Date: 20020517
Docket: T-870-01
Neutral Citation: 2002 FCT 575
Between:
STEPHEN KRIPPS
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD, J.:
[1] The applicant seeks judicial review of a decision under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, to review and set aside a decision of Mr. L. J. MacInnis of the Veterans Review and Appeal Board (the VRAB) dated April 27, 2001, finding that the claimed osteoarthritis right knee is not consequential upon the pensioned condition of bilateral pes planus (flat fleet) pursuant to subsection 21(5) of the Pension Act, R.S.C. 1985, c. P-6, as amended (the Act).
[2] In dismissing the applicant's application, the VRAB observed:
In arriving at this decision, the Board has thoroughly reviewed all of the documentation including the new exhibits and has listened carefully to the presentation by the Advocate on the Veteran's behalf.
The Board notes from Exhibit VRAB-1 that the Advocate requested the following from the Veteran's physician:
a) that he has read your unfavourable decision
b) that he disagrees with it
c) that he still feels your claimed Osteoarthritis Right Knee is caused or aggravated by your pensioned Bilateral Pes Planus and
d) briefly his reasons for doing so.
In reviewing the response from Dr. Boris Gimbarzevsky found in Exhibit VRAB-2 and the report from Dr. H. E. Hawk, the Board found a response as to (a), (b), and (c) above; however, it has not been provided with the reasons or basis for the opinion found in Exhibit VRAB-2. The Board also noted that the doctor did not address the comments contained in the Entitlement Review Decision regarding the Departmental Medical Guidelines which read as follows:
Pes planus, pes cavus or hallux valgus are generally not considered to alter gait mechanics to a sufficient degree to conduce to degenerative changes, either in the lower limbs or in the lumbro-sacral spine.
The Board did not find sufficient medical evidence upon which to base an award for pension entitlement for the claimed osteoarthritis right knee condition. The Board finds the claimed condition is not consequential upon the pensioned condition of bilateral pes planus.
The Board affirms the Entitlement Review Decision of 5 September 2000.
[3] The applicant's disability pension for bilateral pes planus was awarded under paragraph 21(1)(a) of the Act:
21. (1) In respect of service rendered during World War I, service rendered during World War II other than in the non-permanent active militia or the reserve army, service as a member of the special force, service in the Korean war, and service in a special duty area as a member of the Canadian Forces,
(a) where a member of the forces suffers disability resulting from an injury or disease or an aggravation thereof that was attributable to or was incurred during 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;
21. (1) Pour le service accompli pendant la Première Guerre mondiale ou la Seconde Guerre mondiale, sauf dans la milice active non permanente ou dans l'armée de réserve, le service accompli pendant la guerre de Corée, le service accompli à titre de membre du contingent spécial et le service spécial :
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 - survenue au cours du service militaire ou attribuable à celui-ci;
[4] The applicant applied for a disability pension for osteoarthritis consequential to his pensioned condition of pes planus under subsection 21(5) of the Act, which reads:
21. (5) In addition to any pension awarded under subsection (1) or (2), a member of the forces who
(a) is eligible for a pension under paragraph (1)(a) or (2)(a) or this subsection in respect of an injury or disease or an aggravation thereof, or has suffered an injury or disease or an aggravation thereof that would be pensionable under that provision if it had resulted in a disability, and
(b) is suffering an additional disability that is in whole or in part a consequence of the injury or disease or the aggravation referred to in paragraph (a)
shall, on application, be awarded a pension in accordance with the rates for basic and additional pensions set out in Schedule I in respect of that part of the additional disability that is a consequence of that injury or disease or aggravation thereof.
21. (5) En plus de toute pension accordée au titre des paragraphes (1) ou (2), une pension est accordée conformément aux taux indiqués à l'annexe I pour les pensions de base ou supplémentaires, sur demande, à un membre des forces, relativement au degré d'invalidité supplémentaire qui résulte de son état, dans le cas où :
a) d'une part, il est admissible à une pension au titre des alinéas (1)a) ou (2)a) ou du présent paragraphe, ou a subi une blessure ou une maladie - ou une aggravation de celle-ci - qui aurait donné droit à une pension à ce titre si elle avait entraîné une invalidité;
b) d'autre part, il est frappé d'une invalidité supplémentaire résultant, en tout ou en partie, de la blessure, maladie ou aggravation qui donne ou aurait donné droit à la pension.
