Date: 20031030
Docket: T-609-02
Citation: 2003 FC 1263
BETWEEN:
GREGORY ALLAN MACDONALD
Applicant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
BACKGROUND
[1] Gregory Allan MacDonald, the applicant, seeks to set aside in this judicial review application the February 12th, 2002 decision of the Veterans Review and Appeal Board ("the tribunal") which confirmed on reconsideration a decision of the Entitlement Appeal Board denying under subsection 21(2) of the Pension Act his November of 1998 application for pension entitlement for the conditions of internal derangement to his right knee and varicose veins.
[2] The tribunal recognized Mr. MacDonald had an injury to the right knee in 1968 while playing football for RMC in Kingston, an activity which was organized and authorized by the military. As a result of this finding, there is no issue the applicant suffered a "disability" resulting from an injury within the meaning of subsection 21(2)(a) of the Pension Act.
[3] The tribunal characterized the issue before it as one related to causality and expressed its finding with respect to the right knee:
The issue in this case is whether an injury in 1968 to the right knee in service caused the minor or partial tear to the ACL [anterior cruciate ligament], which was identified in 1999 by arthroscopy. The Board has taken Dr. Wiltshire's opinion that the ACL tear, which he identified at the time of the arthroscopy, "was consistent with an injury that was incurred as long as 30 years ago". However, the Board would expect that if the partial ligament tear had occurred in 1968, there would have been complaints and or treatment, even if intermittent over the years. There is no record of treatment or complaints until 1998. Furthermore, the absence of even slight degenerative change or osteoarthritis to the right knee, as shown in the arthroscopy and the X-ray thirty years after a ligament tear, would seem to support a more recent injury to the ACL. The Board, in its research, has found that the ACL has a very limited blood supply and it usually does not heal once injured (Clinically Oriented Anatomy, Fourth Edition). Therefore, while the Board recognizes that Dr. Wiltshire is a specialist, there is a lack of explanation on how one would differentiate between a recent tear to a ligament compared to one that is significantly older, i.e. thirty years old. Furthermore, the Board notes the lack of degenerative changes to the right knee thirty years following the alleged injury. The Board will, therefore, deny pension entitlement under subsection 21(2) of the Pension Act. [certified record, page 5] [my emphasis]
[4] As to his condition related to varicose veins, the tribunal found:
In dealing with the Varicose Veins condition, the Board notes a handwritten note from Dr. St. Arnaud dated 20 May 1999, where he stated:
Varicose vein behind (R) knee. Could be associated to injury in Saskatoon 1969.
The Board has considered Dr. St. Arnaud's opinion; however in the absence of an explanation as to the relationship between the varicose veins and the Regular Force service, the Board will deny pension entitlement. [certified record page 5]
[5] The only medical evidence before the tribunal was submitted by the applicant. Dr. Wiltshire who performed surgery on Mr. MacDonald's knee in November of 1999 wrote two letters.
[6] The first letter is dated June 20th, 2000 and reads:
RE: Gregory MacDonald
The above named patient has had dysfunction of the right knee since November 1999. At that time arthroscopy confirmed the presence of a tear of the A.C.L. ligament right knee.
This tear is old and obviously caused by trauma to the right knee in the past. [certified record page 35] [emphasis mine]
[7] Dr. Wiltshire's second letter is dated January 11th, 2001 and reads:
RE: Gregory MacDonald
On June 20, 2000 I wrote a letter stating that Mr. MacDonald's injury could be properly described as follows: "This tear is old and obviously caused by trauma to the right knee in the past."
Mr. MacDonald has informed me that the Department of Veterans Affairs has refused to consider his right knee injury as eligible for consideration of an Entitlement in part because the fact that he was unable "to relate the torn ligament to a football injury, some 30 years previously".
Although I did not treat Mr. MacDonald until 1999 and have no personal knowledge of the injury he mentions, I can state unequivocally that the nature of the tear I observed while performing surgery on his right knee was consistent with an injury that was incurred as long as 30 years ago. [certified record, page 34] [emphasis mine]
[8] Dr. St. Arnaud's brief note is dated May 20th, 1999 and states:
Varicose vein behind R knee could be associated to injury in Saskatoon 1969. [certified record page 5] [emphasis mine]
[9] The tribunal, in its decision, looked at other medical information. It referred to an X-ray and Dr. St-Arnaud's medical examination of Mr. MacDonald's right knee on April 23, 1999, observing:
The only current medical information before the Board relating to the condition of the Applicant's right knee is an X-ray dated 10 December 1998, which revealed no bone or joint abnormality in the right knee and a medical examination report dated 23 April 1999 signed by Dr. St. Arnaud, who examined the right knee and stated:
- Mild effusion Rt knee
- instability Rt knee, grade 2, MCL
- full, painless active and passive ROM [certified record page 3)
[10] The tribunal then mentioned Dr. Wiltshire's Operation Report for an arthroscopy dated November 23, 1999, and commented:
The Board then directed its attention to the Operation Report for an arthroscopy dated 23 November 1999 performed by Dr. Wiltshire, where it is stated that the Applicant had pain to his right knee since the summer of 1999, which had begun while the Applicant was jogging, and the pain was aggravated while the Applicant played golf. The Applicant had complained that the right knee was still "a bit symptomatic".
