Martel v. Canada (Attorney General)

Martel v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2004-09-21
Neutral citation
2004 FC 1287
File numbers
T-1131-03
Notes
Digest
Decision Content
Date: 20040921
Docket: T-1131-03
Citation: 2004 FC 1287
Ottawa, Ontario, this 21st day of September, 2004
Present: The Honourable Justice James Russell
BETWEEN:
JEAN MARTEL
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Veteran's Review and Appeal Board ("VRAB") of May 23, 2003 ("Decision"), made in the course of a reconsideration of an earlier decision dated May 25, 2000 in which Mr. Jean Martel ("Applicant") was denied full entitlement to a disability pension for an injury to his right knee. In its decision of May 25, 2000, the VRAB granted the Applicant an award of three-fifths of the overall disability for that part of the disability or aggravation that arose out of, or was directly connected with, military service in peace time pursuant to ss. 21(2) of the Pension Act, R.S.C. 1985, chap. P-6 ("Pension Act").
BACKGROUND
Service History: January 1979 to September 25, 1997
[2] The Applicant was a member of the Canadian Armed Forces from 1979 to 1997. His service included postings at Petawawa, British Columbia, Ottawa and Israel.
[3] From 1982 to 1987, he was a member of the 764 Communications Squadron and participated in a compulsory physical fitness program called the General Wylie Award Program. Under this program, members had to sign up for certain authorized activities, such as cross-country skiing and squash, in order to maintain an acceptable level of fitness and accumulate qualifying points towards certification in the program. When members engaged in these activities, they were considered to be "on duty." The General Wylie Award Program is recognized as a component of the Canadian Forces Expres Plan ("CF Expres Plan"), which is the physical fitness program that is a mandatory military requirement for members of the armed forces.
The Injuries - 1985, 1990 and 1995
[4] On or about December 29, 1985, while cross-country skiing, the Applicant sustained an injury to his right knee and underwent surgery for an anterior cruciate ligament ("ACL") tear repair on December 31, 1985.
[5] After the surgery, the Applicant was off on sick leave for two and a half months. He was then required to follow a treatment plan that included a cast for 5 months, physiotherapy for over 12 months, and personalized individual home exercises. He was told to follow-up with his treating physician, Dr. Smallman, every 6 months or so for 2 to 3 years.
[6] On September 23, 1986, Dr. Smallman recommended that the Applicant not participate in the Junior Leader's Course until the Spring.
[7] Notwithstanding Dr. Smallman's recommendation, the Applicant was sent to the Combat Leader's Course, which is the equivalent of the Junior Leader's Course, effective January 1987 and there he participated in extensive combat training for a period of 12 weeks.
[8] This extensive combat training was contrary to the recommendations of the Applicant's treating physician who had recommended placing the Applicant on a temporary category to allow him time to rehabilitate. In his report of April 30, 1987, Dr. Smallman acknowledged that the Applicant had some problems at the end of his training course from January to March 1987. Dr. Smallman also indicated in this report that the Applicant was not fully rehabilitated and should have been given a temporary category and allowed to "train for the next several months even up to a year in order to get himself back to optimal physical condition."
[9] In June 1987, the Applicant was assigned a temporary medical category for 6 months of light duties and access to medical care.
[10] Despite these medical restrictions, effective August 1987, the Applicant was transferred to Petawawa and participated in full field exercises for the next 3 years without accommodation for his medical conditions.
[11] On April 7, 1990, the Applicant re-injured his knee during a non-service related activity for which he sustained arthroscopic surgery with ACL reconstruction.
[12] On January 27, 1995 the Applicant sustained an injury to his left shoulder while participating in a fitness registered skiing activity.
The Claim
[13] On April 24, 1998, the Applicant filed a First Application for pension entitlement for injuries he had suffered to his right knee and left shoulder pursuant to s. 21(2) of the Pension Act. Specifically, the claims were for "Torn Cruciate Ligament Right Knee (Operated) leading to Post Traumatic Arthritis and Impingement Syndrome and Bursitis Left Shoulder/Tendonitis Rotator Cuff Left Shoulder."
