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Chronic Fatigue Syndrome – Arbitration Decision

 

Office de la Langue Française – “the employer”

- and -

Syndicat des professionnelles et professionnels du Gouvernement du Québec – “the union”

 

 

Grievance #17675 – Pierre Martel

Arbitrator: Gilles Desnoyers

Employer representative: Jean Hébert

Union representative: Bernard Philion

Employer assessor: Marc Larouche

Union assessor: Gaston Lavoie

Hearings: Quebec City, Oct. 20; Nov. 3-4, 1997; Jan. 29-30, April 17, May 21,22,27, 1998.

Conference dates: Sept. 11 and Nov. 19, 1998

 

Date of the decision: Nov. 24, 1998

 

THE DISPUTE

 

Mr. Pierre Martel is a linguist-terminologist (area of work: cultural officer) with his employer. He worked there as a student and occasional employee beginning in 1978 and has had a full-time position since 1985. He is 43 years old.

Pierre Martel had several work leaves after 1983. On September 3, 1996, he reported off work again. His physician said he was suffering from a recurrence of chronic viral infection (HHV6), resulting in significant and incapacitating fatigue, as well as difficulties in sleeping making him incapable of working.

On November 21, 1996, at the request of CARRA, Dr. Louis Couture, a specialist in internal medicine, provided an expert medical opinion. Dr. Couture concluded Mr. Martel had no organic illness, that it could not be considered he had a total incapacity to fulfill his duties, and that he was fit to return to work as of November 22,1996.

As a result of this expert opinion, the employer requested Pierre Martel to report to work, which he did on November 27, 1996. Mr. Martel was then on vacation from December 15, 1996 to January 19,1997. He said he was not then capable of working, and he stopped working February 4, 1997, despite the fact the employer did not recognize his inability to work and demanded he perform his work as required.

On February 4, 1997, Mr. Martel presented a grievance which reads as follows:

The employer refuses to recognize my disability and as a result, demands that I report to work despite the fact I am not able to. I contest this decision and ask that my disability be recognized and this, in respect of all the rights and benefits provided for by the collective agreement.

Since he stopped working, Pierre Martel is on leave without salary pending the arbitration decision concerning his grievance.

On February 21, 1997, his physician Dr. Sandra Del Degan wrote to the employer, advising that Mr. Martel was not in a condition to return to work on November 22, 1996 and that after his return to work on November 27,1996, his condition worsened. According to Dr. Del Degan, Mr. Martel was not able to work after February 5,1997 as a result of his illness (Chronic Fatigue Syndrome of a viral origin, HHV6, in particular) which renders him unable to function. The physician said her patient presents notably great fatigability, low immunity, a significant decrease in ability to concentrate, sleeping difficulties, and photophobia. The physician concluded Mr. Martel would be unable to work for an indefinite period.

On February 6,1997, shortly after he stopped working, Pierre Martel was seen by Dr. Raymond Laflamme, an internal medicine specialist, for an expert evaluation. This physician concluded Pierre Martel did not present any organic medical problem that could explain his fatigue or his concentration difficulties and that he was capable of working, with no restrictions.

On February 12,1997, Dr. Line Vanier issued a diagnosis indicating Mr. Martel did not have any major psychiatric problem or any personality disorder. On April 11, 1997, Dr. Line Thiffeault, a psychiatrist, saw Mr. Martel at the request of Dr. Sandra Del Degan. She gave the opinion that Mr. Martel showed no sign of any mental illness, that he had obsessive-compulsive personality characteristics, and that he was suffering from chronic fatigue syndrome. Dr. Thiffeault also concluded that cognitive or other psychotherapy did not appear indicated.

On June 10, 1997, Pierre Martel underwent a cerebral tomoscintigraphy at Hôtel Dieu Hospital in Montreal. It showed a diminution of frontal bilateral activity, more pronounced on the left side than on the right side, including an extension of the deficiency at the level of the temporo-parietal cortex, also predominantly on the left side.

On October 14, 1997, Dr. Byron Hyde, who works exclusively with patients presenting with chronic fatigue syndrome, submitted a report on Mr. Martel’s state of health. Dr. Hyde presented the following principle conclusions:

Pierre Martel is an individual with a serial history of repeat CNS encephalopathy who then developed an acute encephalitic process in 1993 that left him with measurable brain dysfunction as observed in 1997at Hôtel Dieu Hospital of Montreal’s Nuclear Medicine Department. This patient has a history typical of what would be anticipated in persons with an encephalopathy involving frontal, left temporal, and left parietal lobes. This type of brain function pathology would explain incompetency in the areas of language function, areas for which Mr. Martel was specifically employed.

On December 11, 1997, Dr. Jean Lafleur, a neurologist, presented an expert opinion at the request of the employer. The resumé of his conclusions indicates that clinical and neurological examination does not indicate an organic illness with Mr. Martel. Dr. Lafleur also expressed the opinion that tomoscintigraphy imaging does not confirm a diagnosis of chronic fatigue syndrome manifested by concentration difficulties. Dr. Lafleur concluded he found no objective element, from a neurological point of view, to prevent him from earning a living.

Mr. Martel’s record was also submitted to Sheila Bastien, Ph.D., a clinical psychologist in Berkeley, California, who conducts research in the neuropsychology of chronic fatigue. She met Mr. Martel and gave him a battery of tests over two days. Her principal conclusions are as follows:

Both the medical records and the neurocognitive findings point to a central nervous system disorder as well as other physical disorders discussed by his physicians. The neurocognitive findings are also consistent with bilateral brain dysfunction, worse in the left hemisphere.

All the neuropsychological tests are consistent with the SPECT scan abnormalities, and many impaired areas would make it impossible for him to function as a linguist. However, the most notable abnormalities are his extremely poor verbal fluency and his deteriorated verbal memory.

In summary, it is my opinion that Pierre Martel is totally and completely disabled from his own employment as a linguist specialist at the present time or for the foreseeable future, and this based on multiple areas of disability.

Finally, Maryse Lassonde, Ph.D., psychologist and professor of neuropsychology at Université de Montréal, was asked to evaluate the report of Dr. Bastien. According to Dr. Lassonde, the tests administered by Dr. Bastien do not support the conclusion that Pierre Martel has a brain dysfunction or is totally unable to do his work.

Thus the litigation involves the determination of whether or not Mr. Martel was disabled as defined under clause 8-1.02 of the collective agreement which reads as follows:

8-1.02 – Disability is understood to be a state of incapacity resulting from an illness, including an accident or complications arising from pregnancy, or a surgical event directly related to birth control, requiring medical treatment and which results in the total inability of the employee to accomplish the normal functions required of his or her work, or of any other similar work providing similar remuneration offered to him or her by the deputy minister.

Nonetheless, the deputy minister may temporarily assign the disabled employee to other duties for which he or she is capable of performing, as much as possible in a position in the category of professional personnel. In this case, the salary, or where necessary, the payment, is not reduced.

The union contends that Pierre Martel was, at the moment in question, in a state of disability as defined by the collective agreement and as a result, had the right to receive the benefits that are stipulated.

As for the employer, it contended that several physicians who were consulted did not present objective evidence of an illness, that chronic fatigue syndrome is not an illness, that there was not any proof of medical treatment nor of Mr. Martel’s inability to perform the duties required by his work.

The parties agreed that the arbitrator was properly designated, that he possessed the competence to rule on the dispute and that the claim procedure outlined under the collective agreement had been followed.

I. THE FACTS

The arguments presented by the parties brought forward the following principal facts:

The Testimony of Pierre Martel

Mr. Pierre Martel is a linguist-terminologist with his employer. He is 43 years old. He completed his Bachelor’s degree in French linguistics as well as a certificate in Teaching English as a Second Language.

 

Since 1978, Mr. Martel has worked for his employer as a student, as an occasional employee, and since 1985 as a full-time employee. From 1987 to November 1993, when he went on sick leave, he was division head.

 

Until 1993, he had always been recognized as an employee who performed very well. In February 1992, his job category was raised and he thus received a 7% salary increase, retroactive to May 28, 1991.

