PENSIONS |
Schott v. Canada (Attorney General)
T-2138-99
Hansen J.
25/1/01
11 pp.
Judicial review of Veterans Review and Appeal Board's dismissal of applicant's appeal from Entitlement Review Panel's dismissal of appeal from Department of Veterans Affairs' denial of disability pension--In January 1990, applicant experiencing severe chest pain--Diagnosed with sarcoidosis, treated accordingly--Pain abated, medication terminated--At end of August 1990 pain returned, sarcoidosis medication re-prescribed--Pain continued, increasing in intensity, changing in nature--By May 1991 applicant in extreme pain--Tests revealed two fractured vertebrae, spinal tumour--On May 29, tumour removed, vertebrae fused, metal rods inserted in spine--Removal of tumour finally relieving pain--1992 application for disability pension alleging medical mismanagement of condition, specifically, less than timely diagnosis of cancer resulting in more extensive surgery, disability--Applicant submitted supporting medical opinions from Drs. Hurley, Jaeger that there was delay in cancer diagnosis, which may have contributed to extensive nature of surgery, severity of resulting disability--Board relying on statement of Dr. Clark that no evidence of medical mismanagement in diagnosis, treatment; stating no contradictory medical opinion--Standard of review patent unreasonableness i.e. Court may interfere only if error of law, erroneous finding of fact made in perverse, capricious manner or without regard to material before it--Veterans Review and Appeal Board Act, s. 39 requiring Board to draw every reasonable inference in favour of applicant, accept any uncontradicted evidence considered credible, resolve any doubt in favour of applicant--In extrapolating from Dr. Jaeger's statement unable to account for delay in cancer diagnosis that entire opinion speculative, Board misconstruing evidence--Dr. Jaeger specifically stated focus on previous diagnosis could account for 10-month time frame from time applicant complained of pain to time finally referred to sarcoid expert, who quickly uncovered source of pain--Both Drs. Hurley, Jaeger stating applicant's disease probably present in clinical, detectable stage for six to twelve months prior to detection--Board questioning neither credibility nor trustworthiness of medical opinions, but concluded speculative--Could have reached its conclusion only by ignoring evidence of Drs. Hurley, Jaeger, misconstruing evidence or misdirecting itself as to effect of s. 39 in face of credible, trustworthy evidence--Also erred in law by failing to reverse onus of proof once applicant produced evidence of medical mismanagement--In light of statutory mandate to resolve any doubt in weighing of evidence in favour of applicant as provided in ss. 3, 39, Board's decision set aside--Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 39.