[14] On or about October 29, 1998, the Department of Veterans Affairs ("Department") ruled on the Applicant's application for disability. The Department denied his claim for the right knee injury on the basis that it was not pensionable under ss. 21(2) of the Pension Act. According to the Department, he did not sustain the injury while "on duty." As for the injury to his shoulder, the Department ruled that he was entitled to a disability pension, effective April 29, 1998 for this injury and that his disability was assessed at 10%.
[15] In the Department's October 29, 1998 ruling, the Applicant was denied a disability pension for his right knee on the basis that there "was no documented evidence to establish that his right knee injury arose out of or was caused by or permanently aggravated by his military service."
[16] On or about January 27, 1999, the Applicant submitted additional evidence to the VRAB to contest the Department's denial of his entitlement to a disability pension for his right knee. In its Entitlement Review decision of March 18, 1999, the VRAB confirmed its entitlement ruling and concluded that the injury to the Applicant's right knee "did not arise out of nor was it directly connected with service in peace time."
[17] On May 25, 2000, the Applicant, through his then representative, presented new evidence before the VRAB for the Entitlement Appeal hearing which was held in Charlottetown, Prince Edward Island. Relying in part of this new evidence, the VRAB ruled that the skiing injury which the Applicant sustained to his right knee on December 29, 1985 "resulted in a major cause of the claimed condition" and awarded "an aggravation award of three-fifths, for that part of the disability that arose out of, or was directly connected" with the Applicant's military service in peacetime. The VRAB withheld two-fifths pension entitlement on the basis of the injury of April 6, 1990, which it ruled was not service related. The percentage of a condition that is related to military service is usually expressed in terms of fifths and the subsequent assessment of the degree of this disability is expressed in percentages from 0 to 100%.
[18] On August 22, 2000, the Department assigned a conditional assessment of 10% to the Applicant's right knee disability. As a result of the VRAB's decisions relating to the Applicant's entitlement and the assessment by the Department of the degree of his disability, the Applicant's pensionable assessment for his knee is 6% (3/5 x 10%).
[19] On April 4, 2003, the Assessment Review Panel in Ottawa, Ontario increased the conditional assessment of 10% for the Applicant's knee disability to 20% retroactive to September 26, 1997. In its assessment of the degree of the Applicant's disability, the VRAB considered and accepted the medical report of Dr. Michel Petit, psychiatrist, dated March 28, 2002.
[20] On February 27, 2003, the Applicant filed a reconsideration application before the VRAB, requesting the VRAB to reconsider its decision of May 25, 2000 in which he had been awarded three-fifths entitlement for his knee injury. For the purposes of this reconsideration application, the Applicant submitted the same medical report from Dr. Michel Petit, dated March 28, 2002 as he had submitted in support of the appeal of the conditional assessment of his knee disability.
[21] In his report, which is specifically referred to by the VRAB, Dr. Petit concluded that there was a link between the two injuries in 1985 and in 1990 in that the Applicant's knee had not been properly healed or rehabilitated by the time the second injury occurred. This created a predisposition to re-injury. The VRAB rejected this conclusion stating that there was no evidence to suggest that the rehabilitation of the knee had been anything but normal.
[22] Dr. Petit concluded that the second blow sustained by the Applicant to his right knee would not have resulted in such a serious tear injury had the Applicant's knee been fully rehabilitated. Dr. Petit relied on several factors in arriving at this conclusion, including the following:
(a) During the post-operative consultations, Dr. Smallman, realizing the Applicant's knee had not fully rehabilitated, had recommended that the Applicant not be assigned to a field position for up to one year and that he be assigned a temporary category for that purpose;
(b) The Applicant was assigned a temporary category but the restrictions were not sufficient in that they should have been more specific regarding activities such as running, standing still, sports involving pivoting, etc. The temporary category assigned did not specify that the Applicant was not to engage in field exercises as Dr. Smallman had recommended;
(c) The Applicant was transferred to Petawawa where he was required to engage in full field exercises;
(d) Despite the fact that the Applicant had access to physiotherapy, this treatment was sporadic due to the nature and requirements of the field exercises and training.
