eBULLETIN - April 2014

Contents

See our Case Summaries List or Systemic Recommendations for further information about recent and past MGERC cases.

Highlights

The grievor, a Regular Force member, was released from the Canadian Armed Forces under item 5(f) - Unsuitable for Further Service, article 15.01, Queen’s Regulations and Orders for the Canadian Forces. The grievor was released after a series of remedial measures failed to resolve his behavioral issues which, he argued, were caused by his medical condition. The grievor asked that his release item be changed to 3(b) – Medical.

The grievor submitted a grievance after being refused reimbursement of costs relating to in vitro fertilization (IVF) treatments for herself and intracytoplasmic sperm injection (ICSI) treatments for her service spouse. The grievor argued that the Canadian Armed Forces Spectrum of Care is too restrictive and does not align with provincial health care offerings. She requested full payment for both the IVF and ICSI treatments.

The grievor submitted a grievance arguing that he could have been promoted much sooner had he not been incorrectly and prematurely assigned a permanent medical category and restrictive employment limitations earlier in his career. As remedy, he requested that his promotion be backdated to the date he believes he was entitled to be promoted to a higher rank.

Case Summaries

Impact of Medical Condition on Release Item

Committee Findings and Recommendations

The grievor, a Regular Force member, was released from the Canadian Armed Forces (CAF) under item 5(f) - Unsuitable for Further Service - of the table to article 15.01 of the Queen’s Regulations and Orders for the Canadian Forces (QR&O). The grievor was released after a series of remedial measures failed to resolve his behavioral issues which, he argued, were caused by his medical condition. The grievor asked that his release item be changed to 3(b) – Medical.

The issue before the Committee was whether the grievor was released under the most appropriate release item in accordance with the table to article 15.01 of the QR&O.

The decision maker in this matter, the Acting/Director General Military Careers (A/DGMC), acknowledged that the grievor did have medical issues that could warrant a medical release but concluded that the more appropriate release item remained 5(f). The A/DGMC noted that the grievor had also been deemed “disabled” which entitled him to receive the same immediate, indexed pension received by personnel medically released from the CAF under item 3(b).

The Committee first examined the administrative review (AR) process leading to the release decision and found that there was a breach of procedural fairness because the decision maker had not provided proper reasons for authorizing the compulsory release as was required by the applicable policy found under Defence Administrative Order and Directive 5019-2 – Administrative Review. As a result of this breach, the Committee proceeded with a de novo review of the release item.

Using the policy guidance provided in the 4 July 2011 letter promulgated by the Chief of the Defence Staff (CDS) entitled “Consideration for Attribution of a release Item”, the Committee examined and compared the grievor’s medical and performance histories. The Committee found no evidence of the grievor’s behavioral problems prior to his exposure to an operational training accident at sea in which some CAF members were injured. The Committee also observed that the grievor’s reported performance had been progressing normally on a yearly basis until the year of the training incident when it clearly declined. Upon leaving the sea environment, the performance again improved for a period of three years. However, upon posting back to a ship, the grievor’s performance, as well as his behaviour, rapidly declined to unacceptable levels.

The Committee concluded that, on a balance of probabilities, the grievor’s unacceptable behaviour while serving onboard ship was related to his now documented medical condition.

The Committee recommended that the CDS grant the grievance and order that the grievor’s release item be changed from 5(f) to 3(b).

The Committee also recommended that the CDS direct the release decision maker to provide proper reasons for authorizing compulsory release in accordance with the policy.

Final Authority Decision

The CDS did not agree with the Committee's findings and recommendations. The general consensus was that the grievor suffered from depression and had difficulty coping with stressful situations. The CDS found no evidence that the grievor was not responsible or aware of his unacceptable conduct and discipline issues which led to his release. Accordingly, the CDS was of the view that the decision to release the grievor under item 5(f) was appropriate.


