OTTAWA, Ontario, February 13th, 2006
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Veterans Review and Appeal Board (the "Board") dated November 16, 2004, which found that the applicant was not entitled to an increase in his disability pension benefits for rheumatoid arthritis aggravated by his service in the Canadian Armed Forces.
Background Facts
[2] The applicant was a member of the Canadian Armed Forces from 1965 to 1986. He was employed as a physical education and recreation instructor (known as a "PERI") which involved physically demanding, high impact and repetitive work.
[3] In the early 1980s, when he was in his mid-thirties, the applicant began to experience significant joint pain. Medical investigations revealed that he had a positive rheumatoid factor, though there was some uncertainty as to his exact diagnosis. In 1983, the applicant's physicians expressed concern about his ability to continue the rigorous PERI duties. Despite this, the applicant's medical category was not lowered and he was not restricted to light duties.
[4] In 1985, the applicant's medical category was lowered. He was discharged from the Canadian Forces on September 27, 1986.
[5] In 1990, the applicant applied to the Canadian Pension Commission for a disability pension. He based his claim on the fact that he had rheumatoid arthritis, a condition which was diagnosed during his service, and which was allegedly aggravated by his PERI duties. The applicant received negative pension decisions in 1991 and 2003 because the arthritis was not related to his work.
[6] On May 18, 2004, an Entitlement Review Hearing was conducted before the Board at the request of the applicant. He provided letters from five doctors to support his position that his service activities had aggravated his condition. Further, the applicant argued that the Canadian Forces had not properly responded to his condition, which resulted in further aggravation. The Board determined that the strenuous physical activity associated with the applicant's duties as a PERI may have caused a minimal aggravation to his rheumatoid arthritis. He was awarded a 1/5th pension entitlement, retroactive to May 18, 2001.
[7] The applicant was not satisfied with this award, and filed an appeal with the Board. He provided another medical report in support of his appeal, a letter from Dr. J. O'Donnell dated September 2, 2004. The Board considered this new information, together with the evidence that had been before the Board on May 18, 2004. On November 26, 2004, the Board rejected the appeal. It was determined that there was no evidence of medical negligence in the applicant's treatment and that the new evidence provided by the applicant did not differ from medical opinions already on file and previously considered.
Issues
[8] There are three issues in this application:
1. did the Board err in failing to find that there was no evidence of medical mismanagement of the applicant's condition?;
2. did the Board disregard evidence or fail to provide the benefit of the doubt to the applicant in assessing the new evidence of Dr. O'Donnell?; and
3. did the Board err in failing to exercise its discretion to make the pension award retroactive to five years prior to the date of the decision?
Relevant Legislation
[9] The applicant relies upon the Pension Act, R.S.C. 1985, c. P-6 and the Veterans Review and Appeal Board Act, S.C. 1995, c. 18 (the "VRAB Act") in support of his application.
1. Pension Act, R.S.C. 1985, c. P-6
|
|
|
| Date from which disability pension payable 39. (1) A pension awarded for disability shall be made payable from the later of (a) the day on which application therefore was first made, and (b) a day three years prior to the day on which the pension was awarded to the pensioner. 39(2) Additional award (2) Notwithstanding subsection (1), where a pension is awarded for a disability and the Minister or, in the case of a review or an appeal under the Veterans Review and Appeal Board Act, the Veterans Review and Appeal Board is of the opinion that the pension should be awarded from a day earlier than the day prescribed by subsection (1) by reason of delays in securing service or other records or other administrative difficulties beyond the control of the applicant, the Minister or Veterans Review and Appeal Board may make an additional award to the pensioner in an amount not exceeding an amount equal to two years pension. |
Date à partir de laquelle est payable une pension d'invalidité 39. (1) Le paiement d'une pension accordée pour invalidité prend effet à partir de celle des dates suivantes qui est postérieure à l'autre : a) la date à laquelle une demande à cette fin a été présentée en premier lieu; b) une date précédant de trois ans la date à laquelle la pension a été accordée au pensionné. 39(2) Compensation supplémentaire (2) Malgré le paragraphe (1), lorsqu'il est d'avis que, en raison soit de retards dans l'obtention des dossiers militaires ou autres, soit d'autres difficultés administratives indépendantes de la volonté du demandeur, la pension devrait être accordée à partir d'une date antérieure, le ministre ou le Tribunal, dans le cadre d'une demande de révision ou d'un appel prévus par la Loi sur le Tribunal des anciens combattants (révision et appel), peut accorder au pensionné une compensation supplémentaire dont le montant ne dépasse pas celui de deux années de pension. |
2. Veterans Review and Appeal Board Act, S.C. 1995, c.18
|
|
|
| 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. |
Principegénéral 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. |
|
|
|
|
|
|
| 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. |
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. |
Standard of Review
[10] In determining the correct standard of review of Board decisions, a pragmatic and functional analysis must be performed. Pursuant to the Supreme Court of Canada's decision in Dr. Q v. College of Physicians of British Columbia, [2003] 1 S.C.R. 226, four factors must be considered in this analysis: the presence of a privative clause or statutory right of appeal, the expertise of the tribunal relative to the reviewing court, the purpose of the legislation and the nature of the question.