 

Mr. Martel experienced several periods of illness. In 1976, he was ill with what appeared to be mononucleosis. He had to stop his work as a student because he had become completely exhausted, he said, he had a fever, and he was confined to bed rest for the month of July. He resumed his studies in January 1977 but was unable to complete the session and his exams were delayed by two weeks. During the summer of 1977, Mr. Martel indicates his health was not as good as it once was but he resumed his normal activities, with the exception of competitive power-lifting. After this episode in 1977-78, he began to get better over three or four months and then the bouts of fever re-occurred. He then had to suspend his physical activities for several weeks. The situation remained like this until 1983.

 

In 1983, Pierre Martel became very tired and had to stop working when his contract as an occasional employee ended. He did not work until the fall of 1985.

 

By 1986, Pierre Martel said he felt as well as he did before 1983 and got better and better until 1992. One morning at work, he said he felt terribly tired and incapable of doing anything. A colleague took him home. He stayed off work for two days, during which he slept continuously. Mr. Martel returned to work and things went well for several months. However, his condition progressively deteriorated, he had to reduce his physical activities or even stop them in order to maintain his energy for work, he said. He then asked his superiors to reduce his workload, at which point they realized he was not functioning normally and advised him to consult a doctor.

 

In October 1993, Pierre Martel consulted Dr. Saturnino Del Degan, who prescribed a work stoppage and gave the opinion that Mr. Martel suffered from chronic fatigue syndrome. Dr. Guy Morin, a microbiologist and infectious diseases specialist, submitted Mr. Martel to several tests, which allowed him to eliminate as a diagnosis other illnesses which produce similar symptoms. He thus concluded that Mr. Martel presented chronic fatigue syndrome. Mr. Martel emphasized that he had never before heard of this syndrome. He stopped working until January 1994.

 

Mr. Martel says he asked to return to work in January 1994 to work on a file in which he had great interest. His physician authorized his return. Mr. Martel’s health problems then began to gradually reappear.

 

From January to April 1994, Mr. Martel says he felt well enough at work as he wasn’t sleeping any more except at lunchtime. During this period, he did not participate in any sports and had no social life. He realized he was unable to perform the work he once did, and limited himself to the simplest technical duties.

 

He stopped working in April 1994 and did not return until February 1996. During this period, Mr. Martel was followed first by Dr. Saturnino Del Degan and then by Dr. Sandra Del Degan. The first physician diagnosed chronic fatigue syndrome and exogenous depression, while the second made the following diagnosis: “viral infection HHV6 – positive exogenous depression”. During this period of absence, Mr. Martel received disability insurance payments.

 

In February 1996, Pierre Martel returned to work three days a week for three weeks and then on a full-time basis. A month later, he was forced to take vacation days in order to reduce his work week to three days because he was lacking in energy and ability to concentrate. He took three weeks of vacation in June 1996 to take a trip to western Canada with his friend, during which he felt tired.

 

He returned to work full-time July 8, 1996. He says he was functioning at 40% of his capacities. At the end of August 1996, Pierre Martel took a week of vacation to rest and he did not return to work, as his physician prescribed a work stoppage as a result of a recurrence of chronic viral infection HHV6.

 

On November 27, 1996, Mr. Martel returned to work after an expert’s report by Dr. Louis Couture declared him fit to return to work as of November 22, 1966. He returned to work following a call from the employer’s representative indicating he should return to work immediately.

 

Mr. Martel testified he was incapable of working at the time, that he slept at his desk throughout the day and had to take time off work. He also took holidays from December 15, 1996 to January 19, 1997. Upon his return, he was still unable to work. His superiors then met with him to advise him that his performance was unacceptable. On February 4, 1997, he stopped working and he has not worked since that date.

 

Pierre Martel emphasized he loved what he was doing and that he had given much of himself to his work. He very much enjoyed the challenge of overseeing a team of 15 people. In spite of the fact that he had to reduce his activities in 1993, he said he had still maintained the same interest in his work.

 

He also testified that he was very physically active. He did Nautilus training three to four times per week, did 10 to 15-kilometer runs (including in competition), mountain biking (40 to 70-km), and cross-country skiing (two outings of 15 km every weekend). Thus he was very good shape, he said, up until 1992. He was capable of running up Mont Ste-Anne. He was also pushing himself to the limit. During his holidays, he would participate in outdoor activities such as mountain excursions of three to 10 days carrying a 50-lb backpack. He noted that in 1975, he was Quebec power-lifting champion in his category. He also participated in social activities in the evening and on weekends.

 

Mr. Martel told of different symptoms during his work absences. Concerning his absence in 1976, he pointed out that he suffered from photophobia. He had to watch television while wearing sunglasses in order to reduce the glare and to avoid aches in his eyes. He also indicated that at this time, he did power-lifting at a competitive level and that the physician suggested to him that his mononucleosis was caused by over-training.

During the period of 1977-78 to 1983, Mr. Martel said he experienced bouts of fever every four months or so. He also had pain in his eyes, a hypersensitivity of the skin, showed signs of exhaustion, and had sore throats.

 

During his work stoppage from 1983 to 1985, Pierre Martel experienced the same symptoms he experiences now, including fever, hypersensitivity of the skin, pain in his eyes (photophobia), sore throats, as well as nausea and dizziness when he was more tired at the end of the day. He felt tired constantly, slept often, and experienced problems of concentration which resulted in a difficulty in finding his words and organizing his thoughts. At the time, he also had difficulty understanding what he was reading and he was very sensitive to surrounding noises, which caused him to isolate himself. Pierre Martel was not then participating in any physical or intellectual activity, and his social life was considerably reduced as he went to bed around 9:30 p.m. and got up around 9 a.m. the next morning.

 

Mr. Martel also presented signs of depression in November, 1983, according to a medical report by Dr. Del Degan (exhibit G-1), who prescribed a work stoppage from November 3 to December 4, 1983. Mr. Martel said he had once consulted a psychiatrist who indicated he did not have any psychiatric problem.

 

He said he does not remember stopping work for reasons of depression, but he pointed out his father had died suddenly in October 1983. He stated he had never suffered from depression.

 

Mr. Martel testified he remembered having a strong allergic reaction to an insect bite during the 1980’s.

 

Pierre Martel said the problems he had from 1983 to 1985 were similar to those that appeared in 1976 but were more intense. Between 1976 and 1986, he consulted several general practitioners and specialists and none were able to determine his health problem.

When he stopped working in the fall of 1993, Pierre Martel presented signs of great fatigue and he had, he said, the same symptoms that he had in 1983. His vision in his right eye was blurry and he had the sensation that his head was always cold. Mr. Martel said his symptoms in 1993 were more severe than in 1983 when his recovery was faster.

 

Mr. Martel said he had been exhausted for several months when he stopped working in April 1994. He did little more than eat and wash, slept 12 to 13 hours a night, and took naps during the day. He also showed intolerance to several foods which bloated his stomach, a symptom he still feels today. Until July, he has been unable to walk for more than 10 minutes without having to sleep afterwards.

 

At the end of the summer of 1994, he said he gradually increased his activities. He began to walk for 10 minutes in the morning and in the afternoon, but he had to stop after one week because he was aching and ill, as if he had made a major physical effort. Subsequently, he began his walks again for a week.

 

Mr. Martel said he tried all kinds of treatments during the 1994-96 period. He took anti-depressants even though he knew he was not suffering from depression. Indeed, he said, he was not down in the dumps; he still wanted to do things and was not fatalistic, having never given up trying to fight his health problems. The anti-depressants aggravated his state, as various secondary effects appeared, such as nausea and headaches.

Mr. Martel explained that, when he stopped work in February 1997, he felt incapable of working and had the same symptoms as he had during previous episodes. It was mostly problems of concentration which prevented him from working, as he was unable to read or understand texts. At the time, he was not involved in any outside activity except for going to the grocery store. He was exhausted, he said, and stayed in bed.

 

He said he tried various treatments – anti-depressants, vitamins, anti-oxidants, acupuncture, use of energy fields, etc.  These treatments had no notable effect. He also consulted a gastroenterologist and a psychiatrist on two occasions. The psychiatrists concluded he did not have any mental illness and that psychotherapy was not indicated. He also stated he had paid the cost of certain alternative medicine treatments himself, as well as the fees of a dentist who removed mercury fillings which Mr. Martel thought might be the cause of his problems. In fact, he said, none of the medications or treatments produced good results.