Dr. Wiltshire's observations during the operation were as follows:
OPERATIVE FINDINGS: The menisci were intact and the articular cartilage surface of the medial, lateral and patella femoral compartments were normal. There was elongation or tear of some of the fibres of the anterior portion of the anterior cruciate ligament with some erythema in that area. No other pathology was noted in the knee.
In the Operative Procedure, Dr. Wiltshire stated in part:
An arthroscopy was performed through anteromedial and anterolateral portals.... The findings were as above. All structures were thoroughly probed and no other pathology located. The torn fibres of the anterior cord of the ACL were excised, but the vast majority of the ACL was intact and the ligament stability appeared quite solid. [certified record page 4]
[11] The Board went on to say this about Dr. St. Arnaud's examination:
The Board noted that the clinical finding of instability of the right knee, as stated by Dr. St. Arnaud, was not confirmed by the arthroscopy. Also of note is the fact that the articular cartilage surface of the medial, lateral and patella femoral compartments were normal and the elongation or tear of some of the fibres reflect a minor problem with the ACL as Dr. Wiltshire referred to the vast majority of the ACL was intact and "appeared quite solid". [certified record page 4] [emphasis mine]
RELEVANT LEGISLATIVE PROVISIONS
[12] Subsection 21(2)(a) of the Pension Act reads:
| (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, (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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(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_: 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] Sections 3, 18, 31, 38 and 39 of the Veterans Review and Appeal Board Act read as follows:
| 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.
18. The Board has full and exclusive jurisdiction to hear, determine and deal with all applications for review that may be made to the Board under the Pension Act, and all matters related to those applications.
31. A decision of the majority of members of an appeal panel is a decision of the Board and is final and binding.
38. (1) The Board may obtain independent medical advice for the purposes of any proceeding under this Act and may require an applicant or appellant to undergo any medical examination that the Board may direct. 38(2) Notification of intention (2) Before accepting as evidence any medical advice or report on an examination obtained pursuant to subsection (1), the Board shall notify the applicant or appellant of its intention to do so and give them an opportunity to present argument on the issue.
39 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. [emphasis mine] |
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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.
18. Le Tribunal a compétence exclusive pour réviser toute décision rendue en vertu de la Loi sur les pensions et statuer sur toute question liée à la demande de révision.
31. La décision de la majorité des membres du comité d'appel vaut décision du Tribunal; elle est définitive et exécutoire.
38. (1) Pour toute demande de révision ou tout appel interjeté devant lui, le Tribunal peut requérir l'avis d'un expert médical indépendant et soumettre le demandeur ou l'appelant à des examens médicaux spécifiques. 38(2) Avis d'intention (2) Avant de recevoir en preuve l'avis ou les rapports d'examens obtenus en vertu du paragraphe (1), il informe le demandeur ou l'appelant, selon le cas, de son intention et lui accorde la possibilité de faire valoir ses arguments. 39 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.
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ANALYSIS
(a) Standard of Review
[14] As I see it, the crux of the tribunal's decision rests on its evidentiary finding Mr. MacDonald did not lead sufficient evidence to establish that, in fact, the 1968 football injury he suffered while playing against the University of Saskatchewan Huskies in Saskatoon was the cause of the tear to the anterior cruciate ligament in his right knee and the cause of the presence of the varicose veins behind that right knee.
[15] Such a question being heavily fact-based would attract the highest degree of deference by the Court to the tribunal's decision in that this decision must be shown under paragraph 18.1(4)(d) of the Federal Court Act to be a finding of fact made "in a perverse or capricious manner or without regard to the material before it", in other words, a patently unreasonable decision.
[16] However, Mr. MacDonald does not put his case on the footing the tribunal made an arbitrary or perverse finding of fact related to causation but rather the tribunal's decision was arrived at in disregard of its statutory mandate, without regard to the requirement of section 39 of the Act where the tribunal is directed by Parliament to accept any uncontradicted evidence presented to it that it considers to be credible in the circumstances and, in arriving at its conclusion, the tribunal drew inferences in medical matters for which it has no expertise.
[17] Such errors, if demonstrated, would be errors of law which would entitle Mr. MacDonald to relief under subsection 18.1(3) of the Federal Court Act on the grounds set out in paragraph 18.1(4)(c) of that Act, the tribunal having "erred in law in making a decision ... whether or not the error appears on the face of the record or not". See, Hall v. Canada (Attorney General), [1999] F.C.J. No. 1800 (F.C.A.) where Mr. Justice Sexton on behalf of the Federal Court of Appeal wrote "[the trial judge] properly held that in order to allow the appellant's application she would have to find that the decision below 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 the Board" [the Veterans' Review and Appeal Board]. In other words, owing to the deference owed to the tribunal (see, Tonner v. Canada (Minister of Veterans Affairs), [1996] F.C.J. No. 825 (F.C.A.), a decision made on such a basis is characterized, for purposes of the standard of review, as an unreasonable decision (see, Justice Evans' decision as a member of the Trial Division in McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (F.C.T.D.).)
