VETERANS |
Bradley v. Canada (Attorney General)
T-2137-99
2001 FCT 793, MacKay J.
13/7/01
19 pp.
Application for judicial review of decision by Veterans Review and Appeal Board (VRAB) applicant not entitled to pension in relation to injury resulting from incident while serving in Armed Forces--On July 14, 1990, applicant junior officer in training--While showering onboard HMCS Qu'Appelle, lost balance in shower, fell against bulkhead, hitting back, wrenching arm--During stay in hospital, applicant complained of muscle spasms in back, pain in right mid-lumbar region, with spinal tenderness--In March 1996, applicant applied for disability pension under Pension Act, suffering from cervical 5-6 Radiculopathy, due to accident in shower aboard ship in Vancouver in July 1990--Application rejected by Department of Veteran Affairs--Appeal to VRAB also rejected--Under Veterans Review and Appeal Board Act, s. 39, Board has duty to consider, weigh credible evidence in best interests of applicant--Applicant must prove injury arose out of, in connection with, military service--Must establish on balance of probabilities, with evidence considered in best light possible, disability service-related under Pension Act, s. 21(2)(a)--Standard of review regarding conclusions based on medical evidence patent unreasonableness--Court should not interfere unless impugned decision based on error of law, on erroneous finding of fact made in perverse, capricious manner, without regard to material before it--Board's decision, isolating activity in which applicant engaged at time of injury from circumstances of military service, unreasonable--On basis of evidence before Board, which reviewed applicant's entire medical record while in service, Board's decision could not be said to be patently unreasonable, apart from determination of implications of VRAB Act, s. 39 by Board--Only medical evidence before Board, concerning applicant's claimed disabling injury, that of Dr. Coady, supported by 1996 diagnosis suggested by Dr. Gross in 1996--Board might have sought additional medical evidence but did not do so--Board failed to apply s. 39 properly, despite statement it had sought to do so--Erred in law in failing to draw every reasonable inference in favour of applicant, to accept uncontradicted evidence that it considered to be credible in the circumstances--Application allowed--Pension Act, R.S.C., 1985, c. P-6, s. 21 (as am. by R.S.C., 1985 (1st Supp.), c. 16, s. 2; (3rd Supp.), c. 20, s. 28; S.C. 1990, c. 43, s. 8)--Veterans Review and Appeal Board Act, S.C. 1995, c. 18, s. 39.