 

Mr. Martel testified that, at the moment of his testimony, he was functioning at about 20 percent of his capacity. His activities were limited to crossword puzzles in the morning, daily grocery shopping, a little Internet surfing, and whenever possible, a 20-minute walk every day. He was going to bed at 8:30 p.m. and getting up at 8 a.m., though he generally was not sleeping during the day. He also said he was not remembering what he was reading and was unable to read any text that was the slightest bit technical. Reading was in fact giving him headaches, a sensation of unbearable pressure behind the eyes. He said he was also unable to tolerate noise, which reverberates in his head. He was able to drive his car but for no more than 100 kilometers under normal conditions. He said he was rarely driving at night because of problems in concentrating. His driver’s permit had been renewed in 1993 and he did not declare that he suffered from any illness.

 

In response to a question from the lawyer, Mr. Martel said it was false to say he had never been (100%) healthy since his mononucleosis in 1976. He said he had never been healthy for a full year but that he had been in good health from 1987 to 1992 except for a few brief periods. Concerning his bouts of fever, Pierre Martel said he had them in 1976 and in 1983. On those occasions, he consulted several physicians and none had been able to identify the problem or propose treatment.

 

Concerning examinations by Dr. Lafleur and Dr. Laflamme, Mr. Martel testified they had lasted from 30 to 45 minutes. He said he could not be more precise but that he was certain they had not lasted 1.5 hours. The meeting with Dr. Hyde took place in Ottawa. Mr. Martel drove there alone early in the summer of 1997. The consultation lasted about five hours, he said. He said he arrived in Ottawa the day before and left the day after. During the subsequent weeks, he underwent a battery of tests prescribed by Dr. Hyde. These tests were administered in Quebec City, as well as in Montreal, which he reached by car.

TESTIMONY BY FRANCE MICHEL

Ms. Michel is a linguist with her employer. She has been a work colleague of Mr. Martel since 1987 and refers to herself as being his “amie de coeur” (loving partner) since 1991. She had worked alongside Mr. Martel daily from September 1987 as she was a member of team which he coordinated.

 

According to Ms. Michel, Pierre Martel was, from 1987 to 1992, a versatile employee who worked on several complex issues at once. Ms. Célestin, the division head, had absolute confidence in him because he had a remarkable ability for analysis and synthesis, and he knew how to properly delegate work among his colleagues according to their aptitude and ability. He was also a perfectionist, according to France Michel, took on a considerable workload and demonstrated foresight allowing him to propose changes in work methods. He was also a very balanced individual, able to separate his work from his social and love life. He was very much appreciated by colleagues in terms of inter-personal relations.

At the time, Pierre Martel was involved in various sports activities, such as mountain excursions, power-lifting, Nautilus training, swimming, skiing, running, etc. He participated in these activities with a small group of friends. Ms. Michel said she and Mr. Martel were friends with two other couples with whom they went out for dinner or to the movies on a regular basis.

 

France Michel testified that Pierre Martel no longer participated in any sports activities except for walking whenever he feels able. She said she has even seen him unable to feed himself and that he was no longer able to have dinner with friends. He has done this only under exceptional circumstances and on those occasions left by 8 p.m. He was normally going to bed at 8:30 p.m. It is impossible, she said, to plan meals with friends because they could not tell in what condition he would be.

 

Ms. Michel also said Mr. Martel is very discreet about his illness; if he does not feel well, he simply retires.

 

According to Ms. Michel, Pierre Martel has been in this condition since 1993 when he felt faint at the office and had to leave work. Several colleagues noted he had had health problems. She said she has never seen him in the same health as he was in 1991. During his last return to work, he slept in the office, he was confused about the computers, and his superior, Mr. Jean-Marie Fortin, asked him to supply a daily report on his activities. Ms. Michel said she intervened, and that Mr. Fortin told her Human Resources had asked for a report in order to assess Mr. Martel’s ability to perform his work.

 

In the summer of 1996, Ms. Michel and Mr. Martel took a trip to western Canada. She said it went well the first week but that he was unable to drive or go on some excursions during the second week. Upon their return, she said, they stayed over in Montreal because he was too tired to continue on to Quebec City.

 

Ms. Michel discussed Mr. Martel’s physical problems since 1993. He felt pain on his skin (like a sunburn), he had repeated tendinitis, he could not tolerate bright light very well and wore sunglasses even indoors, and he felt aching behind his eyes. He was incapable of physical effort. He had a significant problem in concentrating, which is his principal problem; he is unable to follow a movie on television or play Scrabble. At bedtime, his temperature lowers, his head feels cold, and he has to wear a sweater to bed. He has a tendency to fall asleep at the wheel while driving; he does not drive unless he must.

She said she had never noticed that Pierre Martel was ever depressed before his illness. She said he was always positive and dynamic. Nor had he ever been depressed since becoming ill. He was always confident he would get better, and was trying everything, such as homeopathy, diet, acupuncture, chiropractic, massages, etc.

 

France Michel explained how Mr. Martel felt about work. She said that one month earlier, he had said he felt dispossessed, that he couldn’t believe he would never work again. According to Ms. Michel, his primary objective is to resume his intellectual activities and then his physical activities. It was the first time he wondered if his condition could improve so that he would be able to return to work, which is what he always wanted.

France Michel lives alone with her two daughters, aged 12 and 14. She spends time with Pierre Martel only on weekends because he is unable to live with four people as he finds it too exhausting, too noisy. When she is with him, she must avoid making too much noise.

Testimony of Gaston Lavoie

Mr. Lavoie is the union representative responsible for Mr. Martel’s case. Mr. Martel contacted him for the first time December 18, 1996 to explain his situation and to inform him that the employer had sent him for an expert consultation and that he was unable to return to work. After discussing the situation with colleagues, Mr. Lavoie contacted the SSQ for names of physicians who were experts on chronic fatigue syndrome. The SSQ suggested Dr. Phaneuf at Hôtel Dieu Hospital in Montreal, and Mr. Martel was prepared to be examined by him. The physician was contacted but he was unavailable for an expert consultation before October or November 1997.

 

Mr. Lavoie explained the employer was refusing to recognize the disability of Pierre Martel and that it was necessary to move quickly. The SSQ proposed an expert consultation by Dr. Laflamme, who was not known by the union. Gaston Lavoie then informed the SSQ representative and Mr. Normand Doris of the labour relations division that he would not be bound by the expert report.

Testimony of Dr. Sandra Del Degan

Dr. Del Degan has a full-time family medicine practice. She has been Pierre Martel’s physician since June 28, 1994.  Previously, he had been followed by Dr. Saturnino Del Degan.

 

When Dr. Sandra Del Degan saw Mr. Martel June 28, 1994, he had been off work since April 1994. She said she had noted he was non-functional, that above all he showed symptoms of fatigue, had difficulty carrying out daily functions, had concentration problems, memory problems, and some feelings of sadness. This diagnosis was made, she said, following the diagnosis made January 26, 1994 by Dr. Guy Morin, an infectious disease specialist, of a fatigue syndrome with a viral etiology (HHV6 In particular) showing a drop in lymphocytes.

 

At the time, Mr. Martel was taking anti-depressants (Zoloft), vitamins B-6 and mother of pearl oil. Dr. Del Degan prescribed time off work, medication, as well as support therapy which she provided herself. After considering the opinions of psychiatrists Vanier and Thiffeault, who had seen Mr. Martel, she did not refer Mr. Martel for psychiatric consultation. She saw him subsequently every month or every second week if there was a particular problem. Throughout the period from June 1994 to February 1996, Dr. Del Degan maintained the same basic diagnosis she gave in June 1994.

 

Dr. Del Degan recalled that Pierre Martel resumed work in February 1996 for three days a week, and effective April 24, 1996, on a full-time basis. She subsequently saw Mr. Martel following his holidays in the Summer of 1996, when he indicated to her the trip did not go as well as he would have liked. At the time, he was taking Prozac, a medication that is not useful, she said, in the case of chronic fatigue syndrome. Mr. Martel had not been showing any signs of depression and, as the drug was not giving good results, she asked Mr. Martel to stop taking it.

