Date : 20040716
Docket : T-67-03
Citation : 2004 FC 996
BETWEEN :
BRIAN C. BRADLEY
Applicant
AND :
THE ATTORNEY GENERAL FOR CANADA
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, from a decision of the Veteran's Review and Appeal Board of Canada ("VRAB") dated December 16, 2002, denying the applicant's application for disability pension benefits under subsection 21(2) of the Pension Act, R.S.C. 1985, c. P-6, on the basis that his medical condition, cervical 5-6 radiculopathy, did not arise out of, nor was directly connected with, the applicant's military service in peacetime. The medical condition the applicant complains of, cervical 5-6 radiculopathy, involves pain in the cervical spine, which comprises of the first seven bones of the spinal column. That is, the applicant's cervical 5-6 radiculopathy involves pain in his neck and upper back area.
Facts & Background
[2] The applicant was born on August 4, 1949. He served in the militia from March 5, 1996 until August 15, 1966, and in the Reserve Force from July 14, 1988 to December 9, 1988. He then served in the Regular Force from December 14, 1988 to March 30, 1993.
[3] On July 14, 1990, the applicant was a junior officer in training onboard HMCS Qu'Appelle, which was tied up in Vancouver. The applicant stated that he had spent some time in the Mess, had consumed three or four beers over a couple hours duration, and, in the early evening, had left the Mess to shower. While in the shower, he lost his balance and fell against the bulkhead, hitting his back and wrenching his arm. The medical assistant who attended to him noted that the applicant was experiencing severe spasms in his lower back. The applicant was hospitalized and remained bedridden until the ship returned to her home port of Esquimalt, British Columbia, a few days later.
[4] Upon returning to Esquimalt, the applicant was transferred to a military hospital on July 19, 1990. During his stay in the hospital, the applicant complained of muscle spasms in his back and pain in his right mid-lumbar region (lower back) with spinal tenderness. A report dated August 4, 1990, indicated that the applicant had been diagnosed on discharge on July 24, 1990 with low back pain.
[5] On March 28, 1996, the applicant applied for a disability pension under the Pension Act, claiming that he suffers from cervical 5-6 radiculopathy because of the accident in the shower while aboard HMCS Qu'Appelle in Vancouver. On February 4, 1997, the Department of Veterans Affairs rejected the application.
[6] An appeal to the Entitlement Review Panel was similarly rejected on May 8, 1997, as was an appeal to the VRAB on December 3, 1997. The applicant then applied to the Federal Court of Canada for judicial review of the VRAB's decision.
[7] On January 27, 1999, Mr. Justice Blais set aside the VRAB's decision and referred the application back for rehearing and redetermination by a differently constituted panel.
[8] A new panel of the VRAB reconsidered and rejected the applicant's claim by letter dated May 18, 1999. The applicant then submitted a further medical report, and a few decisions in other cases, with a request that the VRAB reconsider its decision. The VRAB, by letter dated November 25, 1999, refused to do so. The applicant then applied to the Federal Court of Canada for judicial review of the VRAB's decision.
[9] On July 13, 2001, Mr. Justice MacKay set aside the VRAB's decision and referred the application back for rehearing and redetermination by a differently constituted panel.
[10] The VRAB conducted a new hearing on August 12, 2002 and, in a decision dated December 16, 2002, denied the applicant's disability pension. That decision is the subject of this application for judicial review.
Relevant Legislation
Pension Act, R.S.C. 1985, c. P-6
2. The provisions of this Act shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to provide compensation to those members of the forces who have been disabled or have died as a result of military service, and to their dependants, may be fulfilled.
21. (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;
. . .
(3) For the purposes of subsection (2), an injury or disease, or the aggravation of an injury or disease, shall be presumed, in the absence of evidence to the contrary, to have arisen out of or to have been directly connected with military service of the kind described in that subsection if the injury or disease or the aggravation thereof was incurred in the course of
. . .
(f) any military operation, training or administration, either as a result of a specific order or established military custom or practice, whether or not failure to perform the act that resulted in the disease or injury or aggravation thereof would have resulted in disciplinary action against the member; and
Veterans Review and Appeal Board Act, S.C. 1995, c. 18
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.
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.
Issues
(1) What is the applicable standard of review for a decision of the VRAB?
(2) Was the VRAB's finding that the applicant's accident did not arise out of, nor was directly connected to his military service, pursuant to subsection 21(2)(a) of the Pension Act, unreasonable?
(3) Was the VRAB's finding that the medical evidence before it did not demonstrate that the accident caused the injury for which a pension was sought patently unreasonable?
