Proving Chronic Fatigue as a Disability

Chronic fatigue is a legitimate cause for disability in Canada. The problem is how do you prove that it prevents you from working? A disability claim is hard to prove when the symptoms which cause disability cannot be measured with a test. For instance, you may be disabled by chronic pain, mental health symptoms or fatigue. These claims are often called subjective claims because they depend on your own reporting of symptoms. This post focuses on long term disability claims where fatigue is the main symptom.

When you submit a claim for disability benefits, you need to describe your symptoms and why you are unable to work. You must also submit a physician’s statement supporting your application. The doctor will describe the treatment, diagnosis and investigations and why your condition  prevents you from working.

What Causes the Fatigue – The Diagnosis

In disability insurance, you will often hear “diagnosis doesn’t matter … ability to work is the issue”. This is true; however, when your disabling symptom is persistent fatigue, the insurer will look at what is causing the chronic fatigue. A common ongoing symptom following a heart attack is fatigue. Cancer treatment can leave you with overwhelming fatigue long after the treatment ends.

Chronic illnesses like multiple sclerosis, Parkinson’s disease and rheumatoid arthritis can cause disabling fatigue. Depression and sleep disorders can cause persistent exhaustion. With each of these conditions, the diagnosis may be clear and the issue will be can the doctor measure the level of fatigue and the extent to which the symptom prevents work related tasks.

Chronic fatigue syndrome, also known as myalgic encephalomyelitis, can cause disability from working. It is a unique diagnosis because there is no single test to establish the condition. The doctor will need to rule out other causes for fatigue such as an underactive thyroid or mental health issues which might be treated with medications. Fibromyalgia is another so-called “invisible disability” where it can be an uphill battle to obtain financial help in the form of disability benefits.

Disabling Symptoms of Chronic Fatigue

Extreme fatigue is more than the tiredness that everyone suffers from occasionally. It makes it hard to get up in the morning, go to work or carry on your normal activities of daily living. While you may feel an overwhelming urge to sleep, you may wake up finding you are unable to make it through the day.

People suffering from chronic fatigue often have trouble concentrating and focusing, very low energy and motivation, nervousness and irritability. Physical symptoms can include muscle pain and whole body tiredness.

How Chronic Fatigue Affects Daily Life and Work

Extreme exhaustion can impact your ability to work in many ways. It can cause you to make mistakes and forget details. You may take higher risks and make poor decisions. Other symptoms include a sense of deep brain fog and impact on overall mental fitness.

In some occupations, fatigue can cause you to be at a higher risk of being injured because you fall asleep while driving or operating machinery. In professions such as medicine, policing or transit operator, for example, you may put other people at risk if your ability to focus, reaction time and ability to handle stress are impact.

Chronic fatigue can impact your ability to maintain employment. It can also impact your ability to function at the end of the day in your homelife and family.

Case Studies – Fatigue as a Symptom

The Massage Therapist – Enzo

Enzo has a busy practice as a massage therapist. His occupation is physically demanding because he must stand while working and use his physical strength during treatments.

Enzo had COVID one year ago. He was very ill and was intubated and in intensive care for several weeks. Enzo recovered well and was able to return to work part-time. However, he cannot increase to more than 10 hours per week. If he works for longer than 10 hours, Enzo finds it too tiring to stand and that he lacks the strength in his hands to work effectively.

The insurance company schedules a functional abilities evaluation and terminates Enzo’s claim, citing the results of that testing which had concluded he has the strength and standing ability to perform his occupation as a massage therapist. The problem is how do they measure his fatigue.

The Cardiovascular Surgeon – Elisabeth

Elisabeth trained for years to become a cardiovascular surgeon. The surgeries she performs are lengthy, tiring and intense. Elisabeth is diagnosed with breast cancer and undergoes surgery, radiation and chemotherapy.

Although Elisabeth has completed her therapy, she is left with residual symptoms including lack of concentration and fatigue. Elisabeth attempts to return to work. She assists a colleague with a surgery to assess her ability to perform her occupation. She finds that she cannot maintain her focus throughout the procedure. After the surgery, she finds she is exhausted but how can she measure fatigue?

Elisabeth advises the insurer that her return to work was unsuccessful, and the insurer relies on her oncologist’s opinion that the treatment has been completed. Elisabeth knows she cannot perform her occupation without absolute confidence in her abilities. The insurer says there is no proof of the persistent fatigue which is causing her to be unable to work. The insurance company refuses to reinstate benefits.

The CEO – Fred

Fred is the CEO of a pharmaceutical company. He has a high-paced, stressful job which requires him to travel and work long hours. Fred is diagnosed with Relapsing-Remitting Multiple Sclerosis and is paid benefits. His private disability insurance will pay if he is disabled from “the occupation which you regularly performed at the time of disability”.

