VETERANS |
Martel v. Canada (Attorney General)
T-1131-03
2004 FC 1287, Russell J.
21/9/04
46 pp.
Judicial review of Veteran's Review and Appeal Board (VRAB) decision upon reconsideration of earlier decision awarding 3/5 disability for right knee injury connected to peace time military service (Pension Act, s. 21(2))--From 1982-1987 participated in compulsory physical fitness program under which members sign up for authorized activities such as cross-country skiing, squash to maintain fitness level--When participating, considered "on duty"--Injured right knee in 1985 when cross-country skiing, underwent surgery to repair ACL tear--Off sick 2 1/2 months, physiotherapy for 12 months--Sent to Combat Leader's Course against treating physician's advice--While under medical restrictions, transferred to C.F.B. Petawawa where participated in full field exercises for 3 years without accommodation for medical condition--In 1990, re-injured knee in non-service-related activity, required arthroscopic surgery--In 1995, injured left shoulder in fitness-registered skiing--In 1998 filed pension application re: knee, shoulder injuries causing post-traumatic arthritis in knee, bursitis in shoulder--Department denied knee injury claim as not sustained on duty, allowed 10% disability re: shoulder-- VRAB upheld denial after applicant provided additional evidence--Applicant supplied still further evidence at Entitlement Appeal hearing and this time Board ruled 1985 skiing injury major cause of claimed condition, granted aggravation award of 3/5 for part of disability directly connected with military service--Assessment Review Panel assessed knee disability at 20%--In 2003, applicant filed for reconsideration of 3/5 entitlement re: knee--Submitted second doctor's report concluding link between 1985, 1990 injuries as knee not entirely healed by 1990, causing predisposition to re-injury--VRAB rejected this opinion--VRAB procedure explained--Arguments on standard of review, jurisdictional error --Applicant submits VRAB erred in failing to draw from evidence every reasonable inference in his favour, and in failing to accept uncontradicted evidence, contrary to Pension Act, ss. 2, 21--Under VRAB Act, s. 3 statutory provisions to be liberally construed in applicant's favour--S. 39(b) stating Board shall accept any uncontradicted evidence adduced by applicant if considered credible--Any doubt to be resolved in applicant's favour--Claimants considerably assisted by VRAB Act, ss. 3, 39--Under Pension Act, s. 21 if veteran suffers disability resulting from injury arising out of or directly connected with military service in peace time, pension may be granted even if initial injury, disease did not result in disability but caused condition that led to disability--Board of opinion, thesis of second doctor notwithstanding, it had sufficient contradictory evidence (treating physician's April, 1987 report) to conclude applicant's recovery had not been other than normal--VRAB apparently of view opinion of former trumped by latter's 1987 assessments--Fact was that treating physician's opinion did not, and could not, have addressed issue as to connection between injuries of 1985, 1990, since his report was prepared in 1987--Only medical evidence on connection before VRAB was that of second doctor, which Board never said was not credible--By rejecting it, VRAB erred in application of Act, s. 39--This jurisdictional error nullified decision in entirety--No medical evidence to support Board's supposition injury apparently healed in 1987 could not result in pre-disposition, become direct cause of injury to same knee in 1990--Matter remitted to different VRAB panel --Pension Act, R.S.C., 1985, c. P-6, ss. 2, 21(2) (as am. by S.C. 1990, c. 43, s. 8; 2000, c. 34, s. 21)--Veterans Review and Appeal Board Act, S.C. 1995, c. 18, ss. 3, 23, 31, 32(1), 39.