Proving Invisible Disabilities in Ontario: Fibromyalgia, Chronic Pain, and Long-Term Disability Claims

Why “invisible” disabilities can be harder to prove

“Invisible disability” is a descriptive term, not usually a defined category in an LTD policy. Examples include:

• fibromyalgia
• chronic pain syndrome
• migraine disorders
• some neurological conditions
• certain mental health conditions

The insurer may have fewer conventional findings to review, (such as fractures, structural damage, or abnormal imaging), shifting attention toward:

• clinical history
• symptoms over time
• consistency of medical records
• treatment
• restrictions and limitations
• frequency of flare-ups
• ability to sustain activity
• occupational demands

Note: The absence of a diagnostic scan is different from the absence of medical evidence.

Your diagnosis matters, but your Long-Term Disability policy determines the legal test

A diagnosis of fibromyalgia does not by itself establish entitlement to LTD benefits. The policy determines what must be proved.

“Own occupation” disability

• Many group LTD policies initially assess whether the claimant can perform the essential duties of their own occupation
• Many policies apply an own-occupation definition for a period such as 24 months, but the wording and timing vary by policy.

“Any occupation” or change of definition

• Some policies later assess whether the claimant can perform another occupation based on criteria specified in the contract, which may include education, training, or experience.
• The policy wording controls.

The four types of evidence that can strengthen an invisible disability LTD claim:

1. Medical proof

• Diagnosis, clinical observation, symptoms, treatment, prognosis

2. Functional proof

• What the claimant can and cannot safely or sustainably do

3. Reliability proof

• Whether they can perform activities consistently enough for employment

4. Work proof

• What the claimant’s actual occupation requires and where their abilities break down

Evidence #1: Build a consistent medical record

Diagnosis and clinical history

• when symptoms started
• progression
• diagnosis
• relevant examinations
• investigations used to check for other causes
• referrals
• specialist consultations where available

Note: Arthritis Society Canada notes that a family doctor can diagnose fibromyalgia after clinical assessment.

Treatment history

• medication
• physiotherapy
• occupational therapy
• pain clinic treatment
• psychotherapy where relevant
• exercise or rehabilitation recommendations
• sleep treatment
• other appropriate treatment

Treatment response

Note: Evidence should show more than “Patient has fibromyalgia”; useful records explain:

• what has been tried
• what helped
• what did not
• side effects
• continuing symptoms
• impact on function

Follow medically appropriate treatment and make sure legitimate barriers, side effects, or reasons for discontinuing treatment are documented.

Evidence #2: Translate pain into functional limitations

Note: Insurance disability claims often become clearer when medical symptoms are connected to actual tasks.

Sitting

• how long sitting can be tolerated
• need to change position
• how frequently breaks are needed
• recovery after prolonged sitting

Standing and walking

• duration
• distance
• balance
• weakness
• pain escalation
• recovery requirements

Head and upper body function
These are relevant for:

• typing
• lifting
• reaching
• repetitive movement
• carrying

Cognitive function

Fibromyalgia can involve concentration and memory difficulty, sometimes described as “fibro fog”. This is connected to:

• maintaining focus
• reading complex documents
• remembering instructions
• multitasking
• processing information
• making decisions
• maintaining accuracy

Fatigue

Fatigue has work consequences:

• shortened periods of sustained activity
• increased breaks
• reduced pace
• inability to finish a normal workday
• recovery after exertion

Evidence #3: Prove reliability, not only capability

Being able to do something once does not necessarily show you can do it eight hours a day, five days a week. The issue is sustainable function.

A claimant might be able to:

• shop for groceries for 30 minutes
• attend a family event
• walk around the block
• drive to an appointment

But employment may require:

• predictable attendance
• sustained concentration
• repeated tasks
• deadlines
• consistent productivity
• several hours of activity
• limited opportunities to rest
• performing again the next day

Three useful questions to ask about any activity:

• How long can you do it?
• What happens afterward?
• Could you repeat it consistently on a work schedule? 

Evidence #4: Connect your symptoms to your actual job

Get the real job demands, gathering:

• official job description
• typical schedule
• physical demands
• cognitive demands
• productivity requirements
• travel requirements
• client interaction
• supervisory responsibilities
• shift requirements
• deadlines
• safety-sensitive responsibilities

Compare demand with capability

Why a symptom and function log can help

A simple log is recommended, avoid an exaggerated diary…

1. Track:

• date
• major symptoms
• severity of symptoms
• important activities
• functional limits
• flare duration
• recovery time
• sleep
• relevant medication effects
• unusually good or bad days 

Note: Record what actually happened.  Do not try to make every day look equally bad.

What should your doctor document?

1. Medical

• diagnosis
• symptoms
• duration
• treatment
• response
• prognosis

2. Functional

• sitting tolerance
• standing tolerance
• walking
• lifting
• cognitive stamina
• sleep-related impairment
• fatigue
• need for breaks
• medication side effects

3. Reliability

• frequency of flares
• duration
• recovery time
• expected absenteeism (where medically supportable)
• ability to maintain a regular schedule

4. Occupational connection

Where appropriate, the doctor should explain why these limitations might interfere with the patient’s actual occupational duties. The report should document the clinical findings, symptoms,, and restrictions that prevent the patient from sustaining particular workplace activities.

Can a functional capacity evaluation (FCE) help?

Note: An FCE is neither mandatory nor definitive, but it can seomtimes be of help. Whether one is appropriate depends on the individual claim.