DECISION UNDER REVIEW
[23] In its Decision dated May 23, 2003, the VRAB confirmed its prior decision and upheld the award of a three-fifths entitlement for the Applicant's knee injury and rejected the evidence of Dr. Petit on the basis that it had no evidence to suggest that the rehabilitation of the Applicant's knee had been anything but normal.
PERTINENT LEGISLATION
[24] Any application for a pension under the Pension Act involves answering two questions:
(1) Is the Applicant entitled to a pension?; and
(2) If entitled, what is the assessment (expressed as a percentage of the extent of disability resulting from the injury in light of the Table of Disabilities and Schedule A to the Pension Act)?
[25] First level decisions are rendered by adjudicators within the Department, who review and adjudicate on written applications. Based upon information provided in the application and in an applicant's military medical documentation, the adjudicator renders a decision on various issues surrounding entitlement to pension, and the extent of disability resulting from any disability thus found to be pensionable.
[26] Where an applicant is dissatisfied with the adjudicator's decision, he or she is entitled to have that decision reviewed by way of a full hearing by a review panel of the VRAB, in accordance with s. 84 of the Pension Act. The applicant may be represented, as was the case here, and may present oral testimony or produce witnesses.
[27] Even after a review panel releases its decision, under s. 23 of the Veterans Review and Appeal Board Act ("Appeal Board Act") the panel may re-open the matter on its own motion if it determines that an error was made with respect to any finding of fact or the interpretation of any law. The VRAB is permitted to reconsider its own decisions, and may either confirm a decision, or amend or rescind a decision if it determines that an error was made.
[28] Where an applicant is dissatisfied with a decision rendered by a review panel, the applicant may appeal. A full hearing is provided with opportunity to be represented and to present documentary evidence and make argument, but no oral evidence is admissible on an appeal.
[29] By s. 31 of the Appeal Board Act, a decision of an appeal panel is final and binding. However, an appeal panel is permitted to re-open and reconsider its decision pursuant to s. 32(1) of the Appeal Board Act where the appellant has new evidence, or if the panel determines on its own motion, or it is alleged by any person, that an error was made with respect to any finding of fact or the interpretation of any law. On reconsideration, the appeal panel may confirm, amend or rescind its original decision.
[30] Section 32(1) of the Appeal Board Act sets up an extraordinary remedy. It is not simply another level of appeal. This reconsideration jurisdiction allows the appeal panel to re-visit its own appeal decision and ask itself whether, in light of new evidence or legal argument, its own previous decision would have been different had it had the benefit of that material when it made the original decision.
ISSUES
[31] The Applicant raises the following issues:
What is the applicable standard of review?
Did the VRAB err in law by basing its Decision on a patently unreasonable finding, namely that the Applicant was not entitled to full disability pension?
Did the VRAB err in law by not accepting the uncontradicted medical evidence presented by the Applicant and by failing to draw from the evidence every reasonable inference in favour of the Applicant?
Did the VRAB err in law by not applying the proper test for reconsideration?
ARGUMENTS
Applicant
Standard of Review
[32] Except with respect to errors of jurisdiction, the Applicant says that the appropriate standard of review in this case is that of patent unreasonableness. Accordingly, the Court's intervention is warranted if the Applicant succeeds in establishing that the Decision contains an error of law or is so unreasonable, arbitrary or absurd that it was made in disregard of the material before it (UES, Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at 1086 per Beetz, J.; MacDonald v. Canada (Attorney General), [1999] F.C.J. No. 346 (T.D.); Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (T.D.); Hunt v. Canada (Minister of Veterans Affairs), [1998] F.C.J. No. 377 (T.D.)).
[33] An administrative tribunal loses jurisdiction only if it acts in a patently unreasonable manner. Where, however, the issue is a breach of a legislative provision limiting a board's power, "a mere error will cause it to lose jurisdiction" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Pezim v. British Columbia (Securities Commission), [1994] 2 S.C.R. 557).