[11] For the first factor, the presence of section 31 of the VRAB Act, which deems decisions made by the Board to be final and binding, means that the Board's decisions attract curial deference.
[12] For the second factor, the Board has a greater relative expertise in deciding pension claims than does the Court. As a result, deference is owed to the Board's determination of factual questions.
[13] The third factor is the purpose of the legislation; in this case, the applicable legislation is the VRAB Act and the Pension Act. The purpose of the Pension Act, as identified in the preamble, is to "provide pensions and other benefits to the members of the forces". A liberal interpretation of the VRAB Act is mandated by section 3, with the aim of recognizing the Crown's obligation to members of the forces and their dependents. These purposes favour deference to the Board's decisions.
[14] With respect to the nature of the question, the Court will treat the Board's factual findings with more deference than its interpretation of legal principles. Questions of fact are reviewed on the standard of patent unreasonableness, while questions of mixed fact and law attract a standard of reasonableness simpliciter.
[15] In the instant case, the first two issues involve questions of fact, which are reviewable on a standard of patent unreasonableness. The remaining issue is questions of mixed fact and law, which attracts a standard of reasonableness simpliciter.
Analysis
Issue No. 1: Did the Board err in failing to find that there was no evidence of medical mismanagement of the Applicant's condition?
[16] The applicant submits that he was not given a medical re-classification for two years following a medical recommendation to reduce his physical activity, and that this amounts to uncontradicted evidence that his medical care was mismanaged by the Canadian Forces.
[17] The evidence before the Court establishes that the applicant received medical attention from the Armed Forces as soon as his arthritis pain first arose at CFB Penfold, Alberta, and that he received constant medical attention thereafter. The 1983 medical reports and other evidence show that the applicant was assigned "light duties" at the Canadian Forces Base. The applicant himself wrote on April 17, 2003, in connection with this pension claim, that he was placed on "light duty" -- testing personnel for physical fitness levels and working in the sports store. A medical report dated March 5, 1985 states that the applicant has received medical therapy over the past years but continues to have increasing difficulty performing his duties, and that "his category was not originally changed because of the applicant pleading for there to be no change".
[18] Accordingly, the Court concludes that the Board had ample evidence upon which to conclude that there was no evidence of medical mismanagement or negligent medical treatment by the military authorities in the applicant's care or job classification, and this finding of fact is not patently unreasonable.
Issue No. 2: Did the Board disregard evidence of Dr. O'Donnell or fail to provide the benefit of the doubt to the Applicant in assessing evidence?
[19] The applicant submitted that Board failed to consider the new evidence of Dr. O'Donnell in his report dated September 2, 2004. Dr. O'Donnell wrote:
... I am of the opinion that Mr. Skouras's rheumatoid arthritis would indeed be affected by his terms of service and by his job as a PERI to a degree more than mild. I would in my opinion term the likelihood of exacerbation of this condition to be at least moderate. (sic)
In summary then, I feel an application of the term moderate to the term exacerbation of Mr. Skouras's condition caused by military service to be most apropos.
