Can Fibromyalgia Be Disabling?
Often times disability insurance companies reject a disability insurance claim, citing the reason: “There is no objective medical evidence of your disability.” This is sometimes used at the onset of a claim, and sometimes used at the two year mark when the definition of disability changes from “own occupation” to “any occupation” (also known in the industry as the “definition change date”) Often it is used where the disability is “subjective” in nature, meaning it is based on what the patient tells the doctor, rather than on the doctor’s own observations of the illness. Fibromyalgia, also known as fibromyositis, or musculoskeletal pain syndrome, cannot be diagnosed with “objective” evidence, and the diagnosis is always made on what the patient’s symptoms are and on the patient’s symptoms over time.
Bayda Disability Law Firm
serving Alberta & Saskatchewan
Calgary Fibromyalgia Disability Claims Lawyer
Suite #9, 1915 – 32 Avenue NE
Calgary, Alberta, T2E 7C8
Tel: 403-670-0070
Fax: 403-670-0071
Toll free: 1-855-670-0070
Credibility and Fibromyalgia Claims
There are numerous court decisions in Canada, where the courts have awarded disability insurance benefits against an insurance company for conditions such as chronic muscle pain, fibromyalgia or chronic fatigue syndrome where, by definition, there are no objective findings. They can easily be found by a search at www.Canlii.org using the keywords – “total disability” and fibromyalgia.
Some disability policies may allow for this argument, but most don’t. A policy of insurance is a contract. And like any contract the parties are theoretically free to bargain and to put whatever terms they agree to in the policy. But most policies don’t require “objective evidence” of a disability. And courts have strictly interpreted this requirement against the insurance company.
For an insurance company to say that they are denying a fibromyalgia claim on the lack of objective medical evidence is against existing case law.
Unless there is a specific clause in the insurance policy that states that objective medical evidence is required, I believe a court will not require objective medical evidence in all cases. And in the few cases where objective evidence is required, is where the court had doubts about the credibility of the disability claimant.
Human Rights Legislation and Fibromyalgia Claims
Even if the disability insurance policy has a clause that requires objective medical evidence to approve a disability claim, there is a strong argument that the clause is contrary to the human rights legislation in Canad
a. The Supreme Court of Canada has indicated that it will not allow discrimination against a disability on the basis that it has no objective medical evidence. In the decision of Martin, 2000 NSCA 126 (CanLII) —2000-11-08, the Supreme Court of Canada said that you cannot discriminate against persons suffering from chronic pain on the basis that there are no objective medical findings.
The Supreme Court of Canada in the decision of Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 SCR 566 —1996-10-31 found that the insurance policy was contrary to s. 16(1) of The Saskatchewan Human Rights Code. In that case the insurance policy purported to limit benefits to persons with mental as opposed to physical disabilities. The Supreme Court of Canada agreed with the Saskatchewan Court of Appeal 1994 CanLII 4550 (SK CA) and found that the disability insurance policy was discriminatory contrary to the Human Rights legislation in force in Saskatchewan.
Fibromyalgia cases are usually resolved on the disability claimant’s credibility. They are often very stressful on the disability claimant because the disability insurance company will be scrutinizing their every move. They will send out a questionnaire to complete which will require the claimant to detail every facet of their activities of daily living. And often the disability insurance company will send a private investigator to take surveillance to see if the claimant was telling the truth when they filled in the form. Any discrepancy will be used to question the claimant’s credibility in court. The premise is that if the claimant lied on one small aspect of their life, they may have lied to their doctor. And since the diagnosis is based on what the claimant told his or her doctor, the insurance company will argue that the diagnosis may not be accurate. The moral of the story is that if there is any chance that the activities of daily living form can be read two ways, or is ambiguous, make the claimant has to make it clear what he is answering.
In a fibromyalgia disability claim, a judge can only assess fibromyalgia disability based on the claimant’s credibility. Keep your credibility in your fibromyalgia disability claim.
Bayda Disability Law Firm
serving Alberta & Saskatchewan
Calgary Fibromyalgia Disability Claims Lawyer
Suite #9, 1915 – 32 Avenue NE
Calgary, Alberta, T2E 7C8
Tel: 403-670-0070
Fax: 403-670-0071
Toll free: 1-855-670-0070
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