[5] Section 35 of the Act empowers the Minister to prepare a table of disabilities for the purpose of assisting persons assessing pensions for disability:
35. (1) Subject to section 21, the amount of pensions for disabilities shall, except as provided in subsection (3), be determined in accordance with the assessment of the extent of the disability resulting from injury or disease or the aggravation thereof, as the case may be, of the applicant or pensioner.
(2) The assessment of the extent of a disability shall be based on the instructions and a table of disabilities to be made by the Minister for the guidance of persons making those assessments.
(2.01) The instructions and table of disabilities referred to in subsection (2) are exempt from the application of sections 3, 5 and 11 of the Statutory Instruments Act.
35. (1) Sous réserve de l'article 21, le montant des pensions pour invalidité est, sous réserve du paragraphe (3), calculé en fonction de l'estimation du degré d'invalidité résultant de la blessure ou de la maladie ou de leur aggravation, selon le cas, du demandeur ou du pensionné.
(2) Les estimations du degré d'invalidité sont basées sur les instructions du ministre et sur une table des invalidités qu'il établit pour aider quiconque les effectue.
(2.01) Les articles 3, 5 et 11 de la Loi sur les textes réglementaires ne s'appliquent pas aux instructions et à la table des invalidités visées au paragraphe (2).
[6] Sections 3 and 39 of the Veterans Review and Appeal Board Act, S.C. 1995, c. 18, govern how the VRAB should evaluate the evidence before it when making a determination:
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.
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.
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.
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.
[7] The issue central to the case at bar concerns whether the VRAB erred in its consideration of the evidence in concluding that the applicant's osteoarthritis right knee is not consequential upon the pensioned condition of bilateral pes planus. Sections 3 and 39 of the Veterans Review and Appeal Board Act govern how the VRAB should evaluate the evidence before it when making a determination.
[8] It is therefore clear that the VRAB has a duty to examine any new and credible evidence of the applicant in accordance with the latter provisions. However, recent jurisprudence indicates that the VRAB may reject evidence submitted by the applicant if there exists contradictory evidence, or the Board provides reasons for its rejection of the evidence bearing on the credibility and reasonableness of the evidence being rejected (see, for example, King v. Canada (Veterans Review and Appeal Board) (May 29, 2001), T-680-00, [2001] F.C.J. No. 850 (T.D.)(QL) and Wood v Canada (Attorney General) (January 19, 2001), T-1978-99, [2001] F.C.J. No. 52 (T.D.)(QL)).
[9] The applicant argues that the VRAB erred by relying on the Departmental Medical Guidelines. In Gavin v. Canada (Attorney General) (May 7, 1999), T-1875-95, [1999] F.C.J. No. 676 (T.D.)(QL), the issue was whether the Board fettered its discretion by relying on the Canadian Pension Commission Guidelines as opposed to relying on medical opinion. My colleague Justice McKeown found:
In determining whether the Board committed a jurisdictional error by relying on the Guidelines as opposed to relying on the medical opinion of Dr. Weir, I must bear in mind subsections 35(1) and (2) of the Pension Act which read as follows:
35. (1) Subject to section 21, the amount of pensions for disabilities shall, except as provided in subsection (3), be determined in accordance with the assessment of the extent of the disability resulting from injury or disease or the aggravation thereof, as the case may be, of the applicant or pensioner.
35. (2) The assessment of the extent of a disability shall be based on the instructions and a table of disabilities to be made by the Minister for the guidance of physicians and surgeons making medical examinations for pension purposes.
