# 2015-172 - Medical Employment Limitation (MEL)

Case Summary

F&R Date: 2015–11–17

The grievor contested the Director Medical Policy (D Med Pol) decision to give her a permanent geographical (G) medical category with a Medical Employment Limitation (MEL) which rendered her unfit to continue in her occupation. She argued that she did not require a G3 category as her previous mental health issues were related to stress and bereavement which were isolated events. As redress, the grievor was asking that her medical category be changed to G2 as her wish is to continue on with her training.

The Surgeon General, who acted as the initial authority (IA), denied the grievance. More specifically, he explained that one of the conditions for a G2 category is that Canadian Armed Forces (CAF) members have no geographical limitations due to a medical condition. However, considering that the grievor seemed to have had ongoing adjustment difficulties and psychological issues over the past years, he found that there was a significant risk of recurrence in the future. As a result, he found that the decision to assign the permanent G3 category and the MEL was reasonable.

The Committee found that the manner in which the D Med Pol staff and the IA handled the evidence was insufficient in that the grievor's medical evidence was not properly considered. The Committee also found that there was simply no probing medical evidence to support D Med Pol's assessment which was rather based on a “usual” and “preventive” approach, as stated in the IA decision. On the contrary, the evidence revealed that there was no clinical reason why the grievor could not pursue normative expectations within the military. The Committee pointed out that the Federal Court confirmed in Bouchard v. Canada (Attorney General), 2014 FC 1231, that such a “usual” and “preventive” approach, which ignores a CAF member's medical evidence, is inadequate.

The Committee explained that the purpose of a MEL is to describe and communicate to the chain of command, as well as to administrative and employment authorities, a clear and concise medical opinion regarding any employment limitations and their effects on the CAF member's ability to perform their duties safely and effectively without jeopardizing the safety of others, or compromising unit effectiveness. Hence, assigning a MEL simply to ensure that a CAF member's medical screening is performed by someone in particular is neither appropriate nor reflective of the reason for which a MEL must be assigned. As a result, the Committee found that the MEL was not justified.

The Committee recommended that the MEL be removed from the grievor's medical file, that the grievor's medical file be reviewed and that an appropriate geographical factor be assigned.

CDS Decision Summary

CDS Decision Date: 2016–06–21

The FA agreed with the Committee's finding that the grievor was aggrieved and that the grievance be upheld. The FA did not agree with the Committee's assertion that it is the role of the physicians, the psychologists at CF H Svcs Gp, D Med Pol or the IA to explain how the grievor was unable to perform any of her military duties in her MOC. The FA agreed with all the Committee's findings that there is a gap in the explanation and reasons provided to justify the grievor's MELs, and that the Guidelines for the application of MELs was not properly follow: a physician did not diagnose the grievor with a mental disorder, nor that a mental disorder had a permanent impairment, and finally, the maximum psychological recovery has been attained since the grievor was stable for more than 6 months. The FA concurred with the Committee that there was simply no probing medical evidence to support D Med Pol's assessment which was rather based on a "usual" and "preventative" approach. Therefore, the FA agreed with the Committee's conclusion that the decision to impose an MEL to change the grievor's geographical factor was unreasonable. The FA agreed with the Committee's recommendations but one, finding premature to comply with its recommendation that the MEL be removed until D Med Pol revisits the file and provides an explanation and reasons for it. In fact, the FA tasked D Med Pol to reopen the grievor's case to do a de novo review, which was done, and as a result, her medical category has been changed to G2 O2. The FA then returned the grievor to her MOC.