17. Legal

1)** M.E. and F.M. are starting to
be recognized as legitimate disabilities.  As a
result, in 1995 several M.E. and F.M. patients
were able to win their court cases.   A man  in
Alberta won his case using the defence of M.E. 
The court found that, due to his poor mental
capabilities and confusion, he was not competent,
and therefore was found not guilty of embezzling
funds from the company.  The court felt that M.E.
was the cause of his mental incompetence.

     a)**  Most cases are settled the day before
     the court date, and I understand that many
     have "gag orders" which state that, in
     paying a settlement, the insurance company
     insists that you not disclose any details of
     the case to anyone.

2)** A lawyer who specializes in
M.E. cases,  speaking at the Albany
Conference on M.E., suggested that M.E. patients
keep a diary of their symptoms (an example of
such a diary is found at the back of this manual). 
If the diary is kept up-to-date, it could be used
during your court case to show what your
symptoms were like on a continual basis - how this
illness affected your life.   A judge might ask you
what your typical day was like; you are able to
prove to him what your year was like.  (#92055
Video2 @ 7:30).

     a)** If you are working, and have to use a
     sick day because of your M.E. or F.M.
     symptoms, have your supervisor put a note
     in your file stating so.  If you have a legal
     case later on, employment records can be
     used as evidence.  It would be better for
     you if it could be shown that you had M.E.
     or F.M. "problems", rather than you were
     just sick with a cold.

     b)** The judge looks at your medical
     records, sees a vague statement by your
     doctor, such as  "patient is improving". 
     Statements like these, with no degree of
     improvement noted, or with which
     symptoms, leaves the judge to assume
     larger improvements than what actually
     occurred.

     c)** Dr. Sheila Bastien (in #92055 Video2
     @ 7:00) speaks about physicians filling out
     forms with regard to physical abilities and
     lifting criteria.  She states that symptoms
     vary far too much on a daily or even an
     hourly basis, and recuperation from any
     activity will vary hourly to daily.  The
     doctor cannot fill out the form and give an
     accurate assessment of what the patient can
     do.  The doctor must spend time and
     determine (in detail) what the patient is
     capable of doing, and how the patient
     suffers after doing any activity.  

     d)Court cases.   In 1994, Calgary, Alberta,
     a  judge made a statement during the trial,
     that "F.M. is not a real disease, but a
     court-driven ailment".  The National
     M.E./F.M. Action Network (#950406)
     obtained a lawyer in Calgary to dispute that
     incorrect statement by the judge.  {PO}{I
     applaud the Network for not sitting back
     and allowing F.M. people to be "stomped
     on"}

     e)** Insurance Company Loses
     Landmark F.M. Case in Chilliwack,
     B.C.  (Lawyer's Weekly, May 26, 1995)
     In 1995, the Great West Life Assurance
     Company was ordered to repay two years'
     disability benefits and $10,000 aggravated
     damages.  The man had been forced by
     Great West Life to pay for all medical
     reports.  The judge said "This took food
     from the table".  This is the first bad-faith
     judgement against a disability insurer in
     B.C.  $10,000 was the largest punitive
     (aggravated damages) fine in a bad-faith
     case.  According to an internal Great West
     memo, one reason for refusing payment of
     disability benefits was that the company did
     not want to set a precedent for a similar
     claim, also from B.C.   Great West had
     hired a private investigator, who took
     videos of the man working on his car.  The
     judge discounted this evidence because the
     man had to sell the car to live, and "the
     plaintiff was bedridden with pain following
     these activities."  Shortly before the trial,
     Great West agreed to pay the benefits up to
     that date.  The judge also said "However,
     the defendant exhibited such a resolute and
     unreasonable determination to deny the
     plaintiff's benefits under the policy in the
     face of overwhelming medical and other
     reports, consistently reporting the plaintiff
     to be in fact disabled, that I have concluded
     the defendant failed in its duty to the
     plaintiff to act in good faith".

3)** Legal precedents.  #94012-2  A
lawyer has accumulated several precedents on
F.M. and Myafacial Pain Syndrome, and is willing
to send them out in Ontario.  Phone
#(705)726-9021/ fax #(705)726-2132.

4)** Finding a lawyer.   Find a lawyer
familiar with M.E. and F.M., not necessarily one
that you like.  Contact one of the following
agencies for help:

     a)** Find a lawyer who specializes in
     disability, insurance, and CPP applications.

     b)** M.E. Canada (#941004-1) has a
     fulltime paralegal (on staff) who will speak
     to patients and lawyers, and assist them
     with their case.  M.E. Canada is building a
     reference library of legal cases.

     c)B.C. Coalition of Human Rights,  phone
     #660-6811

     d)B.C. Coalition of People With
     Disabilities Phone #1-800-663- 1278/
     #875-0188/ fax #875-9227

     e)** M.E./F.M. Action Network has a list
     of national lawyers.

     f)Community Legal Assistance, phone  
     #685-3425.

     g)The Law Line (phone #660- 4673) will
     give you some general, legal information.

     h)Law Reference, phone #l-800-565-5297

     i)Lawyer Referral Service, phone
     #687-3221

     j)Legal Services Society (Legal Aid) on
     Alexandria Street, Vancouver (phone 
     #687-1831) or in Surrey (phone
     #584-8535).

     k)** Public Interest Advocacy Centre on
     West Hastings, phone #687-3063/ fax
     #682-7896.

     l)UBC Students Legal Aid, phone
     #822-5791.

5)** Most lawyers will not charge
for the first visit, and after that will either
work on an hourly rate or on a contingency basis -
they receive a preset percentage of any settlement
that you might receive.  {PO}{If a lawyer feels
confident that you have a good enough case to take
you on a contingency basis, then I feel it is worth
while to take legal action.  If you were to pay an
hourly fee, you would have to feel very strongly
about your situation to continue with the case.}

     a)** Over the Phone.  You can discuss
     your case over the phone (for the first time,
     probably for free).  Fax some particulars of
     your case before you call.

     b)** There are several lawyers who have
     worked for M.E. patients and have won
     their cases:

          (1)** Greg Steele, of the law firm
          of Steele & Company, #1340 - 1090
          West Georgia Street, Vancouver,
          B.C.  V6E 3V7  Phone #684-1757/
          fax #684-1815.

          (2)** Joseph Murphy, of the law
          firm Murphy, Battista, #2020 - 650
          West Georgia Street, Vancouver,
          B.C.  V6B 4N7  Phone #683-9621/
          fax #683-5084.

     c) ** Tim Louis of Tim Louis & Co., 
     #108 - 2182 West 12th Street,   
     Vancouver, B.C.  Phone #732- 7678

6)** Deadlines Are Not Written In
Stone.   If you have missed a deadline for a
lawsuit, you can "ask" for an extension due to
special circumstances.  Legally, you are still able
to try to sue after a deadline has passed - some
people have won settlements, however it will
affect your overall claim.