Jurisdictional Errors
[34] The Applicant submits that the VRAB committed a jurisdictional error when it failed to draw from the evidence every reasonable inference in favour of the Applicant and failed to accept uncontradicted evidence, contrary to ss. 3 and 39 of the Appeal Board Act and in a manner that is inconsistent with ss. 2 and 21 of the Pension Act.
[35] Section 3 of the Appeal Board Act mandates that its provisions are to be liberally construed and interpreted in favour of an applicant. Subsection 39(b) of the Appeal Board Act states that the VRAB shall accept any uncontradicted evidence presented to it by an applicant that it considers to be credible in the circumstances. Subsections 39(a) and (c) state that the VRAB must draw every reasonable inference in favour of an applicant, and resolve any doubt in favour of an applicant.
[36] The effect of s. 39 of the Appeal Board Act is to give claimants the benefit of any reasonable doubt:
While paragraphs (a), (b) and (c) of this section [39] may not create a reverse onus by requiring the respondent to establish that a veteran's injury or medical condition was not attributable to military service, they go a considerable way in this direction by requiring, in effect, that claimants be given the benefit of any reasonable doubt.
Metcalfe v. Canada (Attorney General), [1999] F.C.J. No. 22 (T.D.) at para. 17.
[37] The entitlement to a disability pension arises out of the provisions of ss. 2 and 21 of the Pension Act:
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;
21(2.1) Where a pension is awarded in respect of a disability resulting from the aggravation of an injury or disease, only that fraction of the total disability, measured in fifths, that represents the extent to which the injury or disease was aggravated is pensionable.
(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
(a) any physical training or any sports activity in which the member was participating that was authorized or organized by a military authority, or performed in the interests of the service although not authorized or organized by a military authority;
2. Les dispositions de la présente loi s'interprètent d'une façon libérale afin de donner effet à l'obligation reconnue du peuple canadien et du gouvernement du Canada d'indemniser les membres des forces qui sont devenus invalides ou sont décédés par suite de leur service militaire, ainsi que les personnes à leur charge.
...
21(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;
21(2.1) En cas d'invalidité résultant de l'aggravation d'une blessure ou maladie, seule la fraction - calculée en cinquièmes - du degré total d'invalidité qui représente l'aggravation peut donner droit à une pension.
(3) Pour l'application du paragraphe (2), une blessure ou maladie - ou son aggravation - est réputée, sauf preuve contraire, être consécutive ou rattachée directement au service militaire visé par ce paragraphe si elle est survenue au cours_:
a) d'exercices d'éducation physique ou d'une activité sportive auxquels le membre des forces participait, lorsqu'ils étaient autorisés ou organisés par une autorité militaire, ou exécutés dans l'intérêt du service quoique non autorisés ni organisés par une autorité militaire;
[38] In its Decision of May 25, 2000, the VRAB stated as follows:
The Board, based on a review of all the evidence in its entirety, has concluded that the skiing injury incurred on December 29, 1985, resulted in a major cause of the claimed condition and will rule to award an aggravation award of three-fifths, for that part of the disability that arose out of, or was directly connected with the Appellant's military service in peacetime. The Board withholds two fifths pension entitlement on the basis of the injury of 6 April 1990 which was not service related.
The Board committed a jurisdictional error
[39] The Applicant says that he tendered uncontradicted medical evidence that established a direct link between the first injury sustained on December 1985 and the injury he sustained in April 1990. According to the evidence of Dr. Petit, the Applicant's knee had not been satisfactorily/optimally rehabilitated such that the second injury, albeit more moderate in nature, was just as traumatic and severe as the first one due to the pre-disposition to injury of the Applicant's right knee.
