David TRAINOR Applicant v. ATTORNEY GENERAL OF CANADA, 2011 FC 484

Federal Court Cour fédérale Date: 20110420 Docket: T-1266-10 Citation: 2011 FC 484 Ottawa, Ontario , April 20, 2011 PRESENT: The Honourable Justice Johanne Gauthier BETWEEN: David TRAINOR Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] Mr.

Trainor seeks the judicial review of the decision of the Veteran’s Review and Appeal Board, Entitlement Appeal Panel [1] (Appeal Panel) confirming the decision awarding him a two-fifths pension in respect of his psoriasis on the basis that this condition was only partially related to his service in the Regular Force. [ 2 ] Despite the able submissions of his counsel and the Court’s sympathy for his plight, the Court cannot agree that the decision under review contains any reviewable error.

Factual background [2] [ 3 ] The applicant, who is now 29 years old, entered the Canadian Forces on June 21, 2001. [3] The report of his family physician who filled out the Request for Release of Medical Information dated February 22, 2001 indicates that he had “eczema [on] both hands and feet” since 1996, which was diagnosed as diphydrotic eczema and was treated with Betnovate 0.1% cream (a topical steroid-based cream). The prognosis was “stable, ongoing dermatitis”. [ 4 ] In June 2001, while attending boot camp, Mr.

Trainor was required to use a substance referred to simply as CLP (cleaner, lubricant and preservative) to clean his firearm and those of his colleagues. It appears that he was exposed for two or three hours to this product, and did not have an opportunity to wash his hands immediately. He says that his hands started itching, burning and became red as a result. [4] There is no evidence that the applicant was further exposed to CLP at any time thereafter.

[ 5 ] There is also no documentary evidence that the applicant immediately sought medical care in respect of his condition. The earliest medical record on file is dated July 10, 2002, when Mr. Trainor went to a clinic in St-Jean. The notations indicate that for a week Mr. Trainor had been suffering from intense eczema on hands and feet (free translation). [5] [ 6 ] A report dated July 2003 [6] states that Mr. Trainor was “recently” experiencing considerable stress because of various serious family issues that need not be detailed here.

This stress was to such an extent that beginning in October 2003 he was granted leave without pay. A letter dated November 13, 2003 contains a full description of the impact of this stress on his studies. It is to be noted that when he enrolled in the Canadian Forces, Mr. Trainor was attending the University of Waterloo where he was an outstanding student who had won scholarships, [7] with very high academic results in mathematics.

Because of the stress he was experiencing and his mental and physical condition after 2001, when he completed his studies in 2004, he was still three courses short of obtaining his degree. [ 7 ] The first dermatologist’s report on file is dated September 24, 2004 (Certified Record at page 23) where Mr. Trainor was diagnosed with psoriasis vulgaris. [ 8 ] Despite this diagnosis, later medical entries still refer to the condition on his hands and feet as eczema. For example, on September 23, 2004, in an Emergency Report, it is written that Mr. Trainor consulted [8] for ++ eczema on both hands.

The medical notations indicate that at that time, he had recently run out of cream, also that he appeared to respond well to immunosuppressants (or immune modulators). The doctor put some restrictions on his exposure, stating that his hands should not be exposed to chemicals/solvents or submersed in water. [ 9 ] At the beginning of November 2004, he was referred to an internist, Dr. Cook. [9] This specialist generally refers to the fact that Mr.

Trainor had several medical concerns (which are better described in his first psychiatric assessment report of November 30, 2004, [10] as hypertension, fracture of the metacarpal, [11] psoriasis previously described as eczema and recently changed to psoriasis). During the consultation with Dr. Cook, the applicant reported that his hand and foot condition had been “easily controlled” with topical steroid cream until approximately 15 months ago (meaning summer of 2003). Dr.

Cook noted that he did not think that his condition was in fact psoriasis but rather a disabling eczema which was persistent and severe and was believed to “be secondary to or at least exacerbated by stress”. [ 10 ] As of the end of October 2004, Mr. Trainor was seen regularly by a psychiatrist (Dr. Ewing). In his first psychiatric assessment in November 2004, there is no mention of any stress factor related to his work in the military. [ 11 ] It appears that Mr. Trainor was referred by Dr. Cook to Dr.

