Associate Lawyer, Share Lawyers, Lawyers
There are many challenges faced by an individual who is struck with a condition that finds him or her unable to work. It is often an already overwhelming experience in attempting to access the medical system to obtain effective diagnosis, treatment and rehabilitation. Yet, the person's efforts are sometimes forced to focus elsewhere; without an income, and when the disability benefits on which he or she had expected to rely are terminated or denied, it is the legal system to which the individual is forced to turn.
In these cases, it is especially frustrating for the disabled individual when the insurance company has "determined" that because of "lack of objective evidence", the person is said not to meet the test of disability in his or her insurance policy.
In many cases, the so called "invisible disabilities", such as those arising from chronic pain, depression or anxiety, appear to be poorly understood or recognized by insurance companies and defence lawyers alike. It often seems this way given the disproportionate number of disability claims that are denied due to these types of disabilities, in comparison with claims based on "objective" disabilities (i.e., disabilities that can be corroborated by medical imaging, blood tests or a physical examination).
Fortunately, over time, Canadian Courts appear to have become more informed about and sympathetic towards individuals who are disabled due to "subjective" complaints. In fact, the Supreme Court of Canada has commented on the very real experience of pain that gives rise to disability. In particular, in Martin v. Nova Scotia, 2003 CarswellNS 360 (S.C.C.), the Supreme Court of Canada determined that a provision of the Nova Scotia Workers' Compensation Act violated the Charter insofar as it prevented chronic pain sufferers from obtaining workers' compensation benefits. In its reasons, the Supreme Court of Canada made the following comments about chronic pain as a disabling condition:
Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers' compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real.
In the judicial environment in which chronic pain and other subjective conditions are becoming better understood and "legitimized", the individual sometimes only needs the right tools with which to work within the legal arena in order to access his or her disability benefits. Having supportive treating physicians who appreciate one's disabling condition and its impact on one's day-to-day life, remaining compliant with and pro-active about rehabilitation and treatment, requesting modified duties that one would be able to perform on the job (wherever possible), and retaining a lawyer who understands the nature of one's medical condition and has experience litigating these insurance claims are but a few of the tools that one should use in asserting one's rights to disability benefits.
So, in jumping through the sometimes additional hoops with which a person is presented in "invisible disability" cases, there is hope that the disabled individual will find legal justice... so that he or she can ultimately entirely focus on his or her medical healing.
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