[40] In accordance with s. 39 of the Appeal Board Act, the Applicant says that the VRAB must accept any uncontradicted evidence presented by the Applicant that it considers to be credible in the circumstances. Section 39 requires that uncontradicted and credible evidence should be accepted as determinative of the issue. In light of the fact that the VRAB deemed the evidence of Dr. Petit to be credible in the context of the assessment of disability, the Applicant says the VRAB cannot ignore or set aside this same evidence in the absence of contradictory evidence or a negative finding as to its credibility (Re Hornby, [1993] F.C.J. No. 431 (T.D.); King v. Canada (Veterans Review and Appeal Board), [1997] F.C.J. No. 1517 (T.D.); Moar v. Canada (Attorney General), [2001] F.C.J. No. 1555 (T.D.); Rivard v. Canada (Attorney General), [2001] F.C.J. No. 1072 (T.D.); Mackay v. Canada (Attorney General), [1997] F.C.J. No. 495 (T.D.)).
[41] If the evidence is uncontradicted and is considered credible, the VRAB must accept it. This point was confirmed in Wood, by Mackay. J. at para. 28:
The Board may reject the applicant's evidence when it has before it contradictory medical evidence. However, while there may be an absence of evidence in the form of definitive medical documentation about the injury claimed, where there is no contradictory evidence and the Board does not accept the Applicant's evidence without explanation of that, it commits an error that goes to jurisdiction ...A decision of the Board that errs in the exercise of its jurisdiction, is unreasonable and warrants intervention by the Court. The standard of patent unreasonableness, is not apt if the error concerns the exercise of the Board's jurisdiction.
[42] If the VRAB found the evidence of Dr. Petit to be lacking in credibility, it should have said so and given its reasons. In this case, the VRAB made no such finding other than to say that it had no evidence that the Applicant's knee injury had been anything but normal. By failing to make such a finding with reasons, the Applicant says that the Decision was made in excess of jurisdiction and ought to be set aside.
[43] In its reconsideration Decision of May 23, 2003, the VRAB referred to and relied upon the report of Dr. Smallman, dated April 30, 1987, in which he stated that the Applicant had difficulties in the training career course and that he "has had reasonable result thus far." In confirming the Decision and denying the Applicant full entitlement to a disability pension, the VRAB relied on that part of Dr. Smallman's report and on the fact that there was no evidence in the file of any complaint by the Applicant regarding this injury between the accident in 1985 and the 1990 injury.
[44] The Applicant says that the VRAB failed to fully consider Dr. Smallman's report of April 30, 1987. In that report, Dr. Smallman comments on the Applicant's progress following "primary repair of his anterior cruciate ligament," namely the Applicant's surgery of December 1985 when he says that he "has had a reasonable result thus far." However, Dr. Smallman goes on to state that the Applicant is not fully rehabilitated and should be assigned a temporary medical category.
[45] The Applicant says that, to the extent that Dr. Smallman's report recommended assigning a temporary medical category to the Applicant in order to "get himself back to optimal physical condition," it is consistent with that of Dr. Petit and supports the Applicant's claim for a full disability pension.
[46] The Applicant points out that Dr. Petit's report is the only medical evidence that was before the VRAB that related to the issue of the causal link between his two injuries and his disability. There is no second medical opinion contradicting Dr. Petit's opinion and nor did the VRAB make any finding as to the credibility of Dr. Petit's evidence. In the absence of an adverse credibility finding, the VRAB should have accepted Dr. Petit's evidence. Its failure to do so is a jurisdictional error. The VRAB failed to exercise its duty to consider or reject evidence in light of its credibility and reasonableness (Moar v. Canada (Attorney General), [1995] F.C.J. No. 1555 (T.D.); Wood v. Canada (Attorney General), [2001] F.C.J. No. 52 (T.D.); Cundell v. Canada (Attorney General), [2000] F.C.J. No. 38 (T.D.); Brychka v. Canada (Attorney General), [1998] F.C.J. No. 124 (T.D.); Weare v. Canada (Attorney General), [1998] F.C.J. No. 1145 (T.D.)).
[47] The issue in this case involves medical matters. The Appeal Board Act empowers the VRAB to obtain independent medical opinions relating to any matter before it. Accordingly, the VRAB should not be afforded the deference usually given to tribunals which, because of their particular nature, have special expertise. The VRAB in this case did not seek any independent medical opinion on the issue before it (Moar, supra; Mackay, supra; Brychka, supra; Veterans Review and Appeal Board Act, supra, s. 38).