On the applicant's file there are several medical reports stating that the applicant's job as a PERI did aggravate his rheumatoid arthritis. The Board considered this evidence together with the medical evidence that the cause of rheumatoid arthritis is unknown, and that moderate exercise is one of the treatments for the condition. The Board did give the applicant the benefit of the doubt as required by subsection 39 of the VRAB Act, and accepted that his military service may have aggravated his medical condition and awarded him a 1/5th pension for that part of his arthritis which may have been aggravated as a result of his service with the military.
[20] The new medical report from Dr. O'Donnell dated September 2, 2004 did not change or add to the medical information on the file. Dr. O'Donnell simply repeated that the applicant's rheumatoid arthritis was likely exacerbated by his job as a PERI and he characterized the likelihood of the exacerbation as "at least moderate". The Board has already accepted that his military service aggravated his medical condition so that Dr. O'Donnell's characterization of the likelihood of exacerbation as moderate does not add anything new to the information before the Board.
[21] Counsel for the applicant submits that Dr. O'Donnell's report should be read to mean that the applicant's military duties as a PERI would have caused a moderate, as opposed to a mild, aggravation of the applicant's rheumatoid arthritis. The Board found that this opinion is not different from the previous medical opinions already considered by the Board in arriving at its previous decision and that the Board has already provided the applicant with the benefit of the doubt in awarding a 1/5th pension entitlement for a medical condition whose etiology is unknown.
[22] In reviewing the evidence, the Court concludes that this finding was reasonably open to the Board on the evidence and is not a patently unreasonable finding of fact nor is it a failure to consider the new evidence from Dr. O'Donnell.
Issue No. 3: Did the Board err by failing to exercise its discretion to make the pension award retroactive to five years prior to the date of the decision?
[23] The applicant submits that the pension, which was awarded retroactively for three years, should have been rewarded retroactively for five years because subsection 39(2) of the Pension Act provides for the award of a retroactive pension to this date if the pension has been delayed by "administrative difficulties beyond the control of the applicant". When pressed to explain what these administrative difficulties were, the applicant submitted that the administrative difficulties were the decision of the Canada Pension Commission (as the Board was then called) dated February 28, 1991 which denied the applicant's pension application with respect to rheumatoid arthritis. In this case, the delay was caused by the applicant waiting until September 12, 2003 to request a review of the Canada Pension Commission's 1991 decision. This 11 year delay is not the fault of the Armed Forces and could not be characterized as "administrative difficulties beyond the control of the applicant".
[24] Given these circumstances, it was reasonable for the Board to conclude that the applicant was not entitled to an additional retroactive award of two years as provided in subsection 39(2) of the Pension Act.
Conclusion
[25] The Court concludes that the following findings of the Board are not patently unreasonable:
1. the Armed Forces did not mismanage the applicant's medical condition either with respect to providing medical care or with respect to adjusting the nature of the applicant's duties in accordance with his medical condition;
2. the medical report of Dr. O'Donnell dated September 2, 2004 is not different from the medical opinions already considered by the Board and the applicant was given the benefit of the doubt in assessing the medical evidence that his rheumatoid arthritis was aggravated by his service in the military; and,
3. the delay in the award of this pension was not caused by administrative difficulties beyond the control of the applicant, rather the delay was caused by the applicant's delay in seeking a reassessment of his pension entitlement.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review of the decision of the Veterans Review and Appeal Board dated November 16, 2004 is dismissed with no other order as to costs.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-736-05
STYLE OF CAUSE: JOSEPH ALEXANDER SKOURAS v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 8, 2006
APPEARANCES:
| Mr. James P. McReynolds
|
|
| Ms. Roslyn Mounsey
|
SOLICITORS OF RECORD:
| Solomon Rothbart Goodman, LLP Toronto, Ontario
|
|
| Mr. John H. Sims, Q.C. Deputy Attorney General of Canada |