Analysis
(1) What is the applicable standard of review for a decision of the VRAB?
[11] It is well-settled law that the standard of review for decisions of the VRAB is that put forth by Mr. Justice Evans in McTague v. Canada (Attorney General), [2000] 1 F.C. 647 (T.D.), and applied by MacKay J. in Bradley v. Canada (Attorney General), 2001 FCT 793. That is, the appropriate standard of review for a decision of the VRAB is reasonableness simpliciter, except where the decision concerns a finding or interpretation from conflicting or inconclusive medical evidence as to whether a claimant's disability was in fact caused or aggravated by military service. In the latter case, the standard of review is patent unreasonableness.
(2) Was the VRAB's finding that the applicant's accident did not arise out of, nor was directly connected with his military service, pursuant to subsection 21(2)(a) of the Pension Act, unreasonable?
[12] In considering whether the applicant's accident in the shower while aboard the HMCS Qu'Appelle arose out of, or was directly connected to his military service, the VRAB noted:
...The facts indicate that on 13 July 1990 the Appellant was serving as a Junior Officer onboard the HMCS Qu'Appelle. At that time, he was in the process of completing phase four of his Officer Training. On 13 July 1990, the HMCS Qu'Appelle was "tied up" at dockside in Northern Vancouver Island. A review of the evidence surrounding the Appellant's activities leading up to the Appellant's fall in the shower would indicate that the Appellant had completed his actual military duties. The exact time he concluded his duties for the day is not specifically indicated in the facts.
However, it appears clear from the information on file that for some hours prior to his accident in the shower, the Appellant was on his own time. He was free to do as he chose. He chose on that particular evening, to visit and remain in the Mess for some time, socializing and relaxing after dinner. While in the Mess, he recalls that he consumed three or four beers over a couple of hours. The Appellant estimated that he left the Mess after a couple of hours. It was at this point, that he decided he would take a shower. His intention was to take his shower, and then leave the ship to go onshore for the remainder of the evening...
. . .
The Panel notes that the fact that the accident in the shower occurred on board a ship on which the Appellant was serving, and which in fact served as his living quarters. However, this factor, while significant, does not conclusively establish entitlement to a pension under subsection 21(2) of the Act, because the mere fact that an injury occurred in, or around facilities provided by the military does not automatically mean any disability caused by the injury is directly connected to military service. The issue which must be examined is whether the circumstances surrounding the activity in which the Appellant was engaged when the accident occurred, suggest that military service played a direct or primary role in causing the accident. The reasons why the Appellant was undertaking the activity, and the surrounding chain of events leading up to the activity are all relevant considerations in resolving this issue. In this case, the Panel has reviewed the chain of events leading up to the accident in the shower, and the evidence with respect to the accident itself, and makes the following observations.
The facts relating to the chain of events and circumstances leading up to the incident in the shower 1990 do not suggest that the Appellant's activities directly preceding the accident in the shower, related to or flowed in any significant or direct way from the Applicant's position as a Junior Officer on board the ship. There is no evidence that the Appellant was ordered to take a shower. The decision to take the shower at that time appears to have been a voluntary activity. There is no evidence in this case to suggest that this activity for some reason flowed directly from any aspect of the Appellant's military duties. The activity of showering is an activity which would have to be performed regardless of whether the Appellant was a member of the Forces or not. It is inherently in the nature of a personal activity, rather than an activity flowing directly from military responsibilities. The purpose for which the Appellant made his way to the shower at that particular time cannot be viewed as being expressly or impliedly in furtherance of military service. In fact, the evidence would indicate that the activity which the Appellant intended to undertake after the shower was social and personal in that he was planning to go onshore for the remainder of the evening for personal reasons.
The evidence shows then in the hours preceding the accident in the shower the Appellant had simply been on his "own time," during which he had sufficient freedom to visit and remain in the Mess for some time, socializing and relaxing. That he was not required to make himself available for military duties is clear from the fact that the Appellant was in a position to consume alcoholic beverages while in the Mess that evening. Obviously, this would only be an activity which would be appropriate for an Officer who had completed his or her duties for the day and who was no longer expected or expecting to make themselves available to carry out or perform commands or engage in further duties related to their military service. This evidence points to the conclusion that the activities of the Appellant at the time of his accident and for some time prior to his accident were within the realm of personal activities, rather than within the realm of professional or occupational activity related to military service.
. . .