[48] The Applicant says that the VRAB did not analyse the prior decision nor the basis of Dr. Petit's opinion, and it did not state that Dr. Petit's opinion was not credible or reasonable. Dr. Petit is clear on the link between the first and second injuries to the Applicant's right knee and his disability.
[49] Hence, the Applicant submits that the VRAB committed a jurisdictional error and acted contrary to ss. 3 and 39 of the Appeal Board Act when it failed to draw from the evidence every reasonable inference in his favour (Mackay,supra).
The Board's Decision is Patently Unreasonable
[50] The Applicant also argues that the VRAB erred in law by basing its Decision on a patently unreasonable finding, namely that the Applicant was not entitled to a full disability pension.
[51] In light of the evidence submitted by the Applicant and the statutory directions to the VRAB, it was not reasonable for the VRAB to conclude that the Applicant had not established that he was entitled to a full pension for his disability. In denying the Applicant a full pension, the VRAB did not draw every reasonable inference from the evidence in favour of the Applicant, did not accept as true, credible and trustworthy evidence produced by the Applicant and, in weighing the evidence, did not resolve any doubt in favour of the Applicant.
[52] If a veteran suffers from a disability resulting from an injury or disease that arose out of, or was directly connected with, military service in peace time, a pension may be granted. Furthermore, if the initial injury or disease did not result in a disability, but rather resulted in a condition which then led to a disability, a pension may still be granted (MacDonald).
[53] In this case, the Applicant sustained two injuries to his right knee within a period of 5 years. The Applicant's evidence demonstrated that at least 2 years after his first injury he was not fully rehabilitated. He was assigned to regular field exercises in spite of the fact that Dr. Smallman had recommended that he be "protected from a field posting," assigned a temporary category and "allowed to train for several months up to a year in order to get him back to optimal physical condition."
[54] The VRAB concluded that it had no evidence indicating that the rehabilitation of the Applicant's injury had been anything but normal. But the Applicant says that the VRAB did have evidence of the fact that his medical restrictions had not been complied with as well as the evidence of Dr. Petit which concluded that the Applicant's knee was predisposed to re-injury as a result of the less than optimal rehabilitation. Despite this evidence, the VRAB concluded, on the basis of an absence of evidence, that the Applicant's rehabilitation was normal. The Applicant submits that this conclusion was patently unreasonable.
[55] The VRAB found that the Applicant was entitled to an aggravation award for his first injury. The Applicant submits that an aggravation award, as contemplated by the Pension Act, relates to a pre-existing injury that was not service related and is aggravated through military service. In this case, the VRAB found that the Applicant's initial injury aggravated an injury which occurred subsequently. The VRAB relied specifically on the subsequent injury as the basis for withholding two fifths of the Applicant's entitlement to a full disability pension for his right knee. The Applicant submits that, in the absence of any evidence on the record to support a conclusion of aggravation of a non-service related pre-existing injury, the VRAB's Decision is patently unreasonable (Kozak v. Canada (Attorney General), [2002] F.C.J. No. 220 (T.D.)).
[56] The Applicant points out that, under the Pension Act, once a veteran is found to have suffered a disability, he/she can apply to have the assessment of a disability pension reviewed in the event that it has worsened. In such assessments, the VRAB does not withhold any entitlement if the reason for which the disability has worsened is not related to military service (King; King v. Canada (Veterans Review and Appeal Board), [2001] F.C.J. No. 850 (T.D.)).
[57] The Applicant further submits that when multiple conditions have overlapping effects, consideration must be given to ss. 21(5) of the Pension Act, which provides for additional pension benefits where an applicant suffers an additional disability that is in whole or in part a consequence of the pensionable injury or disease.
Reconsideration
[58] While the VRAB does not have to make an explicit written finding on each element that leads to its ultimate conclusion, in the context of a reconsideration proceeding the VRAB has a duty to consider and weigh the evidence and to draw every reasonable inference in the Applicant's favour when new and credible evidence is presented (MacDonald).