 

At the beginning of September 1996, Dr. Del Degan again prescribed a work stoppage for Mr. Martel, diagnosing “recurrent virus, chronic HHV6 infection” and noting he presented “significant, incapacitating fatigue – sleeping difficulties making him unable to work”. She said he was unable to return to work in November 1996 and still unable to work in February 1997, as indicated in the report submitted to the employer February 21, 1997. This report reads as follows:

 

Mr. Martel has not been at work since February 5 due to an illness which has left him unable to function. The illness is chronic fatigue syndrome, probably of viral origin (HHV6 in particular), as noted by Dr. Guy Morin in his report filed to the Office. Mr. Martel presents significant fatiguability, weak resistance, a significant decrease in concentration abilities, sleeping difficulties, and photophobia.

 

Mr. Martel was unable, in my opinion, to resume work November 22 in spite of the conclusions of Dr. Louis Couture’s report (the CARRA expert). Nonetheless upon the urging of the Office, he tried to resume his professional activities. I again saw Mr. Martel December 23, 1996 and January 21, 1997, and on both of these visits, no improvement since his November 21 visit was seen. Indeed, even though upon his return to work November 27, he used up his reserve of vacation time (he had no sick days left) to shorten his work week and to help him recover from his days at work, and even though, as he told me, he spent “most of his time at the office sleeping”, his condition worsened.

I am scheduled to see Mr. Martel again February 26 for a new evaluation. Mr. Martel is thus absent from work since February 5 and will remain so for an indefinite period.

 

According to Dr. Del Degan, Mr. Martel’s whole being has been affected in a physical and organic or psychical way. An overall evaluation based on several months of follow-up shows to her that he is not functioning. Mr. Martel is thus ill, she says. She is of the opinion that he is not inventing his symptoms, as attested to by several details, such as the fact he is always punctual, he has tried every possible therapy, he faithfully takes his medication even when he is hypersensitive to it, he has spent a lot of money to help treat himself, and he indicates he wants to return to work.

 

Dr. Del Degan also pointed out Pierre Martel has always reported the same symptoms and that since September 1996, he has been unable to perform his work because of his concentration difficulties, his inability to make a mental effort, his memory problems, etc. Mr. Martel presents, in her view, the principal symptoms of chronic fatigue syndrome. He has shown significant fatigue for more than six months as well as a decrease in his capacity to function of more than 50%.

 

In addition, he has undergone a great number of tests which have proven negative, he has memory problems, headaches, muscular and articular pain, fever, and pharyngitis.

Dr. Del Degan stated she had established that Pierre Martel had medical abnormalities, that is, he carried the herpes virus (HHV6). She emphasized the diagnosis of chronic fatigue syndrome had first been made by Dr. Saturnino Del Degan and by Dr. Morin, who had also found a drop in lymphocytes.

 

As for the possibilities of recovery, Dr. Del Degan explained she could not say. However, she added that psychotherapy support was very useful in similar circumstances and that this treatment was recognized and paid for by the Health Insurance Board.

Testimony of Dr. Byron Marshall Hyde

Dr. Hyde is a general practitioner and holds a diploma in biochemistry from the University of Toronto. He worked in a Center for Immunological Research in Bar Harbor, Maine, and headed the team responsible for electronic microscopy at the Hospital for Sick Children. Since 1984, he has worked exclusively in the field of chronic fatigue syndrome, on which he has conducted and published research.

 

Dr. Hyde said he has personally seen about 1,000 patients suffering from CFS since 1984 out of a total of about 2,000 people seen at his clinic. He is also principal editor of the text “The Clinical and Scientific Basis of Myalgic Encephalomyelitis – Chronic Fatigue Syndrome”, the only text of its kind in the world.

 

Dr. Hyde has served as expert court witness on CFS on about 30 occasions in Canada and the United States, and has organized and participated in various Canadian and international symposiums on CFS. He is also one of the founders, in 1984, of the Nightingale Research Foundation whose mandate is to support CFS patients, represent them before government, provide information to the public and health professionals, and to promote research on treatments, prevention, and cure of the illness.

 

Dr. Hyde saw Mr. Martel at the request of the union. This consultation lasted five to six hours, with the conclusion that Mr. Martel represented a typical case of chronic fatigue syndrome or myalgic encephalomyelitis. Dr. Hyde emphasized Pierre Martel’s case was very complex and that he presented several physical problems. He reached his conclusions based on the diagnostic criteria established by the “1988 Holmes Definition of chronic fatigue syndrome - the Centre for Disease Control in Atlanta”. This definition and the diagnostic criteria are found on page 14 of the physicians’ guide published by the Nightingale Research Foundation (exhibit S-33). This physicians’ guide on myalgic encephalomyelitis/chronic fatigue syndrome was prepared principally by Dr. Hyde and neuropsychologist Sheila Bastien along with a dozen other physicians.

 

Dr. Hyde traced the history of CFS back to 1934. Since that time, researchers have been trying to identify the CFS virus and it has only been in the past several years, he said, that certain things, including the “Borno virus” have been found. He also emphasized that more advanced pieces of equipment now exist to analyze the brain, such as the “SPECT SCAN” for cerebral tomoscintigraphy. Hôtel Dieu Hospital in Montreal now has one of these pieces of equipment, the “Picker 3000”, which was used to examine Mr. Martel’s brain and which uncovered changes in his brain that are typical of what is found with CFS.

For Dr. Hyde, Pierre Martel’s case is fascinating because when he was sick in 1983, he showed symptoms which correspond to the CDC’s diagnostic criteria for CFS. The illness was only recognized in 1984 and the criteria were only issued in 1988. Thus for Dr. Hyde, it is clear that Pierre Martel could not have invented his illness.

 

Dr. Hyde explained that when he suspects someone suffers from CFS, he cross-checks symptoms with the Atlanta CDC diagnostic criteria as well as with more demanding ones issued in England which require objective measures of brain modification. Besides, he said, several symptoms contained in the Atlanta CDC criteria may originate in the brain (generalized fatigue, headaches, neurological problems such as photophobia, memory loss, excessive irritability, etc).

 

In reference to the medical community’s recognition of CFS, Dr. Hyde said there is a lot of controversy about this illness, as there is for several other illnesses. Such was the case for Alzheimer’s disease, mononucleosis, and multiple sclerosis, which were not recognized by physicians for a long time. CFS is not a new disease, but medical science has only shown an interest in the past 15 years. According to Dr. Hyde, medicine always shows resistance as long as the exact cause of an illness is not fully defined. In spite of that, the Atlanta CDC has recognized CFS, the Canadian government has accepted the Center’s definition, and considerable research is under way in Australia, South Africa, Scotland, England, Belgium, and Holland. Germany is also conducting considerable research, especially since the discovery there of the Borno Virus.

 

According to Dr. Hyde, CFS involves cerebral insult, according to the English definition of the disease, and this brain dysfunction can be detected by cerebral tomoscintigraphy (SPECT SCAN).

 

Dr. Hyde saw Mr. Martel, examined him, and asked him to undergo several tests. He said he only sees patients upon referral and about half of them have something other than CFS. Upon completion of his examination of Mr. Martel, Dr. Hyde prepared a report dated October 14, 1997 (exhibit S-31). His principal conclusions are found in the following extracts of the report:

 

As you requested, I have seen your client, Mr. Pierre Martel, taken a detailed history, examined and tested him, and reviewed some 245 pages of documents concerning the state of your client’s health to ascertain if there is reasonable evidence that he is unable to perform his duties as an employee of the Government of Quebec, Language Bureau, in a reasonable, responsible, and consistent manner. I have come to certain conclusions which are discussed in the three attached documents.

Summary of 3 reports submitted by Dr. Hyde:

Both Mr. Martel and his physicians attest to the fact that Mr. Martel has been disabled since falling ill in 1993 and has been totally disabled since at least September 1996, and that due to this chronic disability, he has been incapable for medical reasons to fulfill his professional duties with the Language Bureau of the Government of Quebec, where he worked in the professional capacity as an expert in the language field.

 

It is noted that in the past, he had similar but shorter episodes of the same or similar disability affecting both memory, and physical and mental stamina.