Bertoia (an orthopaedic surgeon who was asked to assess his condition in respect of his metacarpal as well as his psoriatic arthritis). [12] With respect to his skin condition, Dr. Bertoia simply notes that Mr. Trainor had significant psoriasis “which is well controlled to date although he tells me that it is often cracked and bleeding. He is under the care of a dermatologist”. Dr. Bertoia suggested that he be assessed by a rheumatologist. This was done in April 2005 when he saw Dr.

Amba who concluded that there was no evidence of psoriatic arthritis (reason for consultation) whereas there was evidence of active psoriasis on his palms and toes. [13] [ 12 ] It appears from a medical report dated April 25, 2005 that he still had difficult family issues. [14] However, at the end of 2004 and in 2005 it becomes clear that the applicant was also stressed about his career in the Canadian Forces because of his condition and the restrictions it imposed. He did not feel that the limitations set out by his doctor in December 2004 were properly considered by his superiors.

He filed several grievances in that respect. [ 13 ] Those work-related stress factors are expressly referred to in the documentation on file starting on or about December 17, 2004 (Certified Record at p. 36) through the date of his release in January 2007 [15] at the age of 25. [16] [ 14 ] In 2005, Mr. Trainor changed dermatologists and started consulting with Dr. Fiala who, on November 4, 2005, reports that she suspects his “stress at work is contributing to his problem”. [17] It is not clear if Dr.

Fiala was apprised of his past family-related issues. [ 15 ] On March 31, 2006, the applicant applied for disability benefits. In the said application, he indicates that he had been exposed to CLP in the course of the summer of 2001, sought medical treatment at St-Jean [18] and that from this point on it started getting worse and worse. He notes that the psoriasis on his hands developed “concurrently” to his feet and that stress makes his psoriasis worse. He

also indicated that the stress relating to his work aggravated his medical condition causing severe changes to the psoriasis on his feet which remains today. [ 16 ] The ERT-Material Data Sheet on file confirms that CLP might cause moderate redness and that “prolonged and/or repeated skin contact” could result in irritation and dermatitis.

A detailed study dealing with the “Characterization of the Skin Penetration of a Hydrocarbon-Based Weapons Maintenance Oil” published in September 2006 indicates that there is no published report of dermal irritation, contact sensitization, or systemic effects in “routine users”. [19] This would, according to the authors, indicate that if such occupational health problems developed at all, they would be limited to sensitive individuals. The

article also suggests that the material could induce allergic contact dermatitis if the material binds to cells situated within the suprabasilar layer of the epidermis. [ 17 ] As was argued before the Appeal Panel and before this Court, psoriasis is not fully understood and various environmental factors are important and may trigger the disease. Still, the Advocate acting on behalf of Mr. Trainor did file evidence about the etiology and impact of psoriasis. She produced a fact sheet and various extracts of medical publications.

This evidence indicates that in approximately one-third of the patients with psoriasis, trauma to the skin resulted in the development of psoriatic lesions at the site of the trauma. Although it is clear that such physical trauma must cause epidermal damage, the nature of the injury appears to be immaterial.

It could even be a horsefly bite, a tattoo, or excoriations from horseback riding. [20] [ 18 ] It also expressly mentions that “there is no doubt that, in patients with the genetic predisposition for psoriasis, stress may precipitate psoriasis and aggravate existing disease.” [ 19 ] On the basis of this evidence, the Entitlement Review Board (first level of appeal – hereinafter referred to as “the Board”) after noting that Mr.

Trainor was seeking “an aggravation award of three-fifths to four-fifths pension entitlement as this was directly related to his military service” found that the evidence presented, even considering the statutory obligation to resolve any doubt in the weighing of the evidence in favour of the application as per sections 3 and 39 of the Veterans Review and Appeal Board Act , SC 1995, c 18 (the Act), only supported an award of a moderate aggravation of a two-fifths pension entitlement for the claimed condition of psoriasis.

