ACCESSING JUSTICE (Part 1 of 4) Pension Appeals Board Denies Minister’s Request for Independent Psychiatric Examination for CPP Claimant with Fibromyalgia It is generally understood by people with Fibromyalgia and Chronic Fatigue Syndrome and all claimants who apply for Canada Pension Plan Disability Pensions that the Minister has a very broad discretion to compel claimants to attend for Independent Medical Examinations as required by the Minister.  The CPP legislation and regulations are very broad in this regard granting the Minister a very wide discretion to require claimants to attend for Independent Medical examinations.  That said, a recent Pension Appeals Board ruling suggests that the Minister’s discretion is not unlimited with respect to compelling claimants to attend IME’s.  In the case of The Minister of Human Resources Development Canada v. Pamela Dubowec (2000), the Chairman of the Pension Appeals Board agreed with our submission on behalf of Ms. Dubowec that to order such an independent psychiatric examination at this time would be unfair to the Applicant, Pamela Dubowec.  As such, the application by the Ministry for a further medical examination was denied.  The circumstances giving rise to this case are as follows: Ms. Dubowec applied for a Canada Pension Plan Disability Pension in December, 1995.  Her application was denied by the Minister.  After appealing to a Review Tribunal, Ms. Dubowec was granted a disability pension in July, 1998.  At this time, the Minister appealed the decision of the Review Tribunal to the Pension Appeals Board claiming that Ms. Dubowec did not meet the definition of disability under the Act.  Prior to the hearing before the Review Tribunal, Ms. Dubowec had undergone an IME with the Minister’s chosen specialist, an Internist.  Ms. Dubowec had in fact seen this same internist on two (2) occasions prior to the Review Tribunal hearing.  At no time prior to the Review Tribunal hearing or in the course of adjudicating her claim did the Minister request a psychiatric assessment.  Only after a Review Tribunal granted Ms. Dubowec’s application for a CPP disability pension did the Minister seek to obtain an independent psychiatric assessment of Ms. Dubowec. Ms. Dubowec has Fibromyalgia with primary symptoms of chronic pain and fatigue.  While she has experienced depression periodically on account of her chronic illness, she is not clinically depressed.  As such, the Minister’s request for a psychiatric assessment is based on the Minister’s mis-characterization of Fibromyalgia as a psychiatric disorder rather than a chronic physical disability. Prior to the Review Tribunal hearing, Ms. Dubowec had submitted medical reports from her family physician as well as from psychiatrists and sleep experts Dr. Harvey Moldofsky and Adam Blackman.  As such, the Minister was aware of previous psychiatric assessments undergone by Ms. Dubowec prior to the Review Tribunal hearing.  Despite this knowledge and despite the IME to which Ms. Dubowec was subjected by the Minister, the Minister made no effort to request a psychiatric assessment of Ms. Dubowec in order to assess her condition, or to adduce evidence before the Minister’s application for a psychiatric assessment, coming as it does after the decision of the Review Tribunal, is in effect an attempt to obtain new evidence which the Minister may adduce at the appeal. We submitted and the Chair of the Board agreed that the Minister had ample opportunity to request an independent psychiatric examination prior to the hearing before the Review Tribunal but did not do so.  By the exercise of due diligence, such an examination could have been held and such new evidence obtained.  We submitted and the Chair of the Board agreed that to order such an independent psychiatric examination at this time would be unfair to Ms. Dubowec. The ruling by the Pension Appeals Board demonstrates that the Minister’s exercise of discretion to compel claimants to attend independent medical examinations must be exercised fairly, in a timely way, and in non-discriminatory fashion, consistent with the principles of fairness, natural justice and equality under the Charter of Rights and Freedoms. At this time, the Minister has appealed to the Federal Court of Appeal for a review of the decision of the Chairman of Pension Appeals Board.  This hearing is scheduled to take place toward the end of February, 2002.  The Minister will be arguing that the broad language in the Canada Pension Plan legislation and regulations enables it to compel an independent psychiatric examination.  It will be our position that the decision of the Pension Appeals Board Chair was reasonable and lawful having regard to the timing of the examinations to which Ms. Dubowec has already been subjected, the marginal relevance of the evidence sought by the Minister, the onus upon Ms. Dubowec to prove her disability before the Pension Appeals Board and the options available to the Minister to have an independent expert review all medical documents on file to assist her to determine Ms. Dubowec’s medical condition and psychiatric state.  Moreover, it is our position that the Pension Appeals Board Chair interpreted the Act and regulations in a manner consistent with the principles of natural justice, fairness and Ms. Dubowec’s charter equality guarantee under Section 15(1) of the Charter of Rights and Freedoms. While each case must be looked at individually, this ruling suggests that it is not appropriate in every case for the Minister to compel claimants to attend at IME’s.  Consequently, claimants should be mindful of the circumstances under which IME’s are sought, the timing of the exam, the relevance of the information sought and the fairness of the request.  Advise of physicians and counsel should be sought before submitting to such assessments. Note on Author:  Hugh R. Scher is a Toronto lawyer who practices civil litigation, labor, employment and human rights law with a focus on the rights of persons with disabilities.  He serves as counsel to the National ME/FM Action Network, the Fibromyalgia Society of Ontario, trade unions and several persons with CFS and Fibromyalgia.  Mr. Scher is also Chair of the Human Rights Committee of the Council of Canadians with Disabilities, Canada’s largest disability rights advocacy organization. Scher & De Angelis LLP Barristers & Solicitors Suite 210, 69 Bloor Street East Toronto, Ontario, Canada, M4W 1A9 Telephone (416) 515-9686 Facsimile   (416) 969-1815 Email:  hscher@interlog.com Web:   www.interlog.com/~scherde

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