 

Mr. Martel has been diagnosed with an illness described as Chronic Fatigue Syndrome (CFS) by at least two Quebec physicians. However, no evidence of any physical, chemical or scientific changes has hitherto been demonstrated to support the existence of such a syndrome in his case. As well, one physician in the 245 pages of notes states that the committee of the Quebec Government hearing this case does not accept CFS as a legitimate cause of disability. Although I am not in a position to comment on whether this statement is correct or not, I should like to comment on CFS.

 

CFS is a disease process associated with an injury to the central nervous system. In its severe form, it is a chronic disabling medical illness. It is an entity defined by the Atlanta Center for Disease Control, and accepted by both this branch of the United States Government Health Services and also by the National Institute of Health in Bethesda, Maryland. Similarly, the Canadian Government through the Health Canada Branch has funded work in the field and the Canadian Disability Pension Branch in general accepts CFS as a cause for medical disability if suitably substantiated. It would appear to me most unusual if a Quebec committee deprived its citizens of access to medical disability for such a disabling illness. It is my earnest hope the private physician who makes this statement is incorrect (see documents provided).

 

Specifically, Mr. Martel has sufficient evidence of an encephalopathy in areas of his brain cortex to most likely cause short-term memory loss, and difficulty or inability to interpret visual and auditory information necessary for him to perform his work with any reasonable competence or consistency in the area of language. In addition, the areas of Mr. Martel’s brain demonstrating evidence of encephalopathy are consistent with other patients with severe fatigue syndromes, and memory and language dysfunction.

 

Consistency

Since 1976, Mr. Pierre Martel has had a recurrently abnormal medical history indicating central nervous system (CNS) pathology and/or immunological pathology, and/or chronic or hit-and-run type infection pathology causing CNS dysfunction. He does not show up one day with one illness and with another the next day. His illness history is consistent with a specific-site injury, whether this is CNS or CNS and immunological.

 

He has an abnormal physical examination consistent with pathological CNS changes.

1.        rapid degradation of verbal and physical skills during a four-hour interview and examination;

2.        positive Romberg Test suggesting CNS pathology;

3.        hypertension and abnormal pulse pressure responses suggesting neurally-mediated cardiovascular response that could be the end cause of this fatigue syndrome;

4.        mild bilateral aniscoria suggesting changes in subcortical brain nuclei;

5.        crimson crescents observed in CFS;

6.        unusually thin hand and foot dermis suggesting chronic decrease in physical activity consistent with patient history;

7.        weak adduction of leg muscles.

 

Mr. Martel has multiple abnormal test results:

1.        abnormal brain SPECT, Hôtel Dieu de Montréal, indicating encephalopathy;

2.        abnormal blood cell morphology and quantitative abnormality suggesting anemia of chronic disease;

3.        abnormal rheumatoid indicators: A.N.A. and specking, suggesting an immune dysfunction;

4.        abnormal herpes virus antibody results, suggesting possible immune dysfunction;

5.        B. Homines infection: see discussion in section 2 report raising possibility of chronic disease;

6.        Possible neurally-mediated cardiovascular dysfunction;

7.        Abnormal CD markers (should be repeated);

8.        Sinusitis, possibly incidental to his primary disease.

 

Essentially, Mr. Martel states he is unable to work due to an acquired disability that has left him both severely and chronically exhausted with no reasonable cognitive or physical stamina, and largely incapable of performing reasonable work, social, physical, and sport activity. He complains primarily of rapid exhaustion, significant short-term memory dysfunction, and confusion in simple intellectual tasks when stressed, sufficient to make any consistent or ongoing work or activity impossible.

 

SPECT SCAN

The SPECT scan performed at Hôtel Dieu Hospital’s Nuclear Medicine Department notes a decreased frontal lobe perfusion. This type of perfusion defect would make it difficult or impossible for him to make consistent rational intellectual decisions concerning his work. Such broad hypoperfusion defect in the frontal lobes is normally associated with limbic system injury (subcortical). Hôtel Dieu does not have all of its software in place and so cannot demonstrate this defect. Hopefully this will be in place within the next year and Hôtel Dieu will be up to U.S. standards. The decreased circulation noted in the SPECT scan is significantly more pronounced in the left brain hemisphere, the area most important for retaining and retrieving both visual and auditory information in most right-handed individuals. Mr. Martel is right-handed.

 

It is my firm conviction after examining Mr. Martel and his test results and from consultations that he is presently disabled as he states, and has been since he was obliged to cease work. He is definitely not able to work at his government employment since the very areas of language comprehension and memory in the left temporal and parietal lobe areas demonstrate specific evidence of decreased circulation and therefore decreased ability. There is a significant circulation decrease in the brain areas noted in this report.

 

In addition, it is my belief that presently and during the period of this extended illness, he has not been capable of any reasonable, consistent, and on-going gainful employment. The stress is on reasonable, consistent, and on-going. It is also my experience that considering the length of his illness and the increasing lengths of the episodes of disability, individuals with similar conditions rarely recover in the short or medium term.

Nevertheless, it would be prudent to re-examine the patient again every two years to establish if this illness is persistent, progressive or improving. It should be noted your client greatly enjoyed his employment, was obviously very good at it, wants to get back to this work that provided him not only with a good income and intellectual stimulation but also with great social enjoyment. As noted, he has no personal gain in not returning to work. He is simply incapable of returning to work now or in the foreseeable future due to limitations observed in CNS function.

 

PHYSICAL EXAMINATION

This examination and history-taking and review lasted four hours with your client, Mr. Pierre Martel.

 

General appearance:

He was extremely pale when he arrived in the office at 8:30 a.m. However, by the time of completion of the examination and review at 11:30, four hours later, he looked incredibly ill with a ghastly pallor more like a zombie. By the end of the interview, he was tripping over his words and he gave the impression of someone of below normal intelligence. It was my impression that this man is a bit of a perfectionist and concerned with details, and he appeared quite embarrassed by these considerable faults. He prides himself on his linguistic abilities, but by the end of the interview, which was carried out entirely in French, he was making gross errors that even I with my limited French abilities could observe. It is this radical change and degradation in apparent intellectual and physical abilities over a period of four hours that is the most telling feature of this physical examination. It is true that the patient had driven from Quebec City to Ottawa the previous day and was tired from the trip, but he had also slept the entire night for 12 hours prior to seeing me.

 

He walked normally when he first arrived, except for his wide leg stance, suggestive of cerebella or other proprioceptive dysfunction. This imbalance was particularly evident at the end of the four-hour interview and examination. He actually stumbled, bumping into the door when he left my office and he tripped on the staircase going upstairs. Obviously, Mr. Martel was not capable of making valid judgements of speed and distance in this exhausted state. He had lost much of his physical equilibrium by the time the four-hour period had elapsed. I was so concerned he might have an accident or become lost that I offered him a bed or the couch to sleep on before he set off to drive to his hotel.

 

Ophthalmology

No argyle Robertson pupil, but he does have mild bilateral anisocuria or bounding pupil, but it is not overly dramatic. His pupils actually dilated when examined with ophthalmoscope. Fundi appeared normal. He has mild nystagmus. None of these findings are of necessary medical significance, but could indicate an extreme normal variation or mild brain injury in the areas of the optic nuclei.

 

Neuro-muscular

There is no tremor, cogwheel movement of legs on straight leg-raising. There is an abnormal Romberg test. He is unable to stand with his feet together and his eyes closed without falling over. He cannot stand toe-to-heel without falling. His other cerebella function tests were normal including alternate finger-nose and finger-finger examination.

Conclusions of physical examination

It is interesting to note my interview was about four hours in length and he started off with considerable energy. But by the end of the session, he appeared to be falling asleep and his words were rambling and confused. He was so exhausted by the end that I was actually concerned for his welfare in driving and offered him a place to sleep until he felt better. I did not feel he should be driving at that point. However, he stated that he usually never allowed himself to work so long as he had today and when driving, he routinely parked his automobile off the road and slept when he was exhausted, not so much out of prudence but out of inability to continue.

 

The abnormal physical findings were as follows:

1.        rapid degradation of verbal and physical skills during a 4-hour interview and examination;

2.        positive Romberg Test suggesting CNS pathology;

3.        hypertension and abnormal pulse pressure responses, suggesting neurally-mediated cardiovascular response that could be the end cause of his fatigue syndrome;

4.        mild bilateral anisocoria, suggesting changes in subcortical brain nuclei;

5.        crimson crescents observed routinely in CFS and considered to be a marker for his syndrome;

6.        unusually thin hand and foot dermis, suggesting chronic decrease in physical activity consistent with patient history of long-term inactivity;

7.        weak adduction of leg muscles, unexplained.