In effect, the Board found that it was necessary to withhold a portion of the pension entitlement because this condition was pre- existing in nature prior to his joining the Canadian Forces. [ 20 ] Mr. Trainor appealed this decision (by written submissions) to the Appeal Panel and an additional medical questionnaire dated November 5, 2009 was before this decision maker. In the said document, Dr. Middlestadt [21] confirms the diagnosis of psoriasis and the severity of the applicant’s condition.

He also deals with the serious impact his condition has on his lifestyle given that it is always visible to the general public and that even something as basic as a handshake is socially upsetting both for the applicant and for others. He notes that Mr. Trainor is severely restricted in all activities involving the use of his hands, including simple tasks such as tying his shoes, opening a jar, etc. He also confirms what Mr.

Trainor stated in his representations before this Court that his condition is much more painful than it looks given the large number of nerve endings in the palmar/plantar skin. [ 21 ] In its decision under the

section entitled “Evidence and Argument”, the Appeal Panel refers to the fact that the Advocate’s main argument was that the evidence was sufficient to allow at least an additional two-fifths pension entitlement because the applicant’s exposure to CLP triggered skin trauma initiating the development of psoriasis and work-related stress was also a significant factor. The Appeal Panel then mentions the evidence indicating the appellant’s condition prior to enrolment.

It acknowledges the evidence in respect of the exposure to CLP and the fact that after being initially diagnosed with eczema he was later diagnosed by a dermatologist with psoriasis vulgaris and arthritis. It mentions that a July 2003 medical attendance report indicates that the appellant was under considerable stress related to a non-service situation. It also refers to the clinical report of Dr. Cook which indicates that Mr. Trainor’s condition could be secondary to or perhaps exacerbated by stress. Finally, it acknowledges that the report of Dr.

Fiala dated November 4, 2005 mentions that work-related stress might be a contributing problem and the fact that in his earlier testimony the applicant attributed much of his stress to service factors. [22] [ 22 ] In the

section entitled “Analysis and Reasons”, after confirming that

i) it has thoroughly reviewed all the evidence placed before it; ii) the award of two-fifths was made in recognition of a causal linkage between the contact with CLP and also various service- related stressors; and iii) the previous decision maker had withheld part of the pension entitlement due to the “pre-existing” nature [23] of the condition, the Appeal Panel concluded that the evidence established that the appellant was “predisposed” to the condition with which he was ultimately diagnosed and that there was some evidence that service stressors played a role in the exacerbation of his condition. [ 23 ] In its view, the role of the CLP was more problematic given that there was clearly no evidence establishing contact with the appellant’s feet.

Although it recognized that the cleaning product undoubtedly temporarily aggravated the condition of Mr. Trainor’s hands , it questioned how it contributed in any way to a permanent aggravation of his condition, especially that there was no evidence of contact with his feet. That said, it concluded that the service-related factors were fully recognized by the two-fifths pension entitlement currently established.

Analysis [ 24 ] The applicant raises two issues. First, that there was absolutely no evidence before the Appeal Panel to support its conclusion that the appellant was “predisposed” to the condition with which he was ultimately diagnosed.

He notes that this Court recognized that the Appeal Panel has no particular expertise in medical matters [24] and that there was no direct evidence that eczema per se predisposed the applicant to psoriasis. [ 25 ] Second, the applicant argues that the Appeal Panel failed to provide adequate reasons for its decision. [ 26 ] At the hearing, the applicant confirmed that although in his Memorandum he alluded to the fact that the Appeal Panel should have sought additional medical evidence, this argument was not to be pursued.

He also confirmed that his attack in this proceeding on the Panel’s evaluation of the level of pension (two-fifths) was entirely based on the lack of evidence supporting the conclusion that he was “predisposed” to his condition.