The neurologist reports that Fred’s Multiple Sclerosis is in remission. The insurer requires an update from Fred about his condition and he reports that while most of his symptoms have significantly decreased, he continues to be suffering from fatigue and cannot return to work. Fred points out that while he can work an 8-hour day, he cannot perform his occupation as required with long days and travel. He lacks the stamina to perform his job as CEO.

The insurer has a functional abilities evaluation, and a neuropsychological assessment completed. The insurer terminates Fred’s claim.

How Do You Measure Fatigue?

This question is a challenging one for both the insured and the insurer. Disability insurers focus on function and restriction when they assess claims. They are not focussed on the diagnosis or the cause of the symptoms but rather on the limitations and restrictions which they cause and why they mean that the insured cannot work.

Insurer’s Tools – Functional Abilities/Capacity Evaluation:

Insurers use functional abilities evaluations or functional capacity examinations  (“FAE/FCE”) to measure restrictions and limitations. The evaluation measures a person’s ability to lift weight, push and pull items and one’s range of motion. It may be conducted by a chiropractor, physiotherapist or occupational therapist. The examiners will use tests to give them an idea of whether the person is putting adequate effort into each test.

Why can’t a FAE/FCE measure the disability caused by fatigue?

The evaluation measures one day (or perhaps two days) of effort. It does not measure fatigue, and it does not measure the aftereffects of the exertion such as pain and exhaustion in the following days.

If the insured’s occupation or profession is sedentary, FAE/FCE is not testing relevant restrictions and limitations. It is not measuring fatigue or the effects of sustained work in a real-life setting. The FAE/FCE provides a result which is irrelevant and does not indicate a true measure of the ability to work.

Too often the insurer will accept the results and either deny the claim or terminate benefits without having answered the essential question – how bad is the fatigue and does it prevent work?

Insurer’s Tools – Neuropsychological Assessment:

Insurers are aware that the FAE/FCE is a flawed tool where the limitation from work is not physical. Often the insurer will ask questions about the impact of fatigue on the person and why fatigue would prevent a return to work. The insured may provide examples of how fatigue impacts their ability to work such as a concern about their ability to focus or the potential of missing important details impacting their ability to perform the essential functions of their profession.

The insurance company may choose to have a neuropsychological evaluation completed.  The American Library of Medicine describes this evaluation as:

Neuropsychological assessment is a performance-based method to assess cognitive functioning. This method is used to examine the cognitive consequences of brain damage, brain disease, and severe mental illness. There are several specific uses of neuropsychological assessment, including the collection of diagnostic information, assessment of treatment response, and prediction of functional potential and functional recovery….

…A critical concept in neuropsychological assessment is normative comparison. This involves taking the performance of an individual at the time they are time they are tested and comparing that performance to reference groups of the same age, sex, race, and educational attainment.

Why can’t a neuropsychological assessment prove the fatigue is disabling?

At first glance, the neuropsychological assessment may seem to be the right tool to measure whether the insured is liable to make errors or make decisions more slowly. If the individual suggests that problem-solving is essential to their occupation and fatigue is impacting their ability, why wouldn’t the insurer use a neuropsychological assessment?

The neuropsychological evaluation provides information, but it is not enough because:

1. It measures performance in the test location. The evaluation does not measure the person’s ability to perform their profession in a real-world setting. For instance, a surgeon’s ability to make decisions in hour 4 of a 6-hour surgery, within the stressful environment of the operation room cannot be accurately tested.
2. The assessment tests the insured against the expected results for the person’s sex, age, race and educational level. It is not measuring the person against their own prior abilities. There may be a deficit against the person’s performance pre-disability which simply can’t be measured by comparing against the norm.
3. The assessment does not test the effects of fatigue on function over time. The insured may be capable of performing well in a quiet, office setting, having not worked in the days prior to assessment. The test may provide somewhat relevant results for the first day of work. It does not provide helpful information about the person’s ability to perform when fatigued or at the end of a busy work week.

The Takeaway:

Disability claims which are based on subjective symptoms like fatigue are particularly difficult as the insurer will look for an objective test of the impact of fatigue on your ability to work. These claims will often result in a denial or a premature termination of benefits because the insurer will use imperfect tools to try to assess the impact of fatigue on function.

We know how to challenge the insurer’s decision, and we are aware of the issues posed by these claims. We can assist you in challenging the insurer’s decision to deny or terminate your claim. For advice, please text 613-777-0992 or contact us through our website to schedule a meeting with one of our lawyers.  We will provide a free consultation, in French or English, to ensure that your rights are protected.   In most cases, we can offer to represent you on a contingency fee basis.  This means that you do not pay legal fees unless you win or achieve a settlement on your case.

To learn more about the definition of disability, refer to our blog, “What does “Own Occupation” mean?”

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