VETERANS |
Smith v. Canada (Attorney General)
T-1043-99
2001 FCT 857, MacKay J.
7/8/01
16 pp.
Judicial review of denial by Veterans Review and Appeal Board (VRAB) of appeal concerning applicant's claim to pension benefits for disability from colitis allegedly arising as result of medication taken for osteoarthritis of lumbar spine, condition for which received pension--Applicant member of RCMP from 1973 until 1997--In 1990, 1992 injured back while on duty--Injuries resulted in permanent partial disability condition of osteoarthritis of lumbar spine for which received pension since retirement--Treatment involving prolonged use of non-steroidal anti-inflammatory medication--Applicant experiencing bowel disorder symptoms after commencing use of medications--Minister denying claim for further disability pension--Entitlement Review Panel dismissing appeal despite new evidence including family physician's report stating biopsies done by specialist indicating acute, chronic inflammation suggestive of IBD, which would be considered disability by anyone afflicted with disorder, and also stating opinion symptoms caused by prolonged use of non-steroidal medications for osteoarthritis--On appeal to VRAB applicant filed later report of gasteroenterologist stating biopsies suggestive of early IBD--Earlier report dated prior to retirement indicating symptoms likely caused by use of non-steroidal medications prescribed for, taken by applicant to control pain resulting from osteoarthritis--Despite absence of contradictory evidence, VRAB determining neither definitive medical diagnosis nor medical opinion causally connecting applicant's symptoms to use of non-steroidal drugs; no link to pensioned disability--Pension Act, s. 5(3) and Veterans Review and Appeal Board Act (VRABA), s. 39 requiring Minister, Board to draw from all evidence every reasonable inference in favour of applicant; accept any uncontradicted, credible evidence presented by applicant; resolve in favour of applicant any doubt in weighing evidence--VRABA, s. 3 requiring liberal construction, interpretation of Act--Application allowed--Requiring "definitive medical opinion" raising threshold of burden of proof beyond that of balance of probabilities recognized as appropriate in Cundell v. Canada (Attorney General) (2000), 180 F.T.R. 193 (F.C.T.D.) and failed to consider all of evidence before Board in light most favourable to applicant in accordance with legislation--Board citing opinion of its medical officer that applicant would not continue to suffer from bowel disease symptoms unless continued to take medications required to control osteoarthritis pain as reason for justifying why IBD symptoms not constituting pensionable disability--Unreasonable as Board essentially requiring applicant to choose which disability would prefer to suffer from--In inferring this cause-and-effect relationship, Board's own medical officer drawing causal connection between continued use of non-steroidal medications and resulting IBD symptoms--Burden of proof on applicant to establish, on balance of probabilities and with Board viewing evidence in most favourable light, that claimed condition pensionable and results from previously pensioned condition in accordance with Pension Act, s. 21(5)(b)--Board's finding medical evidence inconclusive because not providing "definitive medical opinion" of diagnosis of IBD improper application of statutory requirements to view evidence in light most favourable to applicant as required by both Pension Act, VRABA--Medical opinions provided present only one possible diagnosis with only one plausible cause--No contradictory medical evidence before Board--In asking applicant to provide "definitive medical opinion", Board holding him to highest possible standard--Board erred as decision unreasonable--Pension Act, R.S.C., 1985, c. P-6, s. 5(3) (as am. by S.C. 1995, c. 18, s. 47)--Veterans Review and Appeal Board Act, S.C. 1995, s. 18, ss. 3, 39.