Finally, the applicant confirmed that he was not asking this Court to issue specific directions to the Appeal Panel, only requesting to have the decision quashed with costs and referred back to the Appeal Panel. [ 27 ] It is worth noting that in the decision, the issue is framed as “whether the evidence supports a higher level of pension entitlement than that previously provided.” [ 28 ] It is well established that the issue of whether or not a medical condition arose out of or was directly connected to military service is a question of mixed fact and law reviewable on a reasonableness standard ( Goldsworthy v Canada (AG), 2008 FC 380 , at paragraphs 10-14 ; Wannamaker v Canada (AG), 2007 FCA 126 , at paragraph 12 ; Boisvert c Canada (PG), 2009 FC 735 , at paragraphs 33-36 ).

This is also the standard to be applied with regards to whether or not the decision maker properly applied

section 39 of the Act in its analysis ( Wannamaker at paragraph 13 ). The weighing and

interpretation of either conflicting or inconclusive medical evidence is also reviewable on a reasonableness standard (pre- Dunsmuir , it was reviewable on the standard of patent unreasonableness: Nolan v.

Canada (AG) 2005 FC 1305 , at paragraph 10 ). [ 29 ] This means that the Court cannot simply substitute its own view of the evidence, but rather must determine whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law ( Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47 ). [ 30 ] With respect to the inadequacy of the reasons, even if the applicant’s counsel presented the issue as one of procedural fairness subject to the standard of correctness, it is not clear to this Court if in fact Mr.

Trainor is simply challenging the decision on the basis that it does not meet the “transparency and intelligibility” requirements of a reasonable decision ( Vancouver International Airport Authority v Public Service Alliance of Canada, 2010 FCA 158 at paragraph 16 ; Newfoundland and Labrador (Treasury Board) v Newfoundland and Labrador Nurses’ Union , 2010 NLCA 13 at paragraph 12 ). [ 31 ] That said, however one describes the issue, my answer would be the same. [ 32 ] The relevant legislative provisions of the Act , more particularly sections 3 , 38(1) and (2) , 39 (a), (

b) and (c), as well as subsection 21(9) [25] of the Pension Act , RSC 1985, c P-6, are attached in Appendix A. [ 33 ] Subsection 21(2.1) of the Pension Act [26] provides that 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. 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.

a) Reasonableness of the decision [ 34 ] It is apparent from the decision that the Appeal Panel did not accept Mr. Trainor’s position that service-related stress was a significant contributing factor. It simply notes that there is “some evidence” that it played a role in the exacerbation of his condition and that this is fully recognized in the level of entitlement granted. [ 35 ] It also viewed the alleged relationship between the CLP and the psoriasis as tenuous. [ 36 ] When one considers the context of the decision which includes the evidentiary record before the decision maker ( Vancouver International Airport Authority , above, at paragraph 17 ), one notes that:

i) the time elapsed between the one time event involving the CLP (June 2001) and the first medical record of an aggravation (July 2002); ii) Mr. Trainor’s condition was aggravated concurrently on his hands and feet, whereas there was no contact between CLP and his feet; iii) the diagnosis of psoriasis was made well before the first recorded mention of stressful events related to work referred to in Dr. Fiala’s report and in Mr. Trainor’s testimony; all lead away from the conclusion that a significant portion of Mr.

Trainor’s condition relates to his service in the Canadian Forces. [ 37 ] Contrary to what was submitted by Mr. Trainor’s counsel to the Appeal Panel (see the bottom of page 4 of the Submissions: Certified Record at p. 152), Dr. Fiala’s reference to stress-related issues as contributing to his difficulties was not the only time a relationship between his skin disease and stress was made. In effect, Dr. Cook, shortly after Mr. Trainor was diagnosed with psoriasis, clearly indicates that his skin condition was either onset or exacerbated by stress.

At that time, there was no evidence of work-related stressors and there was ample evidence of family- and study-related issues. [ 38 ] It is worth mentioning that Mr.

Trainor had argued [27] before the Appeal Panel that: We submit that a major to severe aggravation award represents a reasonable award in light of the evidence of congenital skin sensitivity, but the absence of any indication of a pre-enlistment condition [28] . (my emphasis) [ 39 ] Considering the argument presented and the particular way the reasons are set out, it appears that the Appeal Panel used the word “predisposed” as opposed to “pre-existing” to signal that this was not a matter to which subsection 21(9) of the Pension Act applies, as suggested by Mr.