Furthermore, the Panel notes that while the fact that the accident occurred on the HMCS Qu'Appelle is a key fact, the remaining facts and circumstances of the case do not suggest or establish that it was anything particular or specific to the environment on board the ship which caused the accident. While the accounts as to how the accident occurred differ in some respects, the fact which emerges from all of the accounts is that the accident resulted when the Appellant lost his balance while washing himself. Whether the consumption of alcohol played a significant role in causing the Appellant to lose his balance cannot be determined from the evidence. However, this, and the fact that the intention was to take a shower and then go onshore for personal and recreational reasons, would be another factor which identifies the overall context in which the accident occurred, as primarily within the realm of personal activity, rather than in the realm of activities which can be directly connected to military service.
There is also no evidence before this Panel which would indicate that showering while on board the HMCS Qu'Appelle that evening would be considered to be an inherently more dangerous activity than showering elsewhere, such as in one's personal residence, or in private or public accommodations. The evidence indicates that the ship in question was tied up at the dock. The evidence does not indicate that the ship was subject to rough seas or that there were environmental, weather, or other circumstances which rendered the ship a place more likely than not for an accident of this nature to occur. Again, the Panel must observe that the evidence indicates that the accident resulted when the Appellant lost his balance while in the process of attempting to wash his leg, which would not inherently suggest that some extraordinary condition or feature of the ship-board environment caused the accident. On this issue, the Panel must note that the facts and evidence do not support the conclusion that "but for" the fact that the Appellant was on board the HMCS Qu'Appelle, that he would not have fallen in the shower. That the accident in the Appellant's case occurred on board the HMCS Qu'Appelle would appear from the evidence to be only an ancillary or incidental factor relating to the place or setting of the accident. The circumstances in relation to the accident itself do not support the inference that the environment on board the HMCS Qu'Appelle was a direct or primary causal factor which led to the accident. The Panel is unable to reasonably infer that the military environment in which the accident occurred, played a direct or primary role in causing the ultimate accident.
Accordingly, the Panel after reviewing all of the evidence, information, facts and circumstances relating to the 1990 accident in the shower on board the HMCS Qu'Appelle, is unable to find that the facts of the case can reasonably support the inference under section 39 of the Veterans Review and Appeal Board Act that the accident was directly related to, or arose out of the Appellant's military service, within the meaning of subsection 21(2) of the Pension Act.
[13] The applicant submits that the VRAB erred by failing to observe subsection 21(3) of the Pension Act, given that the applicant's accident took place during a training period aboard the HMCS Qu'Appelle, and that he, along with all other officers onboard, were required to be clean while along side (docked at any port). Essentially, the applicant is submitting that this requirement for cleanliness results in his fall in the shower as being directly connected with his service during peacetime.
[14] Upon examining the decision under review, it is apparent that the VRAB, in coming to the conclusion it did, did not isolate the activity in which the applicant was engaged in (showering) from the circumstances of his military service. The respondent submits, and I agree, that had the VRAB considered the fact that the applicant was in training aboard the HMCS Qu'Appelle in isolation as determinative of the causal connection between the injury and the applicant's military service, it would constitute an error of law. However, the VRAB reviewed all of the evidence and relevant jurisprudence in coming to the decision it did, and as such, did not err in finding that the applicant's accident did not arise out of, nor was directly connected with his service during peacetime.
(3) Was the VRAB's finding that the medical evidence before it did not demonstrate that the accident caused the injury for which a pension was sought patently unreasonable?
[15] The applicant submits that the VRAB selectively relied upon portions of some medical evidence, while ignoring other professional medical opinions that attribute the applicant's cervical 5-6 radiculopathy to his fall in the shower, thus failing to observe procedural fairness.
[16] In its decision, the VRAB reviewed and discussed the applicant's medical evidence at great length:
Accordingly, the Panel has before it a great deal of medical documentation showing that the Appellant experienced problems with and sought medical attention for low back pain after the slip and fall in 1990. There is a notable absence of evidence on the record indicating that the Appellant was complaining of neck injury, or that he sought medical attention for complaints or injury to the neck, or that he was medically investigated for such a problem. The medical documentation on file also refers to a 1969 motor vehicle accident in which the Appellant sustained severe injury to the middle and upper back, neck and head regions.
. . .
In light of the objective medical evidence, the rather cursory statements offered in the medico-legal opinions of Drs. Coady and Killeen on this issue do not credibly reconcile the inconsistencies between the Appellant's current recollections on why and when his shoulder and neck symptoms first arose, and the documentation showing his actual physical complaints at the time of the 1990 injury related only to his low back pain, as well as the impact of the motor vehicle accident of 1969. The Panel finds that the medico-legal opinions which have been offered in support of the Appellant's assertion that his cervical radiculopathy is a disability arising out of his 1990 accident, are not credible in relation to the issue of causation of the Appellant's current cervical radiculopathy because of their obvious reliance on a version of facts which is inconsistent with objective medical evidence in the remainder of evidence on file.
