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Proving Chronic Fatigue Syndrome in the Context of Long Term Disability and Motor Vehicle Accidents

What is Chronic Fatigue Syndrome?

Chronic Fatigue Syndrome (CFS), also known as Myalgic Encephalomyelitis, causes substantial disability in those affected by the condition. Individuals with CFS often experience consistent, debilitating, and medically unexplained fatigue. CFS has associated symptoms such as sleep disturbance, musculoskeletal pain, headaches, and cognitive issues such as impaired concentration, and memory.[1]

What are the Criteria for a Diagnosis of CFS?

To be diagnosed with CFS, an individual must experience:

  • Fatigue: characterized as significant, newly onset, continuous, unexplained, and results in a substantial reduction in activity level.
  • Post-Exertional Malaise and/or Fatigue: a loss of physical and mental stamina, or rapid muscular and cognitive fatigability, and/or pain and a tendency for other associated symptoms to worsen. There must be a pathologically slow recovery period of usually 24 hours or more.
  • Sleep Dysfunction: unrefreshed sleep, low sleep quantity, or rhythm disturbances.
  • Pain: primarily musculoskeletal pain, and headaches.
  • Neurological/Cognitive Manifestations: the individual must have two or more of the following impairments: confusion, impaired concentration and short-term memory consolidation, disorientation, difficulty with information processing, categorizing and word retrieval, and perception and sensory disturbances.
  • One symptom associated with two out of three of the following categories:
    1. Autonomic Manifestations;
    2. Neuroendocrine manifestations; and
    3. Immune manifestations.
  • Illness persistence for minimum six months.[2]

[3] The criteria for diagnosing CFS is extensive as CFS can only be diagnosed once alternative conditions are eliminated. While there are no laboratory or diagnostic tests which can diagnose CFS, testing may assist physicians in eliminating other conditions which may be causing fatigue.

Recent Developments in the Treatment of CFS

In 2019 a study was conducted with a view to determining the effects of exercise therapy in adults with CFS, compared with other intervention or control on CFS symptoms including fatigue, adverse outcomes, pain, physical functioning, quality of life, mood disorders, sleep, self-perceived changes in overall health, health service resources use and dropout.[4]

The study concluded that exercise therapy likely has a positive effect on the fatigue levels in adults diagnosed with CFS, when compared with passive treatment. This research is encouraging, as it broadens potential treatment options for individuals with CFS beyond passive treatments such as cognitive behavioural therapy, adaptive pacing, or pharmaceutical intervention.[5] This information is critical for individuals making informed decisions about treatment options for CFS.

CFS and Long Term Disabilities

It can be difficult for individuals with CFS to perform the essential tasks of their employment. As a result, many people with CFS are unable to work or study.[6] The prognosis for recovery varies greatly depending on medical history; however, a key hallmark of CFS is that the symptoms persist for a minimum of six months. Due to the longevity of the condition, many people suffering from CFS may need to utilize their Long Term Disability benefits (“LTD Benefits”).

Employees bear the burden of proving to their insurers that they are entitled to LTD Benefits. As CFS is an invisible disability, undetected by medical testing, it can be difficult for individuals to illustrate the extent of their impairments, which may result in a denial of LTD Benefits.

We work closely with our clients to dispute a denial of LTD Benefits. We will review your benefits entitlements, and also ensure that our clients’ medical records are as comprehensive as possible, including all clinical notes reflecting meetings with physicians, subjective reports of impairments and restrictions, and historic and ongoing treatment. Together, we will work to gather the evidence necessary to succeed in a claim for LTD Benefits, including expert opinions.

CFS and Motor Vehicle Accidents

CFS can also be difficult to prove in the context of claims arising from injuries and impairments sustained in motor vehicle accidents. However, the courts have long accepted the existence of CFS as an impairment which is compensable through general damages (non-monetary compensation for pain, suffering, and loss of amenity).[7]

Studies have concluded that the emergence of CFS may be associated with preceding stressful events, particularly identifying that CFS has occurred after the physical trauma of a motor vehicle accident.[8],[9] Individuals who suffer from CFS may, in addition to being unable to complete the essential tasks of their employment, lose enjoyment in their social, and family life.

We have represented many clients who have suffered from CFS, and as a result, we have a well established, thorough methodology for handling these complex claims. We strive to ensure that our clients’ pre-accident history and post-accident health are clearly documented to demonstrate the onset of CFS. In addition, our experience with CFS claims has allowed us to develop a network of qualified experts on the condition.

[1] Maia Abbas, (2014) Employing Disability: Deconstructing Insufficient Protections for “Non-Mainstream” Disabilities. Western Journal of Legal Studies, 5:2 online: UWO J Leg Stud 1.

[2] Bruce Carruthers, Anil Kumar Jain, Kenny L. De Meirleir, et al (2003) Myalgic Encephalomyelitis/ Chronic Fatigue Syndrome. Journal of Chronic Fatigue Syndrome, 11:1, 7-115 at pages 11-12.

[3] Joseph Yancey and Sarah Thomas (2012) Chronic Fatigue Syndrome, Diagnosis and Treatment. American Family Physician, 88:8 741-746 at 742.

[4] Lillebeth Larun, Kjetil Bruberg, Jan Odgaard-Jensen, and Jonathan Price (2019) Exercise Therapy for Chronic Fatigue Syndrome. Cochrane Database of Systematic Reviews. 10: 1-130.

[5] Ibid.

[6] Carolina X Sandler and Andrew R Lloyd (2020) Chronic Fatigue Syndrome: Progress and Possibilities. Medical Journal of Australia. 212:9, 428-433 at page 429.

[7] Cugliari v White (1995), [1995] OJ No 4892 (QL), 24 OR (3d) 57.

[8] Kristine L. MacDonald, Michael T. Osterholm, Kathleen H. DeDell et al. (1996) A case-control study to assess possible triggers and cofactors in chronic fatigue syndrome. The American Journal of Medicine. 100:5, 548-554 at 551.

[9] Irving E. Salit (1997) Precipitating factors for the chronic fatigue syndrome. J. Psychiat. 31:1, 50-65 at page 64.

Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.

Our experience, commitment to excellence, and reputation have long been recognized.  Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada.  The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.

If you or your loved one has been injured in an accident or believes that you are a victim of malpractice or negligence, reach out to a personal injury or medical malpractice lawyer to understand if you too have a claim. Please contact any of our personal injury lawyers at Bogoroch & Associates LLP for a free consultation. 

Contact a personal injury lawyer near me by calling 1-866-599-1700 or visit our Contact page for all inquiries.

Proving Chronic Fatigue Syndrome in the Context of Long Term Disability and Motor Vehicle Accidents
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Proving Chronic Fatigue Syndrome in the Context of Long Term Disability and Motor Vehicle Accidents
Learn about Chronic Fatigue Syndrome in the context of Long Term Disability and Motor Vehicle Accidents in this latest blog post from Bogoroch & Associates LLP.
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