Trainor to this Court. [ 40 ] The Court is satisfied that there was evidence supporting such a finding. In fact, the evidence on file supports a finding that Mr. Trainor was predisposed to psoriasis in two ways. First, if as proposed by Mr. Trainor his reaction to CLP was a trigger or at least an aggravating factor, it was due to his particular sensitivity and skin condition in June 2001. Second, one could reasonably conclude from the evidence dealing with the etiology of psoriasis that in order for work-related stress to be a relevant factor, Mr.

Trainor had to be part of the group described in the documentation as “genetically predisposed”. The fact that Mr. Trainor argues that his condition is caused by work-related stressors implies, as was noted by counsel, that one has a congenital condition. The Court is satisfied that to reach such a conclusion was not a matter of speculation, but rather one of reasonable inference that was open to the decision maker. [ 41 ] The applicant insisted at the hearing that there is no evidence of a potential link between eczema and psoriasis. The Court cannot agree.

Although eczema is not referred to by name in the list of trauma described at page 105 of the Certified Record, neither is skin irritation from CLP or other chemical products. Thus, inasmuch that the documentary evidence relied upon can support, Mr. Trainor’s view that the trauma from his contact with CLP could have triggered or aggravated his psoriasis, it can also support the fact that his eczema could also have been the trauma that triggered or aggravated his condition. Both appear to equally fit the description of the type of injury deemed sufficient to cause psoriatic lesions.

In fact, it is quite clear that had it not been for the application of sections 3 and 39 of the Act , Mr. Trainor’s claim may well have failed as it did before the very first decision-maker that he appealed to, or he would have obtained less than 50% of what he was seeking. [ 42 ] In the circumstances of this case, the Court is satisfied that the conclusion reached was one of the potential outcomes that was justified in respect of the facts and the law.

b) Adequacy of the reasons [ 43 ] Contrary to the applicant’s argument before this Court, the decision must be looked at in its entirety. One cannot restrict one’s evaluation to the

section entitled “Analysis / Reasons” on page 4. [ 44 ] The Appeal Panel clearly understood the issue before it, it took into consideration all the environmental factors for which there was some evidence on file. It did not need to refer specifically to all the evidence nor did it need to explain in any more detail the weight attributed to each piece. [ 45 ] Like many similar decisions, it could have been better written, but decisions are not to be judged on their style, nor by the pound. [ 46 ] The Court cannot agree with the applicant that in this case the reasons are too brief to be intelligible.

The Court had no difficulty judicially reviewing this decision. The applicant had no real difficulty presenting his case in respect of the unreasonableness of the decision (as opposed to the inadequacy of the reasons). [ 47 ] The Court cannot agree with the applicant’s suggestion that the Appeal Panel simply rubber-stamped the previous Board’s finding. On the contrary, as mentioned, it expressed its own view that the link with the CLP was tenuous and that surely this was an issue where the previous decision maker applied

section 39 . It made its own evaluation of the situation and, in the end, simply found that there was no basis to grant a higher percentage of entitlement. [ 48 ] There is no breach of procedural fairness here, nor is the decision unreasonable because it is unintelligible or not transparent. As mentioned by the defendant, the only real issue here is that Mr. Trainor disagrees or is disappointed with the weight attributed by the Panel to what is referred to as the service-related factors. [ 49 ] In light of the foregoing, the application for judicial review is dismissed. JUDGMENT THIS COURT ADJUDGES that the application is dismissed. “Johanne Gauthier” Judge APPENDIX A

Veterans Review and Appeal Board Act , SC 1995, c 18 3. The provisions of this Act and of any other Act of Parliament or of any regulations made under this or any other Act of Parliament conferring or imposing jurisdiction, powers, duties or functions on the Board shall be liberally construed and interpreted to the end that the recognized obligation of the people and Government of Canada to those who have served their country so well and to their dependants may be fulfilled. 3.