. . .
While it is clear that both of the opinions from Dr. Killeen or Dr. Coady seek to support the Appellant's position that his degenerative problems are attributed to the specific 1990 event which he described to them, neither physician supported their opinions with any persuasive analysis or insight into the reasoning process which could support such a conclusion. The most recent objective evidence available with respect to the Appellant's current cervical complaints, indicates that the Appellant's cervical radiculopathy involves degenerative changes at C5-6. As well, it appears that EMG studies suggested some cervical nerve root compression. It is not a controversial point that degenerative changes accompany the aging process. The Merck Manual, Seventeenth Edition, states that most persons have degenerative change by their 40th year. The Appellant in this case is over 50 years of age. It is also indicated in Chapter 52 of The Merck Manual, Seventeenth Edition, which deals with degenerative joint disease and osteoarthritis, that these are known causes of nerve root compression and radiculopathy in the cervical spine.
Nevertheless, the medico-legal opinions do not address the issue of how the natural degenerative process would be expected to impact on the Appellant's neck and shoulder problems. The persuasiveness of the opinions is also diminished because they simply state that the Appellant's current cervical, and shoulder complaints are related to his 1990 slip and fall without any explanation of the reasons why this would be the case. In particular, Dr. Coady's opinion as to causation contains no discussion of the underlying principles which could lead an orthopaedic surgeon to the conclusion that the Appellant's problems would be validly connected specifically to the 1990 injury in the shower.
. . .
Unlike the opinions of Dr. Coady and Dr. Killeen, the medico-legal opinion provided by Dr. Reardon was not based on assumptions contradicted by other evidence on file, and is credible and reasonable in its conclusions. However, it did not give conclusive support to the Appellant's legal claim, and also indicated that the Appellant's current pain was "multifactoral," which would indicate more than one cause for the Appellant's current complaints, as opposed to a specific and isolated event such as the fall in 1990. Dr. Reardon found that he did not have a sufficient basis on the information before him, to form an opinion on the issue of causation. This Panel finds that opinion is neutral in that it neither supports, nor does it rebut the Appellant's argument. However, there is also no credible support elsewhere in the evidence to support the Appellant's argument that his current complaints of cervical radiculopathy are linked to the accident in 1990. As already explained in significant detail by this Panel, the conclusions offered on causation of the Appellant's claimed condition in the medico-legal opinions of Dr. Coady and Dr. Killeen are neither credible nor reasonable as they are based on an unreliable factual account which is contradicted in material respects by the remaining evidence on file. As a result, these particular medico-legal opinions fail to lend persuasive or credible support to the argument that it was the 1990 fall in the shower which is directly responsible for causing the Appellant's current complaints including the cervical 5-6 radiculopathy, the degenerative changes which are present at C5-6, or the Appellant's cervical nerve root compression.
The Panel must conclude that a consideration of the entirety of the facts, and circumstances of the case, along with the medical evidence and opinions placed before the Panel on this issue, does not reasonably raise the inference that there is a direct causal link between the 1990 accident in the shower and the Appellant's current complaints relating to cervical 5-6 radiculopathy...
[17] The VRAB is in the best position to examine the credibility of evidence submitted in support of an appeal and a reviewing court should not interfere with such findings unless the conclusions made by the VRAB are patently unreasonable.
[18] As noted by counsel for the respondent, the medical documents that were prepared at or around the time of the applicant's accident indicate that the region of the applicant's body that was reportedly injured in the fall was the lumbar spine (lower back), and not the cervical (neck) region, as the applicant now claims.
[19] The medical documentation on file indicates that lower back pain constituted the applicant's primary complaint after his fall. The Emergency Report dated July 14, 1990 indicated that the applicant had severe spasms in his right lower back and that he was diagnosed as having a strained lower back. Additionally, the Short Stay Record from his admission into the military hospital stated that the applicant was admitted because of a six-day history of right flank pain. Further, case history from the applicant's hospital stay noted that he complained of pain in the right mid lumbar region and spinal tenderness and mild back strain.