Costs Related to in vitro Fertilization Treatments

Committee Findings and Recommendations

The grievor submitted a grievance after being refused reimbursement of costs relating to in vitro fertilization (IVF) treatments for herself and intracytoplasmic sperm injection (ICSI) treatments for her service spouse. The grievor pointed out that, in 2010, the Province of Quebec expanded provincial health care coverage to include the payment of infertility treatments to a maximum of three cycles, no matter what the cause of the infertility. The grievor argued that the Canadian Armed Forces (CAF) Spectrum of Care (SoC) is too restrictive and does not align with provincial health care offerings. She requested full payment of the IVF and ICSI treatments she and her husband underwent in 2011.

The initial authority (IA) denied the grievance indicating that the issue of infertility treatments was discussed at great length at the April 2011 SoC Review Committee (RC) meeting and it was decided there would be no change to the current coverage. The IA noted that the SoC only covers IVF for those female CAF members with proven bilateral fallopian tube obstruction (not the grievor's condition) and ICSI for male CAF members with sperm disorders not due to previous elective vasectomy (the husband's case).

As a preliminary issue, the Committee pointed out that in accordance with Queen's Regulations and Orders for the Canadian Forces (QR&O), a grievance may not be submitted jointly with any other CAF member. Consequently, the Committee limited its review to the grievor's entitlement to IVF.

The Committee reviewed the current CAF SoC and found that since the grievor's condition is not that which is identified or funded by the SoC guidelines, the grievor was not eligible for the reimbursement of her two IVF treatments. However, since the basis of the grievance was the grievor's entitlement to medical care, the Committee was of the view that the analysis of her grievance could not escape the review of the April 2011 SoC RC decision not to expand coverage for infertility treatments.

The Committee first recognized that in 1997, IVF was added to the SoC for CAF members with bilateral tube blockage for a maximum of three cycles. The Committee also noted that the stated intent of the SoC is to provide CAF members with a comprehensive health care system "comparable" to that guaranteed to other Canadians under the Canada Health Act. In order to determine whether the SoC RC decision not to expand coverage was reasonable, the Committee decided to examine whether, in fact, CAF members are receiving IVF treatments comparable overall to that received by Canadians under provincial health care plans.

Concerning IVF treatments from 1997 to August 2010, the Committee was satisfied that CAF members were not disentitled to health services that would otherwise have been available to them, merely because they had joined the CAF. In fact, during this period, the Committee noted that IVF coverage was not only comparable, it was identical to that of the Province of Ontario. This fact was also corroborated by the June 2008 SoC RC decision when determining whether ICSI would be included for male factor sub/infertility, or whether it would be prudent to de-list IVF for qualifying female CAF members.

However, the Committee could not reach the same conclusion relating to IVF coverage since August 2010. On the one hand, the Province of Quebec funds three cycles of IVF and/or ICSI for all couples with infertility problems regardless of cause. On the other hand, the SoC RC refused to change, amend or expand, even in a limited fashion, the IVF coverage that has been in existence since 1997. The Committee could not therefore conclude that CAF members are currently receiving IVF treatments comparable overall to that received by Canadians under provincial health care plans. In the Committee's opinion, on the issue of IVF, the SoC RC decision failed to meet the CAF written and public commitment of comparability; consequently, the Committee found that this decision was unreasonable in the circumstances.

The Committee also pointed out that QR&O subsection 34.07(7) - Entitlement to Medical Care, states that a member of the Reserve Force on Class A or B service whose need for medical care is not attributable to the performance of his duty and is not a result of his misconduct or imprudence is entitled, where the requirement arises, "to receive at public expense medical care in whole or in part which is not provided for under his provincial health care plan...". Consequently, a Class A or B reservist in need of medical care not related to CAF duty will first benefit from provincial health plan coverage, and second from CAF medical care. For all intent and purposes, in the Committee's opinion, this means that since August 2010, a reservist working in Quebec, dealing with an infertility issue, benefits from the Quebec provincial health care plan and could receive up to three cycles of IVF or ICSI funded treatments regardless of cause; a claim no other CAF member has. The Committee found this issue of concern as it is divisive in nature and expressed the view that by expanding the SoC to a comparable level or similar status, the CAF could resolve this issue and make the policy all inclusive.

The Committee recommended that the Chief of the Defence Staff (CDS) grant redress.