 

General impression

Pierre Martel fell ill with mononucleosis-like illness in 1976, from which he recovered but retained multiple CNS-type sequellae that are noted in this report. This would suggest an on-going immune and/or CNS injury arising from this initial illness.

 

Although he was diagnosed with infectious mononucleosis in 1976, the characteristic benchmarks of infectious mononucleosis are absent and it is possible that he acquired another immune suppressive illness that was felt to be infectious mononucleosis. It is most unusual for mono to last longer than six months, and is most rare for sequellae to extend beyond two years. It is possible this initial illness was the primary encephalitic illness that sensitized him for subsequent neurotropic infections.

 

His illness that started in 1983 was typical of classic Chronic Fatigue Syndrome despite the fact that the illness was not described in the medical literature as such until 1988.

Conclusions

Pierre Martel is an individual with a serial history of repeat CNS encephalopathy who then developed an acute encephalitic process in 1993 that left him with measurable brain dysfunction as observed in 1997 at Hôtel Dieu de Montréal’s Nuclear Medicine Department. This patient has a history typical of what would be anticipated in persons with an encephalopathy involving frontal, left temporal and left parietal lobes. This type of brain function pathology would explain incompetence in the areas of language function, an area in which Mr. Martel was specifically employed.

 

This report is not based upon a full assessment. Although I believe we have demonstrated reasonable cause for his debilitating disease, it is my belief Mr. Martel also has significant subcortical damage and this can only be assessed at the UCLA PET scanner in California at an approximate cost of $2,000 plus transportation. I am also not happy with the persisting unexplained blood discrepancies noted in this patient and their relationship to his exhausting illness. Although this anemia is seen routinely in chronic illness and is typical of Anemia of chronic illness, one cannot exclude a malignant disease either of blood forming tissue or of chronic blood loss. I believe he requires a more detailed visual evaluation of the gastro-intestinal tract.

I hope this information has been of help to you and your client. It was a pleasure to see him for you and should the need arise in the future, I would be happy to re-evaluate him.

 

Yours sincerely,

Byron Hyde, M.D.

 

 

Dr. Hyde said he sincerely doubted Mr. Martel would be able to resume working some day. He is also convinced Pierre Martel has brain damage but said the cause of the damage is not known. He also said there is no doubt that he has CFS, which is an illness, that is, a condition of the body or a part of an organ of the body which has a functional problem. Moreover, he said, it is a terrible illness. He said he is absolutely convinced Mr. Martel is not someone who invents his symptoms.

 

Concerning treatment for a person suffering from CFS, Dr. Hyde said he has tried several things but has not found anything useful. According to him, cognitive behavioural therapy can in no way solve vascular problems in the brain, such as presented in Mr. Martel.

Testimony of Dr. Louis Couture

Dr. Couture is an internal medicine specialist and is head of internal medicine at Centre hospitalier universitaire de Québec.

 

Dr. Louis Couture saw Pierre Martel for an expert consultation at the request of CARRA in order to evaluate the degree of his disability and its probable duration. This meeting lasted from 2:35 to 3:15 p.m. The interview took place without problem and Mr. Martel appeared very organized, and he appeared with his papers to which he did not refer most of the time. Before the interview, Dr. Couture reviewed a voluminous medical file concerning Pierre Martel that included various evaluation notes and disability reports as well as several laboratory test results carried out in preceding years. Also included in the file were consultations in microbiology carried out by Dr. Suzanne Lambert and Dr. Guy Morin, as well as a 1983 consultation by hematologist Dr. Jean-Marie Delage.

 

Dr. Couture recalled Pierre Martel had said he presented a state of chronic asthenia in association with a decrease in concentration. Concerning previous history, Dr. Couture noted Mr. Martel had infectious mononucleosis in 1976 and that there were no other medical or surgical events.

 

It is useful to reproduce the following passages from Dr. Couture’s expert report:

 

Mr. Martel complains of a state of asthenia, which has been variable since the mononucleosis episode in 1976. He stopped working on numerous occasions for this reason in recent years.  This included a two-year work stoppage from 1983 to 1985. From 1985 to 1992, he got along very well without asthenia and while being very active. A state of asthenia has reappeared since 1992. In 1992, suddenly one afternoon, he had a feeling of great fatigue. A friend had to drive him home. It turned out to be a prolonged work absence. More recently, he worked from February 1996 until the beginning of September 1996. The asthenia reappeared in May 1996. It was a constant asthenia. He occasionally presents a slight sensation of hyperthermia, with a temperature of up to 101. He experienced two days of hyperthermia at the beginning of September. However, he has no specific symptoms. He presents a very slight photophobia occasionally in association with a slight cephalalgia. He has a mild feeling of nausea when he’s feeling tired. He has difficulty concentrating on intellectual tasks. His weight is perfectly stable and his appetite is steady. He has not had any night sweating in recent months. He does not have any visual trouble. There is no pharyngeal pain. He has noted any cervical adenopathy. He has no cough, expectoration, dyspnea, or hemoptysis. He has no thoracic pain. He has no palpitations. There has been no vomiting. There is no abdominal pain and stools are normal. There is no rectalgia or melaena. There are no urinary symptoms. There has been no myalgia or arthralgia or articular swelling. There are no neurological symptoms.

It is mentioned in the file on numerous occasions that he presents a chronic fatigue syndrome. Since 1983 at least, there is a leukopenia, which is variable but which disappears frequently. Also noted in a chronic way is the presence of atypical lymphocytes with a lymphocyte percentage of 40 and 50%. This has not changed over recent years. In September 1996, I note that white blood cells were at 4.1, hemoglobin at 146, platelets at 145, reticulocytes at .006, sedimentation rate at 2.41% of lymphocytes, 39% of neutrophils, and 2+ of atypical lymphocytes. Atypical lymphocytes were also noted in 1994. Complete blood tests done recently, including hepatic work, were normal. Thyroid function was investigated and the result was normal.

 

Over the last few years, homeopathic treatments were prescribed for him with mitigated results. Currently, Mr. Martel says he is incapable of being active. He goes out very little because he tires easily. He has no physical activities except walking for short periods.

The physical exam was normal. Blood pressure was 120/70 with a heart rate of 72/min and a regular rhythm. His height is 1.68 m and weight is 72.7 kg. There is no hyperpigmentation, no jaundice. An examination of the neck showed no adenopathy and the thyroid gland was normal. There was no carotid murmur. Cardiac examination showed no murmur and no abnormal sound. The jugular veins were not distended. Pulmonary exam was normal. An abdominal exam showed no visceromegaly. I paid special attention to the spleen, which was normal. There was no mass formation. There was no inguinal adenopathy. There was no axillary adenopathy. Neurological exam was normal. Articular exam was normal.

 

This patient presents the following problems:

Asthenia and variable and chronic concentration difficulties. Patient history does not lead us to any diagnosis of infectious disease or neoplastic illness. It is important to note that this problem has evolved since 1976 and that the physical exam still remains normal.

The laboratory anomalies that have been noted must be interpreted in light of the clinical. Indeed, the decrease of CD-3 is not significant. Moreover, there is a very slight leukopenia which is chronic with a variation in the number of white blood cells, whose number is often normal. The presence of atypical lymphocytes has also been noted for a long time.

In light of the history and the physical exam, there is not any evidence of an organic illness that might explain asthenia or concentration difficulties.

 

Given the clinical evaluation, there is not any evidence of organic illness in this patient in light of history, the physical exam, and the laboratory exams.

 

Thus, this patient cannot be considered to have a total inability to perform his functions. I make no restrictions or limitations in terms of his normal job.

The current follow-up provided by his family physician appears to me adequate. Support therapy is worth continuing.

 

This patient is thus fit to return to work as of November 22, 1996.

