# 2012-031 - Medical Employment Limitation (MEL), Release - Medical

Case Summary

F&R Date: 2012–07–30

The grievor contested the decision to release him from the Canadian Forces (CF) on medical grounds and asked for a review of the medical expertise on which the decision was based. According to the grievor, none of the medical employment limitations (MELs) were valid. In his opinion, the decision of the Director Medical Policy (D Med Pol) to change his medical category was based on incomplete and inaccurate information; he contended that he had not been assessed by a medical officer and that, furthermore, the D Med Pol had rendered a decision without asking to see his medical file. He claimed that his state of health did not contravene CF policy, which dicates that a member is in violation of the principle of Universality of Service if he is required to take medication whose discontinuation would prevent him from functioning normally. He insisted that his condition did not absolutely demand that he take medication and pointed out that his physicians were clear on this point.

The grievor asked to be reintegrated into the CF with compensation and indicated that he retained his right to recourse for any future request for damages and interests.

The Chief Military Personnel, acting as Initial Authority (IA), denied the grievance. With regard to the MELs, the IA pointed out that setting standards was the purview of the D Med Pol, who did not discriminate against anyone regardless of their diagnosis. The IA noted that D Med Pol comes to a decision after reviewing the complete medical file of members and that the D Med Pol and his staff ensured that there were adequate grounds for their final diagnosis. In common with the D Med Pol, the IA concluded that the imposed MELs were in keeping with the diagnosis and the medication taken by the grievor.

The Board made it clear that its role was not to act in the place of medical experts but rather to determine whether the decision was reasonable and justified given the evidence on file. It was in this context that the Board reviewed the grievor's submission arguing that the imposed MELs did not reflect his actual state of health.

The Board noted that the Recruiting Centre staff, on receiving the grievor's application for transfer from the Primary Reserve to the Regular Force, sent a questionnaire to the grievor's psychiatrist on the evaluation and update and, more specifically, on whether the restrictions and limitations applied to the grievor and whether he had need of a follow-up and medication. The physician responded that the grievor had been symptomatic before receiving his diagnosis and treatment but that this hadn't caused any problems; the physician added that people like the grievor could, in extreme cases, stop treatment without complications. A few weeks later, the doctor at the Canadian Forces Leadership and Recruit School medical clinic recommended the following temporary MELs: G - the member requires medically directed services less frequently than every 6 months. Should medical care not be available, the member would not be at significant risk of complications. O – No limitations.

Although CF physicians had supported the professional advice of the grievor's civilian psychiatrist on the use of medication and the potential impact of an interruption, the proposed MELS were significantly modified after the case was analysed by D Med Pol staff. Owing to the nature of these changes, they led to the conclusion that the grievor was no longer fit to serve in the CF. According to the Board, the MELs imposed by D Med Pol staff indicating that the grievor "must take medication every day, failing which he may have a crisis associated with a chronic medical condition that requires the immediate services of a medical specialist”, was irreconcilable with the facts on file. The Board acknowledged the undisputed fact that the grievor's state of health might require the services of a specialist and the absolute need to take this into account; however, the seriousness of the consequences should be examined in detail and the MELs written with extreme care since subtle nuances may have a profound impact on a member's career.

According to the Board, the permanent MELs imposed on the grievor were incongruous with the medical opinions of the medical officer and the grievor's psychiatrist, who treated him for several years; moreover, absolutely no reasons were given to justify the major gap between the recommendations and the MELs. The Board concluded that, in the absence of a valid medical opinions that would support the MELs as drafted, there was no justification for this.

The Board also noted that a significant policy – ie, the philosophy of the CF concerning the retention of CF members with MELs – occurred in September 2008. Indeed, the (medical) risk matrix that came into effect at that time ensures that the following factors are taken into account: the established prognosis, the severity of the condition and the short term/long term effects. Military factors are also considered: employability within the MELS, fitness for deployment and the member's medical needs. This matrix was made effective on 14 October 2008 through CANFORGEN 187/08. The Board was of the view that since the decision to release the grievor was made on 15 January 2009 the grievor's situation should have undergone an assessment based on the risk matrix before his release was ordered.

The Board recommended that the Chief of the Defence Staff (CDS) uphold the grievance.

The Board recommended that the CDS declare the release decision null and void so that the grievor could be declared as never having been released.

The Board recommended that the CDS order a new review of the grievor's file aimed at assessing his fitness to serve in the CF, based on the applicable standards. During this administrative review (AR MEL), the authorities concerned should ensure that particular attention is paid to the grievor's medical records to ensure that if he is accorded any MELs these are supported by, and accurately represent, his state of health. The authorities should also ensure that this AR MEL is carried out in consideration of the (medical) risk matrix.

CDS Decision Summary

CDS Decision Date: 2013–11–28

The CDS does not agree with the conclusions and recommendations of the Board, including the recommendation to uphold the grievance. The CDS determined that the grievor had not been wronged. On the issue of procedural fairness, the CDS felt that the commander, who served as the approving authority under DAOD 5019-2 (Administrative Review), had disclosed to the grievor all the documents and information in his possession and that the grievor had been given the opportunity to submit his arguments. Since the grievor was disputing the Medical Employment Limitations, a second opinion was obtained to permit a re-evaluation of all new information by the Director of Medical Policy. Subsequently, the CDS was of the opinion that the approving authority, by checking the appropriate box and signing his name at the bottom of the complete file, had accepted the recommendations as his own and made his decision based on those recommendations.