(b) Conclusions
[18] My review of the tribunal's decision leads me to conclude it did not find the evidence provided by either Dr. Wiltshire or Dr. St. Arnaud to be not credible. Rather, it considered that evidence to be credible so far as it went.
[19] As I noted before, the tribunal's decision rests on causation and, in order to conclude insufficiency of evidence to establish causation, the tribunal discounted the only medical evidence on the record by drawing inferences on medical matters when it did not have on the record other medical evidence on the point which it could properly have weighed but rather relied, in order to fill the gap, on its own knowledge and the research it conducted.
[20] I do not think there is any doubt the tribunal made medical findings in order to reach its conclusion on insufficiency of evidence related to causation. I point to the following:
(1) While accepting Dr. Wiltshire's opinion the ACL tear was consistent with an injury incurred as long as 30 years ago, the tribunal minimized that opinion by saying "[H]owever, the Board would expect that if the partial ligament tear had occurred in 1968, there would have been complaints and/or treatment even if intermittent over the years".
(2) In discounting the medical evidence, the tribunal stated the absence of even slight degenerative change or osteoarthritis to the right knee as shown in the arthroscopy and in the x-ray 30 years after the ligament tear would seem to support a more recent injury to the ACL.
(3) In reaching its conclusion, the tribunal did its own research and made certain findings about the ACL having a very limited blood supply and usually not healing once injured. This finding led the tribunal to state there was a lack of explanation on how one would differentiate between a recent tear to a ligament compared to one that was significantly older.
(4) Furthermore, the tribunal observed the lack of degenerative change.
(5) The tribunal discounted Dr. St. Arnaud's opinion Mr. MacDonald's varicose vein could be associated with the football injury but had not other evidence or explanation as to the relationship between the varicose vein and the football injury. I note the record shows the presence of small varicosity in his discharge examination in 1975. [certified record page 92]
(6) The tribunal used its own medical judgment to discount Dr. St. Arnaud's conclusion about instability in Mr. MacDonald's right knee by stating such instability was not confirmed by the arthroscopy.
(7) The tribunal interpreted Dr. Wiltshire's operation report and made judgments on medical matters while it had no medical evidence before it interpreting Dr. Wiltshire's operation report.
[21] The tribunal's approach in this case resembles the case of Laurent Rivard c. Procureur général du Canada, [2001] FCT 704, decided by Mr. Justice Nadon while a member of the Trial Division. In the Rivard case, Justice Nadon allowed a judicial review against a decision of the Veterans Review and Appeal Board which denied an applicant a disability pension.
[22] In Rivard, supra, Justice Nadon made these points taking into account the legislative scheme provided by the Pension Act and in the Veterans Review and Appeal Board Act:
(1) In accordance with section 39 of the Veterans Review and Appeal Board Act, the tribunal must accept any uncontradicted evidence presented by the applicant that it considers to be credible in the circumstances and must also draw conclusions that are the most favourable to the applicant [see paragraph 22 of his reasons] noting, however, a tribunal may reject medical evidence if it had before it contradictory evidence, or if it states reasons, which would bear on credibility and reasonableness [see also Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (T.D.), a decision of Justice MacKay].
(2) Section 38 of the Act which allows the tribunal to seek medical advice on any medical matter, suggests the tribunal has no particular medical expertise. See paragraph 40 of Justice Nadon's decision and following paragraphs in which he cites several decisions of the Trial Division supporting this view and in particular, paragraph 42 where he states the very existence of section 38 suggests the Board does not have an inherent jurisdiction over medical matters and does not have any particular medical expertise that would enable it to state views without supporting evidence.
[23] Based on Rivard and Wood, supra, and the case law cited by Justices Nadon and MacKay in support of the propositions they made in those cases, I conclude the tribunal made similar errors in the case before me justifying the quashing of the tribunal's decision.
[24] In short, the tribunal embarked upon forbidden territory making medical findings to discount uncontradicted credible evidence when it had no inherent medical expertise and had the ability to obtain and share independent medical evidence on points which troubled it.
[25] While my findings are sufficient to dispose of this application, I add that I am troubled by the failure of the tribunal to comment on the evidence in the record showing Mr. MacDonald had been treated immediately after his football injury and his medical records, for a critical period (May to November 1968), were lost by the Defence establishment.
[26] For all of these reasons, this judicial review application is allowed, the February 12, 2002 decision of the tribunal is set aside and the matter is remitted to the Veterans Review and Appeal Board for re-determination by a differently constituted panel.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
OCTOBER 30, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-609-02
STYLE OF CAUSE: GREGORY ALLAN MACDONALD
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Montreal (Quebec)
DATE OF HEARING: September 2, 2003
REASONS FOR [ORDER or JUDGMENT] : [AUTHOR]
DATED: October 30, 2003
APPEARANCES:
Gregory Allan MacDonald APPLICANT REPRESENTING HIMSELF
Patricia Gravel FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR RESPONDENT
Montreal, Quebec