By Richard Bogoroch
October 25, 2005
I. Introduction
Illnesses such as chronic fatigue, chronic pain and fibromyalgia present inherent difficulties in trying such cases due to several factors:
- widespread skepticism of the existence of these conditions within the medical community;
- onset of severe and disabling symptoms even following a relatively minor traumatic incident; and,
- the absence of “objective” physical findings to substantiate the plaintiff’s symptoms and resultant disability.
The challenge posed to plaintiff’s counsel is to develop the plaintiff’s case using highly qualified and experienced experts and to present the case in a manner which demonstrates powerfully and convincingly the plaintiff’s disability. To do so, plaintiff’s counsel must understand the nature of these conditions and marshall the evidence necessary to establish the legitimacy of the plaintiff’s condition. Further, counsel must be aware of the challenges to be faced and must be able to neutralize the impact of the defence experts and, ultimately, to persuade the trier of fact to award the plaintiff fair compensation for his or her losses.
Despite the inherent limitations in trying cases involving chronic fatigue, chronic pain and fibromyalgia, there have been recent judicial decisions that have improved the situation of employees suffering from such illnesses.
In Nova Scotia (Workers’ Compensation Board) v. Martin1, the Supreme Court held that the workers’ compensation scheme of Nova Scotia unjustly discriminated against injured workers suffering from chronic pain in that it excluded chronic pain from the application of the general compensation provisions. The Court held that the equality provisions of the Charter of Rights and Freedoms were infringed and, for this reason, held that the challenged provisions of the workers’ compensation scheme were of no force or effect.
Furthermore, a review of recent judicial decisions pertaining to chronic fatigue, chronic pain and fibromyalgia indicates that the courts in Canada are willing to recognise that such illnesses can be triggered by trauma arising in a variety of different settings, and that the illnesses can be triggered following relatively minor traumatic incidents. Canadian courts have held that, despite the lack of “objective” physical findings, such conditions can create entitlement to employment-related disability benefits, if the disability is supported by medical opinions. In Britt v. Zagjo Holdings Ltd.,2 the Court concluded that the plaintiff’s fibromyalgia condition was caused by the slip and fall trauma that the plaintiff suffered, as the linkage had been shown by doctors in “compelling and incontrovertible detail”.
Further, in Fidler v. Sun Life Assurance Co. of Canada,3 the Court recognised that the plaintiff’s acute kidney infection lead to chronic fatigue, thereby entitling the Plaintiff to long-term disability benefits. Also, in Swain v. Moore Estate,4 the Court held that the plaintiff’s chronic pain, post-traumatic stress syndrome and fibromyalgia were caused by the motor vehicle accident in which she was involved.
Notes:
*I am grateful for the assistance of my associates, Ms. Tripta Chandler and Ms. Christina Gural, in the preparation of this paper.
1Nova Scotia (Workers’ Compensation Board) v. Martin, [2002] S.C.R. 504.
2Britt v. Zagjo Holdings Ltd., [1996] O.J. No. 1014.
3Fidler v. Sun Life Assurance Co. of Canada (2004), 196 B.C.A.C. 130.
4Swain v. Moore Estate, [2000] O.J. No. 1628.
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