Thus the Guidelines are specifically authorized by legislation. This distinguishes the case before me from Re Dale Corporation and Rent Review Commission et al. [See Note 4 below], where the guidelines relied on by the decision-maker were not authorized. The Board, in following the Guidelines on when a pension becomes payable, did not fetter its discretion and did not commit a reviewable error.
Note 4: 149 D.L.R. (3d) 113 (N.S.S.C., Appeal Div.).
[. . .]
In my view this case is similar to the one before Justice Muldoon in Bleakney v. Canada (Minister of Veterans Affairs) [See Note 5 below], where he stated at paragraph 7,
[t]he Veterans Appeal Board's statement that it had "carefully weighed the evidence in light of the medical guidelines provided to assist in making a determination" is no indication of unlawfully or unduly fettering its discretion. Subsection 35(2) of the Pension Act specifically refers to "the instructions and a table of disabilities ... for the guidance of physicians and surgeons" as a basis for estimating the extent of a disability. That is a statutory direction which lawfully directs the boards how to go about their work.
Note 5: [1994] F.C.J. No. 201 (Quicklaw).
[10] The information provided in the Departmental Medical Guidelines applicable to the case at bar and included in the VRAB's reasons is the following:
Pes planus, pes cavus or hallux valgus are generally not considered to alter gait mechanics to a sufficient degree to conduce to degenerative changes, either in the lower limbs or in the lumbro-sacral spine.
[11] Based on the fact that the Board may weigh all the evidence in light of the Medical Guidelines, I do not feel that there is any indication that the VRAB unlawfully or unduly fettered its discretion in this case. It is clear that the VRAB weighed the evidence of the applicant in light of the relevant Medical Guidelines and simply found that there was insufficient evidence to support a consequential pension for osteoarthritis pursuant to subsection 21(5) of the Act.
[12] After having reviewed the decision as well as the evidence on record, I feel that the VRAB acted within its jurisdiction by considering all the evidence before it and reasonably concluded that there was no sufficient proof that the applicant's osteoarthritis right knee resulted from bilateral pes planus.
[13] Moreover, the VRAB states in its reasons that it had reviewed the response from Dr. Boris Gimbarzevsky. However, the applicant had been referred to Dr. H. E. Hawk in order to render an opinion on the matter of aggravating factors of osteoarthritis. After having examined this report, the VRAB found that the evidence was not convincing and therefore not credible for two reasons:
1) Dr. H. E. Hawk failed to provide the reasons and basis for the opinion found in the response from Dr. Gimbarzevsky (exhibit VRAB-2);
2) Dr. H. E. Hawk did not address the comments contained in the Entitlement Review Decision regarding the Departmental Medical Guidelines.
[14] As opposed to the situation in Wood, supra, it is my opinion that prior to making its decision, the VRAB weighed and reviewed all the evidence at its disposal, both favourable and unfavourable to the applicant. At pages 8 and 9 of the Tribunal Record, the Pension Advocate had, in a letter to the applicant, requested specific information from the applicant's physician in order to prepare for the appeal to the VRAB. In particular, it was requested that the doctor provide reasons to support the conclusion of Dr. Boris Gimbarzevsky that the claimed osteoarthritis right knee is caused or aggravated by the pensioned bilateral pes planus. However, sufficient reasons had not been provided and therefore the contradictory evidence contained in the Departmental Medical Guidelines could not be refuted.
[15] In summary, it is my view that it cannot be said that the VRAB came to an unreasonable finding or that it failed to weigh medical evidence in a proper fashion to the claims by the applicant that his osteoarthritis right knee is consequential upon the pensioned condition of bilateral pes planus. Consequently, I regretfully dismiss this application for judicial review, with costs.
JUDGE
OTTAWA, ONTARIO
May 17, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-870-01
STYLE OF CAUSE: Stephen Kripps v. Attorney General of Canada
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 30, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 17, 2002
APPEARANCES:
Mr. Stephen Kripps ON HIS OWN BEHALF
Mr. Ward Bansley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Stephen Kripps ON HIS OWN BEHALF
Vancouver, British Columbia
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario