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ACCESSING JUSTICE
(Part 2 of 4)

Overcoming the barriers to obtaining benefit entitlements under long-term disability insurance policies and the Canada Pension Plan

People with Fibromyalgia and Chronic Fatigue Syndrome experience consistent challenges trying to access entitlements to long-term disability benefits and Canada Pension Plan Disability Pensions. Equally challenging as the process of trying to obtain benefits can be working with medical practitioners and legal advisers to ensure that relevant evidence and the strongest case is put forward to support a claim for disability benefits. This brief article is written to assist individuals with Chronic Fatigue Syndrome or Fibromyalgia through the process of making and following through on applications for disability benefits
or pension. The paper is written as a guide and is in no way intended to cover each individual�s circumstance. Indeed, the primary message of this article is that there is no substitute for solid medical documentation and evidence and often for strong legal advocacy for individuals who enter the maze of long-term disability benefits. In this respect, the paper is written as a guide to individuals in working with their physicians and other health care providers as well as with legal advocates to pursue long-term disability benefit entitlements.

From a legal perspective, the most important aspect of a claim for long-term disability benefits is whether the claimant meets the requirements as set out by the applicable insurance policy or legislation relating to disability. Most long-term disability insurance policies will contain a definition which requires that the employee be disabled from performing the duties of their usual occupation for a period of up to two years. At this time, there is what is commonly referred to as a definition change date. This is when the definition of disability within the policy changes usually from disability from performing
the duties of one�s own occupation to performing the duties of any occupation for which one is qualified by reason of education, training and experience. There will be differences from policy to policy in terms of the definition of disability. In any case, it is this definition of disability that guides insurance companies in accepting or rejecting claims. As such, it is important that claimants, medical advisors and legal advocates be aware of the definition
of disability relevant to any particular claim. It is also important that medical evidence produced in support of a claim relates in some respect to the definition of disability within the policy.

In the Canada Pension Plan, eligibility requires that a person�s condition be severe and prolonged such that the person is unable to engage in any substantially gainful occupation by reason of their disability. It also requires that the disability is of an indefinite duration or likely to result in death.

The most significant difficulty experienced by claimants and their physicians is relating the disabling condition and the functional effects of the condition to an inability to work or to engage in the activities of daily living. Common among almost all long-term disability insurance policies and the Canada Pension Plan eligibility requirements for disability is that a person�s condition limit their ability to work either in the position they were working in before, or in any other position for which they are qualified. As such, the intent of medical evidence relating to a person�s disability in support of a claim for disability benefits must
do more than simply diagnose the condition and state the effects of the condition on the person. Medical evidence must also support and explain how the functional deficit caused by a diagnosed condition such as Chronic Fatigue Syndrome or Fibromyalgia affects a person�s ability to work in their own occupation or in any occupation. This link
necessarily requires an assessment of the duties of the employment position as well as an examination of the functional effects of a person�s condition. Moreover, functional deficit caused by a person�s disability must be supported and explained by objective medical evidence. Objective medical evidence is typically thought of as including x-rays, ct-scans, MRI scans, spec-scans and other such diagnostic medical test results.

As you are aware, many of these forms of objective medical evidence will not support a diagnosis of Chronic Fatigue Syndrome or Fibromyalgia, or will only support them in a
very minimal way. The most common evidence of Fibromyalgia and Chronic Fatigue Syndrome is obtained by way of examination of trigger-point sensitivity. This
rheumatalogical basis for Chronic Fatigue Syndrome and Fibromyalgia is often considered subjective by insurance companies, Ministry Representatives and Review Tribunals
administering the Canada Pension Plan. Despite the fact that this form of examination is recognized as a means of diagnosis of Chronic Fatigue Syndrome and Fibromyalgia by a number of different respected organizations, including the World Heath Organization, the American Centre for Disease Control and others, it is still commonly perceived as subjective evidence which may be indicative of Fibromyalgia and Chronic Fatigue Syndrome but not determinative of these conditions or the functional effects of these conditions on one�s ability to work.

There are a number of other diagnostic tools which are of assistance to some with Chronic Fatigue Syndrome and Fibromyalgia. These would include sleep studies evidencing sleep disturbances, neuropsychological and neurocognitive testing evidencing deficits in memory, concentration and cognitive abilities, as well as genetic testing for intracellular infections commonly associated with Chronic Fatigue Syndrome and Fibromyalgia.

While previous emphasis has been on the physical aspects of Chronic Fatigue Syndrome and Fibromyalgia, more recent medical attention is being paid to the neurological and immunological basis for these conditions. In this respect, various protocols for treatment have been established and various assessment techniques are being developed. It is important for claimants to discuss with their physicians the most appropriate and relevant
assessment techniques to treat their health as well as to demonstrate a basis of support for a diagnosis of Fibromyalgia and Chronic Fatigue Syndrome and for its functional effects on one�s ability to engage in any kind of work.

As readers will appreciate, some physicians are more familiar with these assessment techniques and treatment protocols than others. As such, individuals have a role to play in communicating with their physicians about new assessments and treatments which may be available. That said, emphasis should always be placed on pursuing means which are likely to assist in diagnosis and treatment and not simply for the purpose of substantiating a legal
case.

One of the most common hang-ups individuals have about pushing their way through the bureaucratic maze associated with long-term disability benefits is the quest to prove the diagnosis of Chronic Fatigue Syndrome or Fibromyalgia. This quest stems from an experience of people doubting and questioning the existence of these conditions, whether they are true disabilities or merely a psychological response and escape from the realities
of the world, in much the same way that Freud�s �hysteria� and anxiety disorders were characterized in the early 1950�s. The quest also stems from legal decisions which call into question the validity of these conditions and view them merely as psychological reactions and escapes from real life as well as court generated conditions to generate work for lawyers and doctors. This was the reasoning of the Alberta Court of the Queen�s Bench in the case of Mackie v. Wolfe. The legal landscape with respect to recognition of Fibromyalgia and Chronic Fatigue Syndrome as an organic disease changed with the decision of the Alberta Court of the Queen�s Bench in Baillie v. Crown Life (1998). Other decisions have also recognized the limiting effects of Fibromyalgia as a justification for court awards of damages.

As noted above, while diagnosis of the condition of Chronic Fatigue Syndrome and Fibromyalgia is important, it is rarely determinative of an individual�s entitlement to
long-term disability benefits under a policy of insurance or the Canada Pension Plan. Far more significant for this determination is the link between the functional effects of
disability on one�s ability to work and the objective medical evidence supporting the disabling condition and its link to functional deficits and employability.

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.