[59] The impugned Decision was a reconsideration of a previous VRAB decision. Under ss. 32(1) of the Appeal Board Act, the VRAB may reconsider an earlier decision on two broad grounds, namely: (i) on application for new evidence; or (ii) on application or on its own motion for errors in fact or law. While there is no definition of new evidence in the Appeal Board Act, s. 39 does establish general principles for how the VRAB is to dispose of evidence. In effect, s. 39 requires that, when new and credible evidence is presented during a reconsideration proceeding, the VRAB has a duty to consider and weigh the evidence in the Applicant's favour (Mackay).
[60] The Applicant contends that the VRAB failed to properly apply the test for reconsideration of an earlier decision. Section 32 of the Appeal Board Act describes the reconsideration process. In this case, the VRAB simply disregarded the new evidence and confirmed the prior decision without explicitly citing an absence of errors in fact or law in its earlier decision. The VRAB appears to have concluded that, contrary to the factors set out in s. 32 of the Appeal Board Act, it could not review the earlier decision because the new evidence did not change or outweigh the medical evidence already considered. The Applicant submits that, in so concluding, the VRAB committed an error in law because it based its exercise of discretion to reconsider on an irrelevant consideration. In order for the VRAB to properly exercise its statutory mandate under s. 32, it must look to potential errors of fact or law in the earlier decision under reconsideration and examine its merits (Mackay; Dalton v. Criminal lnjuries Compensation Board (1982), 36 O.R. (2d) 394 at 397 (Ontario High Court Justice Div. Court.)).
[61] Besides the jurisdictional and errors of law referenced above, the Applicant submits that the VRAB's application of an improper test under s. 32 of the Appeal Board Act is sufficient to warrant judicial review of the Decision.
Respondent
A Synopsis of the Evidence
[62] The Respondent says that this application turns on a narrow compass of the evidence. The Applicant led evidence from Dr. Petit to the effect that there was a "direct relation between" the first incident and the second. Against this, there was also a report before the VRAB from Dr. Smallman, the Applicant's treating orthopedic surgeon, from April 1987, in which Dr. Smallman said, in relation to the primary repair of the Applicant's anterior cruciate ligament that "He has had a reasonable result thus far." There was also a later report of Dr. Smallman dated October 1, 1987, that said "This man has had an excellent result and is fully fit. He can be given a category of G202 and returned to all duties. I do not need to see him again unless he has problems." Also, in a report after his second knee injury in 1990, Dr. Marshall stated that the Applicant "had done well until 3 days prior to admission when he fell and developed some right knee pain." There is also the Operation Record of April 10, 1990, which described the surgery necessary after the second injury to the knee. This record indicated that the additional injury had provoked a tear of the medial meniscus.
[63] In view of this and other material, the VRAB concluded that, notwithstanding Dr. Petit's thesis that there was a direct relation between the first injury and the second injury because there was a lack of optimal rehabilitation of the Applicant's knee, there was no proof that the knee's rehabilitation was anything other than normal.
[64] The Respondent says that the VRAB had before it material that allowed it to make the following findings of fact:
The first injury to the knee was a tear to the anterior cruciate ligament, which criss-crosses the knee and holds the pieces together. That tear was repaired by an operation on 31 December 1985;
The Applicant was discharged, with a full leg cast. The cast was removed on 6 February 1986, and he then had a knee hing (sic) brace. The wound was well-healed and the suture removed;
Dr. Smallman reported on 30 April 1987 (about 16 months after the first injury), "He has had a reasonable result thus far." Dr. Smallman ordered that the Applicant be given a temporary category of G3T6 04T6 to allow him to train for several months, even up to a year in order to get himself back into optimal physical condition;
On June 3, 1987, Dr. Jawahir recommended that the Applicant be put on G304 (for six months). G3 held the requirement to seek medical care, but not necessarily a physician's services. G4 consisted of light duties, with no severe or prolonged stress;
Despite these medical restrictions, in August 1987 the Applicant continued to participate in full field exercises, without any accommodation for the medical restrictions;
The Applicant saw Dr. Smallman on 23 September 1986, who recommended that he not participate in the Junior Leader's Course until spring. Notwithstanding this, however, when Dr. Smallman saw the Applicant on 1 October 1987, Dr. Smallman reported that "This man has had an excellent result and is fully fit. He can be given a category of G202 and returned to all duties. I do not need to see him again unless he has problems";
Dr. Marshall stated that the Applicant "had done well until 3 days prior to admission when he fell and developed some right knee pain";
The evidence as to the cause of the Applicant falling to the ground was contradictory;
The second injury to the knee was a tear to the same anterior cruciate ligament, PLUS a fresh tear to the medial miniscus right around to the extreme posterior horn, which is a fleshy pad between the knee-bone, thus complicating the knee symptomatology and the degree of disability even further;
The Applicant injured his left shoulder in a skiing accident in April 1995;
Based on a history that Dr. Michel Petit took from the Applicant, the Applicant led evidence from Dr. Petit to the effect that there was a "direct relation between" the first injury and the second injury.
