. There was no medical evidence before the Board indicating that the applicant's disability was in fact caused by an injury that occurred while he was off-duty. Nor was there any medical evidence indicating that his disability is likely not service-related. Accordingly, the only issue regarding Dr. Robson's medical opinion is whether it was open to the Board to find that it was not credible.
[29] The Board observed that "a medical opinion may not be found to be credible if it does not include and accurate and complete history" and "[i]t must also include an explanation of how the relevant condition developed from all of the causative factors". The Board rejected Dr. Robson's medical opinion because it did not meet these two criteria. The Board did not elaborate further on the perceived deficiencies in the medical opinion.
[30] In my opinion, the Board's criticism of Dr. Robson's report does not withstand scrutiny. In formulating his opinion, Dr. Robson referred to the many medical reports submitted over the years for the "relevant facts and timeline". I am not aware of any authority for the proposition that a medical opinion may not be regarded as credible where the report states it is based on the information contained in the file but does not contain a recital of that history. If it is demonstrated that the file history is inaccurate and the opinion is based on the file information, the Board would be entitled to discount the opinion. However, the Board did not identify any inaccuracies in the file information.
[31] With respect to a causal link between a work-related injury and the applicant's condition, in an Occupational Fitness Assessment dated April 1997, Dr. Robson states that the problem is "likely aggravated by many work-related activities such as sitting, giving chase, jumping". In May 1998, Dr. Robson wrote that the applicant suffers from "spinal stenosis resulting from cumulative injury to the spine... dates back to 1971 when he had a rear-end MVA, had another "whiplash" in 1972, lifting injury in 1975 etc.". Finally, in the May 15, 1999 report, Dr. Robson stated that the only incidents reported to him of significant severity so as to cause or aggravate the back condition, were those occurring on the job.
[32] Therefore, I find that Dr. Robson's opinion did contain an analysis of the causative link between the applicant's service with the RCMP and his injury. For these reasons, the Board erred in rejecting the medical opinion of Dr. Robson.
2. Did the Board err by disregarding the "Tax Status Memos"?
[33] The applicant submits that Teitelbaum J. recognized the significance of the Tax Status Memos, however, the evidentiary value of this documentation was ignored by the Board.
[34] The respondent submits that the decision of the Board to reject the RCMP Tax Status Memos was reasonable. The respondent states that the Board provided a valid reason for its rejection. The Board was not familiar with the assessment process by which the RCMP made its conclusions, and therefore, could not simply accept their conclusion as its own.
[35] In my opinion, the Board's finding that it would be abdicating its decision making power if it were to simply "adopt the position of the RCMP", is misguided. While the Board is correct that the Tax Status Memos cannot be accepted as determinative of the entitlement to a pension, nonetheless, the memos are evidence of a causal link between the duty-related accidents and the applicant's condition. Further, this documentation supports the uncontradicted evidence of Dr. Robson.
Conclusion
[36] In conclusion, I find that the VRAB erred in finding that the medical opinion of Dr. Robson was not "sufficiently credible". Dr. Robson's opinion established a causal link between the work-related injuries and the applicant's condition. There was no evidence before the Board contradicting this opinion. In fact, the Tax Status Memos lend support to the opinion. If, despite Dr. Robson's opinion, some doubt remained with respect to the cause of the applicant's condition, in the absence of any contradictory evidence, section 39 of the Veterans Review and Appeal Board Act requires that doubt be resolved in favour of the applicant. The applicant, in the present case, was not accorded the benefit of section 39.
[37] Accordingly, the application for judicial review is allowed and the matter is remitted for reconsideration by a differently constituted panel of the VRAB in accordance with these reasons.
"Dolores M. Hansen"
J.F.C.C.
Ottawa, Ontario
June 4, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-451-01
STYLE OF CAUSE: Eike Teubert v. Attorney General of Canada
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 17, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE HANSEN
DATED: June 4, 2002
APPEARANCES:
Michael D. KeyesFor the Applicant
Tracy KingFor the Respondent
SOLICITORS OF RECORD:
Sisson Warren Sinclair
Barristers and Solicitors
Red Deer, AlbertaFor the Applicant
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, OntarioFor the Respondent