The Committee recommended that the CDS direct that the grievor be reimbursed for the costs she incurred after 18 April 2011, associated with IVF up to three treatments/cycles.

From a systemic perspective, the Committee recommended that the CDS direct that the SoC coverage for IVF and/or ICSI be expanded to include three cycles of treatment regardless of the infertility cause, effective 18 April 2011, the date the last SoC review took place and that the SoC be amended to reflect this new coverage.

Final Authority Decision

The CDS did not agree with the Committee's recommendation that redress be granted. The CDS adopted a different interpretation of the SoC general section which stated that the intent of the SoC is therefore to provide CAF members with a comprehensive health care system “comparable” to that guaranteed to other Canadians under the Canada Health Act. The CDS was of the view that in order to determine whether IVF for CAF members is comparable to what other Canadians receive, the comparable is not which group receives the best medical coverage, but which coverage is available for a majority of Canadians.


Impact of Medical Condition on Promotion

Committee Findings and Recommendations

The grievor was assigned a permanent medical category and restrictive medical employment limitations for a chronic medical problem. Following an Administrative Review of the medical limitations, he was retained temporarily in the Canadian Armed Forces (CAF) for a period of three years, and was then to be medically released. The grievor underwent successful medical treatment and his condition improved to the point where he was retained without restrictions and eventually promoted to a higher rank. Following his promotion, he submitted a grievance arguing that he could have been promoted much sooner had he not been incorrectly and prematurely assigned a permanent medical category and restrictive employment limitations. He contended that his steadily improving medical condition had been ignored by CAF medical staff and that he had been treated differently from other CAF members with the same medical problem. As remedy, he requested that his promotion be backdated to the date he believes he was entitled to be promoted to a higher rank.

Regarding the grievor's claim of unfair differential treatment, the Committee indicated that each situation is unique and the Committee was not in a position to determine whether the grievor was treated differently from other CAF members dealing with the same medical problem.

The Committee then reviewed the grievor's medical file and was satisfied that the grievor's condition had been closely monitored by CAF medical authorities, that the grievor's employment limitations were always appropriate to his condition, and that it was not possible to change them any sooner than was done.

Next, the Committee examined the timeliness of the promotion and found that the grievor could have been promoted sooner had he been medically fit. However, in accordance with the promotion policy found in Canadian Forces Administrative Order (CFAO) 49-4, it was not until after the new limitations were approved by the Director Medical Policy that the grievor's promotion could proceed, which it did. Nonetheless, the Committee noted that CFAO 49-4, paragraph 19, allows a promotion to be deferred for a CAF member otherwise eligible for promotion but assigned a temporary medical category. In this case, when the grievor began to improve, the CAF medical system changed his medical limitations and medical category to temporary status in recognition of the fact that he might continue to improve. Accordingly, the Committee observed that the grievor's situation met the conditions stipulated at paragraph 19, permitting his promotion to be antedated by up to 12 months from the date his restrictions were removed.

Consequently, the Committee recommended that the Chief of the Defence Staff (CDS) partially uphold the grievance. The Committee also recommended that the CDS direct the antedating of the grievor's promotion by the maximum of 12 months.

Final Authority Decision

The CDS agreed with the Committee's findings and recommendation that the grievance be partially upheld and that the grievor's promotion be antedated to the maximum of 12 months.


Statistics

Category of grievances received since 2012 as of April 1, 2014
Categories of grievances 2012 2013 2014
Financial 47% 27% 37%
General 36% 55% 49%
Release 11% 16% 6%
Harassment-Discrimination 5% 2% 8%
Distribution of the Findings and Recommendations (F&R) by category of grievance for the period between January 1, 2014 and April 1, 2014
MGERC F&R Financial                                       General                                                 Release                                  
Upheld 0 3 1
Partially Upheld 2 2 1
Denied 2 7 1
Chief of the Defence Staff (CDS) decisions received between January 1, 2014 and April 1, 2014
  CDS agrees with Committee's F&R CDS partially agrees with Committee's F&R CDS does not agree with Committee's F&R
  44% 18% 38%

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