[20] During the applicant's stay in the military hospital, x-rays were done and an X-Ray Requisition and Report Form dated July 19, 1990 indicated no abnormality in the applicant's spine, other than a slight wedge compression of D-12 related to a previous trauma. In the applicant's Forces enrolment form, he stated that he had been in a car accident in 1969 and suffered head and neck injury and seizures as a result. Thus, the slight compression of D-12 recognized by the radiologist as being related to "previous trauma" is likely in regards to the applicant's 1969 car accident. There is no mention in the x-ray report of any abnormality or injury to the applicant's cervical spine, the medical condition he now complains of.
[21] A report dated August 4, 1990, indicated that the applicant had been diagnosed on discharge from the hospital on July 24, 1990 with low back pain. The Applicant was later referred to physiotherapy for his lower back pain and subsequent physiotherapy reports continue to refer to a lumbar strain.
[22] The applicant's medical examination for release from the Forces dated January 4, 1993 noted that the applicant was suffering from chronic T4-T5 back pain (the thoracic or lower back). With respect to the applicant's head and neck, it is observed that he had full cervical range of motion and a non-tender C spine. Although it makes reference to the applicant's continuing complaint of back pain, it identifies no spinal abnormality and notes that the applicant had a full range of motion and normal gait and posture. The first mention of cervical 5-6 radiculopathy did not occur until May 1997, when the applicant applied for a pension based on this medical condition.
[23] The VRAB conducted a thorough analysis of the evidence before it and expressly dealt with the credibility of the medical evidence/opinions given by Doctors Coady, Reardon and Culleen. It was open to the VRAB to prefer the objective medical evidence provided at and around the time of the applicant's accident to that of the opinions given by Doctors Coady, Reardon and Culleen many years later, especially in light of the fact that the medical opinions were based on the applicant's version of the accident which differs from the medical reports at the time of the accident, and that is with respect to the applicant's current claim that he hit his neck, in addition to his back, during the accident. The findings as they relate to the issue of a causal connection between the applicant's accident and his medical condition are not patently unreasonable and, as such, this Court shall not interfere with its findings.
[24] Finally, the applicant submits that the VRAB erred by not resolving any doubt in favour of the applicant, as is required under section 39 of the Veterans Review and Appeal Board Act. The applicant is correct in that section 39 is of particular importance, as it specifies that the VRAB must "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; accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and 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."
[25] However, in its decision, the VRAB recognized the importance of section 39:
In weighing evidence and drawing conclusions and inferences in this case, this Panel has also been cognizant of its obligation under section 39 of the Veterans Review and Appeal Board Act to draw from the evidence and all the circumstances of the Appellant's case, any reasonable inference in the Appellant's favour. Under section 39 of the Veterans Review and Appeal Board Act, the Board must draw every favourable inference, which appears reasonable from the evidence and circumstances of the case. However, the Appellant is also under an obligation to provide sufficient evidence to support the favourable inferences which they seek. As the Court found in the case of Tonner v. Canada (Minister of Veterans Affairs) (1995), 94 F.T.R. 146, (affirmed by Federal Court of Appeal [1996] F.C.J. No. 825), section 39 of the Act does not mean that whatever submission is made by an Appellant, that submission must automatically be accepted by the members of the Board. Only submission and assertions supported by credible evidence must be accepted.
[26] As noted by the VRAB, only submissions and assertions supported by credible evidence must be accepted. Although the applicant submitted a great deal of medical evidence and opinions, the VRAB found much of the evidence supporting the applicant's case to not be credible, or, in the case of the evidence given by Dr. Reardon, to be neutral. The VRAB explained, in detail, its reasons for rejecting the medical evidence tendered and, in doing so, did not breach the basic principle found in section 39 that requires it to resolve any doubt in favour of the applicant. After carefully examining the decision of the VRAB in its entirety, I am satisfied that the VRAB complied with section 39 in its evaluation of the evidence and that it was not merely paying "lip service"to it.
[27] Accordingly, this application for judicial review is hereby dismissed.
JUDGE
OTTAWA, Ontario
July 16, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-67-03
STYLE OF CAUSE: Brian C. Bradley v. The Attorney General of Canada
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: June 8, 2004
APPEARANCES:
Brian C. Bradley FOR APPLICANT
Lori Rasmussen FOR RESPONDENT
SOLICITORS OF RECORD:
Department of Justice Canada
Halifax, NS FOR RESPONDENT
Date : 20040716
Docket : T-67-03
OTTAWA, Ontario, this 16th day of July, 2004
PRESENT: The Honourable Mr. Justice Rouleau
BETWEEN :
BRIAN C. BRADLEY
Applicant
AND :
THE ATTORNEY GENERAL FOR CANADA
Respondent
ORDER
This application for judicial review is dismissed.
JUDGE