 

Dr. Couture stated that the percentage of lymphocytes noted with Mr. Martel represents the below normal limit, which is not significant, given the history. As for the rate of reticulocytes at .006, he noted this is a decrease but does not indicate any problems when considered with the rest of the examination. As for the presence of atypical lymphocytes, if it is noted repeatedly in the patient, without discovering any illness, it is due, according to Dr. Couture, to the product used in the tube for sampling (DTA). According to Dr. Couture, the neurological exam was normal, as much as for the higher cerebral functions (memory, judgement, time orientation, etc) as for muscular strength, sensitivity, reflexes, and awareness.

 

During his testimony, Dr. Couture was called upon to give his opinion on certain aspects of the medical reports and the testimony of Dr. Hyde. Dr. Hyde said that Mr. Martel presented an A.N.A. (antinuclear antibody), positive at 1/80 and “pattern-speckled, also at 1:40”, which causes an autoimmune problem often seen in the case of chronic fatigue syndrome. According to Dr. Couture, this is not significant because 5% of normal persons have this result as well as 25% of older people. Concerning the “pattern speckled”, he emphasized this did not reveal anything. Dr. Couture also stated that a blood pressure of 140/97, as found with Mr. Martel, was nothing significant and amounted to an isolated result.

 

Dr. Couture explained he did not know the “Borno virus”, which Dr. Hyde discussed in his October 10, 1997 report. He said he had undertaken research on the subject but had not found anything. He also expressed an opinion about Dr. Hyde’s statements on the following results: Leukopenia 3.5, neutrophils 1.6” on page 3 of the October 10, 1997 report. According to Dr. Couture, these results must interpreted in the light of the clinical results; they are slight anomalies which are not significant.

 

On the question of the HHV6 virus, Dr. Couture explained this is the Epstein-Barr virus, the virus of mononucleosis. As for the “possible cardiovascular timing abnormality” discussed by Dr. Hyde, Dr. Couture gave the opinion that this is very frequently a symptom which is not significant.

 

Dr. Couture was also asked his opinion on the fact Dr. Hyde had identified six or seven abnormalities in Mr. Martel. There are not any diagnostic tests, he said, for chronic fatigue syndrome according to the experts, nor any pathognomonic signs.

On this issue, he referred to an article “The Chronic Fatigue Syndrome: A comprehensive approach to its definition and study”, published in the Annals of Internal Medicine, 1994, American College of Physicians. He pointed out this article was written by a group of international experts on the basis of a consensus about chronic fatigue syndrome.

Dr. Couture added it was clear Pierre Martel has a fatigue problem but that he found no organic illness, according to normal diagnostic criteria.

 

Referring to treatment of chronic fatigue syndrome, Dr. Couture explained he sees a lot of tired patients but that he does not follow CFS patients. However, according to the article cited above, he said no definitive treatment of CFS exists. One can try anti-depressants, he said, but there is a greater tendency to direct patients towards psychotherapy, a treatment of psychosocial rehabilitation.

 

According to Dr. Couture, there is general agreement the accent must really be placed on rehabilitation instead of long-term disability.  He would be certain to refer his patient to a psychiatrist with a particular interest in CFS who could use behavioural cognitive therapy accompanied by a specific follow-up plan with the help of a multidisciplinary team. It is thus an extremely difficult treatment. On this issue, Dr. Couture referred to an article by David C. Klonoff from the review “Clinical Infectious Diseases” in 1992. Thus, for Dr. Couture, a person who suffers from CFS is above all someone who is not disabled over the long-term.

 

In cross-examination, Dr. Couture emphasized the current state of medicine does not allow the cause of CFS to be identified; rather, it is defined by symptoms. He admitted that Mr. Martel presents symptoms that generally correspond to the definition of CFS, while pointing out that he did not examine him on this basis.

Testimony of Dr. Raymond Laflamme

Dr. Laflamme is a specialist in internal medicine and occupational health. He has acted as an expert for about 30 years for different businesses and has been head of health services for several organizations.

 

He examined Pierre Martel February 6, 1997 for a little more than one hour, and he completed a report, from which excerpts follow:

 

Current symptoms

Mr. Martel brought me a sheet outlining all the symptoms he has had in recent years and which persist: headaches with pressure behind the eyes, photophobia, epigastralgia for which he has stopped drinking alcohol, coffee, and chocolate, nausea caused more by exhaustion than by digestion and which appears most often after physical effort such as a walk or intellectual effort such as reading that requires concentration, skin sensitivity as if he had a sunburn, dizziness, significant decrease in concentration, very sensitive to noise and sounds in general, feeling of pressure and congestion between the sternum and vertebrae, and disrupted sleep patterns and frequent  waking up. He told me his nights last on average 11 to 12 hours but in spite of that, he often feels tired upon waking.

 

In addition to the anti-depressant medication he has received, he has tried acupuncture, homeopathy, energy fields, mega doses of antioxidants especially vitamin E, vitamin C and vitamin B6. As well, last year he began replacing his amalgam dental fillings as a last resort, he said, because of reports of low-dose mercury poisoning from such fillings. Half of the dental work was done last Fall during two visits to the dentist and he must go again in February. He was very physically active in the past, doing Nautilus training, and in his younger years was even Quebec champion in power-lifting, a kind of weight-lifting.

He is not taking any medication at the moment, having stopped taking antioxidants recently. As mentioned above, he resumes dental treatments in February.

 

He sees Dr. Sandra Del Degan regularly every two to four weeks. His last visit was January 21, 1997.

 

Physical examination:

42 years old. General condition excellent. He speaks slowly, responds well, smiles rarely. He has long hair and a beard. His height is 1.67 meters and he weighs 74.6 kilos; his normal weight is 155-160 pounds.

 

Conjunctiva of normal coloration. No jaundice. Throat normal; no cervical adenopathy. Thyroid volume normal. No carotid murmur. Blood pressure: 130/80. Pulse: 66 regular. Cardiac and pulmonary auscultation normal. Abdomen supple and no pain. There is no mass formation or visceromegaly. No axillary or inguinal adenopathy.

 

He is very muscular, which he explains are from the frequent exercises he did, particularly in weight-lifting.

 

Conclusion

No organic medical problem was detected to explain the fatigue and concentration problems that he experiences.

 

He has been at work since the end of November 1996 and he tells me that given his concentration problems, his performance is very poor. I believe however it is very important that he be at work and that it would be important as well if he restarted physical conditioning to improve his resistance. There is no indication in my opinion requiring further investigation.

 

He did take anti-depressants on four occasions for periods of less than six weeks. There is indication perhaps that he take them again but for longer periods because we know these medications take several weeks before they begin to have a therapeutic effect. If he were taking anti-depressant medication, he would not in my opinion be prevented from doing his regular work.

 

Incidentally, between July 1994 and today, he has recorded his daily level of fatigue on a graph, of which I include a copy.

 

In brief, he can work and is not under any job restriction.

 

For purposes of the exam, Dr. Laflamme had the report from Dr. Couture. Results from the exams ordered by Dr. Couture, he said, do not indicate anything unusual. The fact that lymphocytes were slightly higher than normal is not particularly revealing, he said, and does not have any pathological significance. He also took into account the results in the report by Dr. Lambert and concluded these results were not significant. In his view, the overall exams were normal or almost, and it was not necessary to proceed with other tests.

Dr. Laflamme stated he did not note Mr. Martel had any memory or concentration problems, nor did Mr. Martel report any incident of memory loss.

 

He also explained that CFS is a very controversial issue in medicine, but that the most widely recognized priority treatment is a return to work, with most physicians agreeing that a stoppage of work is not at all indicated. According to Dr. Laflamme, the patient must be reconditioned, followed in psychotherapy so that he learns how to live with his problem, and prescribed anti-depressants over several months as well as anti-inflammatories for those patients with muscular pain. Psychotherapy should be behavioural in approach in order to encourage the patient in his reconditioning. Given that CFS is a poorly defined, complex problem for which there is no treatment, everything must be tried in order to help the patient break out of the vicious circle in which he finds himself.

 

Finally, Dr. Laflamme stated he did not question the fact that Mr. Martel suffered from CFS. He said he meets the definition of CFS.

Testimony of Dr. Jean Lafleur

Dr. Lafleur has been a specialist in neurology since 1976. He is currently Head of Neurology at the Centre hospitalier universitaire de Québec, and is involved in both research and teaching.

