VETERANS |
Kozak v. Canada (Attorney General)
T-646-00
2002 FCT 169, Dawson J.
14/2/02
12 pp.
Application for judicial review of Veterans Review and Appeal Board decision affirming Entitlement Review Panel decision awarding applicant 2/5 of pension entitlement for condition of tenosynovitis of right ankle--Applicant seeking full entitlement--While employed in Armed Forces, applicant suffered right ankle injury in 1996 while undergoing morning physical training run under command of officer--Ankle injury since developed into tenosynovitis --When applicant applied for disability pension in January 1998, Minister found no evidence service factors aggravated applicant's inversion sprains of right ankle as she did not have tendon complaints at time of discharge from service, or for one year following discharge--Review Panel awarded 2/5 pension entitlement, withholding 3/5 entitlement for portion of claimed condition reasonably attributable to applicant's normal lifestyle activities-- Appeal Board affirmed decision on basis of absence of documentation relating injury to service factors--Applicant seeking to overturn Appeal Board decision on basis made decision without regard for evidence before it, or made it on erroneous finding of fact--Application allowed--Question of whether applicant's disability caused or aggravated by military service being one of fact, considerable deference should be afforded to Appeal Board decision--Standard of review patent unreasonableness--Here, no medical opinion specifically relating cause of right ankle tenosynovitis to military service--However, not open to Appeal Board to dismiss appeal on grounds it did--In absence of any evidence on record to support conclusion of non-service related injury or condition, decision on this basis, as Appeal Board's, not supported by evidence--Decision therefore patently unreasonable.