Les dispositions de la présente loi et de toute autre loi fédérale, ainsi que de leurs règlements, qui établissent la compétence du Tribunal ou lui confèrent des pouvoirs et fonctions doivent s’interpréter de façon large, compte tenu des obligations que le peuple et le gouvernement du Canada reconnaissent avoir à l’égard de ceux qui ont si bien servi leur pays et des personnes à leur charge. 38.

(1) The Board may obtain independent medical advice for the purposes of any proceeding under this Act and may require an applicant or appellant to undergo any medical examination that the Board may direct.

(2) Before accepting as evidence any medical advice or report on an examination obtained pursuant to subsection (1), the Board shall notify the applicant or appellant of its intention to do so and give them an opportunity to present argument on the issue. 38.

(1) Pour toute demande de révision ou tout appel interjeté devant lui, le Tribunal peut requérir l’avis d’un expert médical indépendant et soumettre le demandeur ou l’appelant à des examens médicaux spécifiques.

(2) Avant de recevoir en preuve l’avis ou les rapports d’examens obtenus en vertu du paragraphe (1), il informe le demandeur ou l’appelant, selon le cas, de son intention et lui accorde la possibilité de faire valoir ses arguments.

39. In all proceedings under this Act , the Board shall (

a) draw from all the circumstances of the case and all the evidence presented to it every reasonable inference in favour of the applicant or appellant; (

b) accept any uncontradicted evidence presented to it by the applicant or appellant that it considers to be credible in the circumstances; and (

c) resolve in favour of the applicant or appellant any doubt, in the weighing of evidence, as to whether the applicant or appellant has established a case. 39. Le Tribunal applique, à l’égard du demandeur ou de l’appelant, les règles suivantes en matière de preuve :

a) il tire des circonstances et des éléments de preuve qui lui sont présentés les conclusions les plus favorables possible à celui-ci;

b) il accepte tout élément de preuve non contredit que lui présente celui-ci et qui lui semble vraisemblable en l’occurrence;

c) il tranche en sa faveur toute incertitude quant au bien-fondé de la demande. Pension Act, RSC 1985, c P-6 21.

(9) Subject to subsection (10), where a disability or disabling condition of a member of the forces in respect of which the member has applied for an award was not obvious at the time he or she became a member and was not recorded on medical examination prior to enlistment, that member shall be presumed to have been in the medical condition found on his or her enlistment medical examination unless there is (

a) recorded evidence that the disability or disabling condition was diagnosed within three months after the enlistment of the member; or (

b) medical evidence that establishes beyond a reasonable doubt that the disability or disabling condition existed prior to the enlistment of the member. 21.

(9) Sous réserve du paragraphe (10), lorsqu’une invalidité ou une affection entraînant incapacité d’un membre des forces pour laquelle il a demandé l’attribution d’une compensation n’était pas évidente au moment où il est devenu membre des forces et n’a pas été consignée lors d’un examen médical avant l’enrôlement, l’état de santé de ce membre est présumé avoir été celui qui a été constaté lors de l’examen médical, sauf dans les cas suivants :

a) il a été consigné une preuve que l’invalidité ou l’affection entraînant incapacité a été diagnostiquée dans les trois mois qui ont suivi son enrôlement;

b) il est établi par une preuve médicale, hors de tout doute raisonnable, que l’invalidité ou l’affection entraînant incapacité existait avant son enrôlement. FEDERAL COURT

SOLICITORS OF RECORD DOCKET: T-1266-10 STYLE OF CAUSE: David TRAINOR v. ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 12, 2011 REASONS FOR JUDGMENT: GAUTHIER J. DATED: April 20, 2011 APPEARANCES : Yehuda Levinson FOR THE APPLICANT Ayesha Laldin FOR THE RESPONDENT SOLICITORS OF RECORD : Levinson & Associates Toronto, Ontario FOR THE APPLICANT Myles J. Kirvan Toronto, Ontario FOR THE RESPONDENT