[65] In view of this, the VRAB concluded that, notwithstanding Dr. Petit's opinion, the evidence showed that, by the time of the second injury in 1990, the recovery of the knee from the injury in 1985 had been virtually complete.
[66] Granting the Applicant the benefit of any doubt, however, the VRAB found on appeal that the first and service-related injury could be considered responsible for a major portion, or three-fifths, of the overall disability, withholding two-fifths for that portion of the disability considered to have arisen from the non-service related injury.
The First Knee Injury, December 1985
[67] The first injury occurred as a result of a skiing accident on December 29, 1985. The Applicant was operated on for a tear to his anterior cruciate ligament, which was almost completely detached from its femoral origin. An arthrotomy was performed antero medially. The medial collateral ligament was detached at its distal insertion. The bone, here, was roughened and the ligament was allowed to heal in place. Drill holes were placed along the line of the anterior cruciate through the lateral femoral condyle out of the top laterally. A small skin incision was made to isolate the drill holes.
[68] The Applicant was discharged with a full leg cast. The cast was removed on February 6, 1986, and he then had a knee hinge brace. The wound was well-healed and the suture removed. He saw Dr. Smallman on September 23, 1986, who recommended that he not participate in the Junior Leader's Course until the spring.
[69] By April 30, 1987, Dr. Smallman saw the Applicant as a follow-up for primary repair of his ligament and reported as follows:
He has had a reasonable result thus far. As far as findings at this time, he lack [sic] a few degrees of extension, but he flexes fully. The knee is stable in extension. It opens less than 5 º at 30 º of flexion. This is not Pivot Shift.
He had some problems at the end of his career course in Jan to Feb to Mar. These were at the end of the course and mostly were over-use related. He is not yet fully rehabilitated and I think that in order to protect him from a field posting, we should give him a temporary category G3T604T6 and allow him to train for the next several months even up to the year in order to get himself back to optimal physical condition.
[70] On June 3, 1987, Dr. Jawahir reported that the Applicant had had knee problems from January to March due to overuse of the knee and suggested that he might need up to one year to strengthen the knee again for fitness. He recommended that the Applicant be put on G304 (for six months). G3 held the requirement to seek medical care, but not necessarily a physician's services. G4 consisted of light duties, with no severe or prolonged stress.
[71] Then, on October 1, 1987, Dr. Smallman reported on the Applicant as follows:
This man is seen in follow-up for his primary repair anterior cruciate ligament that was augmented by semi tendonosis.
He really has a stable knee with Lachman's of 0.5 centimetres. No pivot shift. He opens up postero-medially at 30 º of flexion. There is no affusion. This man has had an excellent result and is fully fit. He can be given a category of G202 and be returned to all duties. I do not need to see him again unless he has problems.
The Second Knee Injury, April 1990
[72] The Respondent says there is nothing in the record, other than the Applicant's own statements, to suggest that his knee injury bothered him between October 1987 and April 1990, when he injured his knee for the second time. On the contrary, Dr. Marshall stated that the Applicant "had done well until 3 days prior to admission when he fell and developed some right knee pain."
[73] On Ap