1. An FCE may provide information about physical activities such as: 

• lifting
• carrying
• sitting
• standing
• walking
• movement tolerance
  
  

2. For fluctuating pain or fatigue conditions, a one-time assessment may not capture:

• delayed symptom flares
• endurance across several days
• cognitive symptoms
• recovery requirements
• unpredictable bad days

“Your MRI is normal.” Does that mean your LTD claim should fail?

• A normal MRI, x-ray, or blood test does not automatically determine whether someone meets their LTD policy’s definition of disability.
  
  
• Fibromyalgia itself generally is not confirmed by one blood test or scan. Diagnosis relies heavily on clinical assessment and symptoms.
  
  
• The case of Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30 (see below) is a reminder that conditions such as fibromyalgia can form the basis of genuine disability claims and that the complete evidentiary record matters:

Connie Fidler had chronic fatigue syndrome and fibromyalgia and received LTD benefits.  Sun Life later terminated benefits after relying partly on surveillance, despite medical evidence supporting continued disability.  The case ultimately reached the Supreme court of Canada.

Surveillance and the “good day” problem

Note: Someone with chronic pain may have good and bad days. The legal question is not necessarily “Could you perform this activity?”, but “What does this activity actually tell us about your ability to perform the relevant work requirements consistently?”

An insurer may obtain surveillance showing a claimant: 

• driving
• shopping
• gardening
• walking
• attending an event

Advice to claimants:

• Be truthful.
• Follow medical advice
• Assume public activity is being observed
• Explain legitimate activity accurately

Common reasons fibromyalgia and chronic pain Long-Term Disability claims are denied

It is recommended that you obtain legal advice when:

1. “There is insufficient objective medical evidence.”

      This issue commonly arises with clinically diagnosed conditions.

2. Medical notes describe symptoms but not function.

3. The insurer says the claimant can perform sedentary work.

    “Sedentary” does not automatically equal “suitable” or “sustainable” work. 

4. Treatment records contain gaps.

    Gaps might be legitimate rather than implying bad faith.

5. The insurer points to normal daily activities.

6. Surveillance appears inconsistent.

7. The claimant’s doctor uses broad conclusions without detailed reasoning.

8. The claimant reaches a change-of-definition point.
   
   
9. The insurer relies on an insurer-arranged medical or file review.

    It is preferred to have an “insurer-arranged medical examination” or “insurer    medical examination” where possible (rather than implying the examiner is institutionally independent merely because the acronym IME was used).

What to do if your fibromyalgia or chronic pain Long-Term Disability claim is denied

Step 1: Read the denial letter carefully.  Identify exactly what the insurer says is missing.

Step 2: Get the LTD policy or benefits booklet. Determine the applicable definition.

Step 3: Keep the denial letter and record the date received.

Step 4: Obtain the evidence the insurer relied upon where available.

Step 5: Compare the denial reasons with the four evidence buckets: medical, functional, reliability work.

Step 6: Do not rush into an internal appeal without understanding the legal implications. 

Step 7: Get legal advice about the policy, evidence, and deadlines.

Important Ontario deadline: do not assume an internal appeal protects your time.

Ontario’s Limitations Act, 2002 generally establishes a two-year basic limitation period running from when a legal claim is “discovered”.  Exactly when that happens in an LTD dispute can depend on the facts.

Two Ontario cases of note:

1. Western Life Assurance Company of Canada v. Penttila, 2019 ONSC 14

    The court accepted that, on those facts, the internal appeal process affected when litigation became an appropriate remedy.

2. Usanovic v. Penncorp Life Insurance Company, 2017 ONCA 395/

    This case involved a claim dismissed as out of time after benefits were terminated and litigation was commenced years later. 

Word to the wise: Do not assume an insurer’s appeal deadline is your legal limitation period, and do not assume filing an internal appeal automatically stops a limitation period from running. Get individual legal advice promptly after a denial or termination.

Five mistakes to avoid when building an invisible disability claim

Mistake 1 – Focusing entirely on the diagnosis

Mistake 2 – Trying to prove how much you hurt instead of how the condition affects function

Mistake 3 – Describing only your worst day

Mistake 4 – Ignoring the demands of your actual occupation

Mistake 5 – Treating an insurer’s internal appeal deadline as though it answers the legal limitation period question

A simple evidence checklist:

Medical 

• family doctor records
• specialist records where applicable
• medication history
• treatment history
• relevant investigations
• medical restrictions and limitations

Functional 

• sitting tolerance
• standing tolerance
• walking tolerance
• lifting/carrying ability
• cognitive limitations
• fatigue and sleep impact

Reliability

• flare frequency
• flare duration
• recovery time
• good-day/bad-day pattern
• attendance problems

Work

• job description
• actual daily duties
• schedule
• physical demands
• cognitive demands
• accommodation attempts
• failed return-to-work attempts, if applicable

When should you speak with an Ontario Long-Term Disability lawyer?

Note: Not every person with fibromyalgia needs litigation.

Speak to a lawyer when:

• your claim was denied
• your benefits were terminated
• the insurer says there is insufficient “objective” evidence
• the insurer says you can perform sedentary work
• you have been sent for an insurer-arranged medical examination
• surveillance has been raised
• your doctor supports disability but the insurer disagrees
• your policy is approaching a change of definition
• you are considering an internal appeal
• you do not know your legal deadline

Contact Rob Konduros, Long-Term Disability Lawyer in Ontario