Federal Court agrees with veteran pension applicant that it was unreasonable for the pension appeal panel to consider his supporting physician’s opinion linking his injury to his armed forces services to be speculative and thus not credible. Panel’s decision was set aside and returned to a differently constituted panel for redetermination.

19. March 2019 0

Administrative law – Decisions reviewed – Veterans Review and Appeal Board – Pension Appeals Board – Disability – Eligibility – Judicial review – Appeals – Evidence – Standard of review – Reasonableness

Crummey v. Canada (Attorney General), [2019] F.C.J. No. 54, 2019 FC 73, Federal Court (Halifax, Nova Scotia), January 18, 2019, R.F. Southcott J.

The applicant, who had served in the Canadian Armed Forces, applied to Veterans Affairs Canada for a pension based on compression fractures to his spine. He argued that his back problems originated from an injury that occurred during service. VAC denied his application on the basis that his fractures did not arise out of, and were not directly attributable to, his service. The Entitlement Review Panel (ERP) upheld VAC’s decision finding there was insufficient evidence to support a relationship between the fractures and the applicant’s service. The applicant appealed to the Entitlement Appeal Panel (EAP) and submitted two doctors’ reports in support. Dr. D concluded the fractures were partially attributable to service-related factors, and Dr. S opined the fractures were probably service-related. The EAP noted Dr. D based his opinion on non-contemporaneous medical reports of service injuries and that Dr. S’s opinion was very speculative in nature and therefore not credible. The EAP concluded it had not been presented with any persuasive, credible medical evidence pinpointing the applicant’s condition to his time in the force and affirmed the ERP’s decision.

The applicant appealed to the Federal Court, arguing it was not reasonable for the EAP to determine that his doctors’ evidence was not credible. The Court agreed the EAP’s finding that Dr. S’s opinion was speculative and thus not credible was unreasonable. Dr. S’s opinion was sufficiently fundamental to the applicant’s appeal to EAP that its unreasonable finding and treatment of Dr. S’s opinion rendered the overall decision itself unreasonable. Therefore, the Court set aside the decision and returned the matter to a differently constituted panel of the EAP for redetermination.

This case was digested by Kara Hill, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Kara Hill at khill@harpergrey.com.

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