 

Dr. Lafleur examined Pierre Martel December 11, 1997 at the request of the employer. The examination lasted about 90 minutes. He completed his expert report January 6, 1998. Excerpts follow:

Objective observations

At the interview, the individual appeared his age. He presented no obvious memory difficulty. He is fully capable of dating important events in his life. He is well oriented in the three spheres. He has not particularly been slowed psychically. He does not appear particularly pale or emaciated.

 

In addition, there is no evidence of dysphasia or dysarthria.

 

Upon examining his walk, no polygonal increase is noted. Straight-line steps are made normally. The individual can walk heel-to-toe and on his toes without difficulty. Romberg test is negative, as is that of Serment.

 

Cranial examination shows the back of the eye is normal. The pupils appear equal, reacting symmetrically to light. Ocular movements are complete. There is no restriction in visual fields. There is no facial asymmetry or loss of hearing. The tongue did not deviate during protrusion.

 

Upon examination of segmental muscular strength, it is noted the individual’s upper limbs easily give way under force, which usually indicates a non-organic weakness.

 

The finger-nose test is completed normally bilaterally and there is no dysdiadokinesia.

Sensitivity is normal and symmetrical for all movements of the four limbs. Osteotendinous reflexes are all normal and symmetrical, and there is bilateral plantar flexion.

 

Discussion:

A)     Clinical issues

Not only did clinical examination not indicate any signs that might suggest a significant systemic or debilitating illness, but also neurological examination proved objectively normal. In the course of this exam in particular, no evidence indicated any deficiency in higher cerebral functions or any deficiency affecting the language sphere.

On the other hand, the fact that under examination, a weakness is apparent under abrupt or forceful movement of the upper limbs makes one believe there is a non-organic weakness. Indeed, with an organic weakness, we do not find such a clinical presentation.

In brief, there is thus no evidence of serious illness and no evidence of encephalopathy or dementia.

B)      Tomoscintigraphy results. I will emphasize as well in this discussion certain conflicting elements raised by the reading of the report by Dr. Byron Hyde.

 

The cerebral tomoscintigraphy performed June 10, 1997 at the nuclear medicine department of Hôtel Dieu Hospital in Montreal was interpreted in the following way by Dr. Jean Léveillé: “in comparison with the study of February 17, 1997 and in spite of a slightly different technique, it must be reported that late phase study shows a decrease in bilateral frontal activity, more pronounced on the left side, or on the right side involving an extended deficiency at the level of the temporo-parietal cortex also with left side predominance.

 

Activity related to other structures is within the limits of normal.”

 

The cerebral tomoscintigraphy performed February 17, 1997 proved, on the contrary, to be fully within normal limits. Dr. Jean Léveillé also interpreted this examination, after utilization of the same product.

 

It is perhaps important to mention that the manner in which the technique is slightly different in the second examination is not precisely identified.

 

1)       I must first of all point out in all humility that I cannot pretend to be a specialist in nuclear medicine. I have not done any studies in this field but I know for a fact the cerebral tomoscintigraphy is not a technique commonly used right now to detect pathologies of the central nervous system. In fact, a recent study in England demonstrates this procedure is ranked 18th out of 20 among procedures used to detect any cerebral pathologies.

 

While not being a nuclear specialist, I am nevertheless a bit surprised to see that these two examinations performed four months apart produce results that are, to say the least, conflicting. The first is completely normal while the second shows a decrease in activity, particularly in the frontal bilateral regions, more so on the left side.

In addition, Dr. Jean Léveillé did not mention from the June 10, 1997 exam if this decrease in activity is slight, moderate or very significant. If the decrease is slight, perhaps one should not take it too much into account.

2)       Indications from Technetium TC-99m (neurolite)

The scintigraphy using the product mentioned above is indicated for the evaluation and localization of abnormalities in regional cerebral activity that are associated with certain well-identified central nervous system illnesses, such as cerebro-vascular accidents, epilepsy, cranial trauma, cerebral tumours, and dementia. Other clinical applications of this product have not yet been clearly documented.

3)       Numerous factors could influence the result of a cerebral tomoscintigraphy. Among them are environmental conditions at the moment of administering the product as well certain characteristics of the subject. In addition, age, the degree of anxiety, the time of the day when the examination was performed, and the attention of the subject could all produce certain changes leading to variations in the interpretation of the images. It is also said that consumption of caffeine, for instance, could lead to a reduction of cerebral blood flow. Thus it seems we are not yet able today to perform such examinations under optimal standardized conditions.

 

4)    Non-specificity of SPECT

In his report, Dr. Byron Hyde mentions the cerebral tomodensitometry and cerebral magnetic resonance tests proved to be completely normal. However, such technical examinations are highly sophisticated and normally they allow us to detect most central nervous system pathologies. It is also surprising to see that in the course of his investigation, he does not mention if the individual in question had undergone an electroencephalogram or neuro-psychological tests. These two exams, if they had been done and reported as normal, would have also allowed the exclusion of possible central nervous system pathologies. In particular, the neuro-psychological tests would have helped detect the presence or not of cognitive insult.

 

In summary, the clinical and neurological examination does not indicate evidence of organic illness in this individual. Moreover, we believe the images from the tomoscintigraphy do not allow us to establish a precise diagnosis and especially not a diagnosis of chronic fatigue syndrome exhibited by concentration difficulties. Thus we see no objective element, from a neurological perspective, that would prevent Mr. Martel from performing paid work.

Dr. Lafleur admitted he is not particularly interested in CFS and has seen very few CFS patients and that none of them presented a brain hypoperfusion.

 

For Dr. Lafleur, Pierre Martel is thus neurologically fit, given that it is impossible, according to the results of a normal examination, to conclude otherwise.

Testimony of Dr. Denis Bourbeau

Dr. Bourbeau was asked to testify in order to present the Quebec College of Physicians guidelines on CFS. He was coordinator of the committee while serving as head of professional inspection and Secretary of the College. He has been a physician since 1959 and specialized in general surgery. He worked with the College of Physicians from 1986 to 1997.

 

Dr. Bourbeau explained that guidelines represent a position taken by the College in order to help physicians in their practice in cases where there is a conflict of opinion. Guidelines are not regulations to which physicians must adhere. But a physician must have good reason to not follow guidelines issued by the College and distributed to all physicians.

As the person in charge of the CFS committee, Dr. Bourbeau was primarily responsible for selecting committee members, who included two bacteriologists, a psychiatrist, a psychologist, a general practitioner specializing in fibromyalgia, and an endocrinologist. All had between 10 to 20 years’ experience, with the exception of the general practitioner.

Dr. Bourbeau emphasized the directive is the result of a committee consensus. The committee undertook a review of the literature and heard representative associations of CFS patients. He also pointed out the guidelines were adopted by the College’s administrative committee and will be published. Following are excerpts from the guidelines:

 

1. INTRODUCTION

Chronic fatigue syndrome (CFS) is a complex entity that has probably existed for a long time and whose etiology for the moment remains unknown. Similar conditions were described in the 18th , 19th, and beginning of the 20th centuries, and were variously called “fébricule”, Da Costa syndrome, and neurasthenia. More recently, CFS has been called “Post Viral Fatigue”, the chronic disease Epstein-Barr, and “myalgic encephalomyelitis”. In 1988, Holmes et al proposed the current term “chronic fatigue syndrome”.

 

This syndrome, which still requires a diagnosis of exclusion, is characterized by prolonged fatigue, lasting a minimum of six months, perceived as incapacitating and often exacerbated by physical exercise. Often, it is accompanied by subjective symptoms and non-specific clinical signs such as myalgia, cognitive difficulties, sleep disruptions, slight pyrexia, non-exudative pharyngitis, and occasionally incidents of psychological distress.

While many clinical manifestations of fibromyalgia can be superimposed on those of chronic fatigue syndrome, and while the diagnostic and therapeutic approach to them both can often be similar, this document will deal only with chronic fatigue syndrome. It is designed to be a summary of current knowledge and will serve as a guide for physicians in their investigation, diagnosis, and treatment of affected patients. It should also help health professionals to provide precise information to patients about current knowledge, so they can reassure them and dispel all the unfounded ideas often connected to CFS.

 

4. ETIOLOGY

Many hypotheses have been raised, that it is infectious, immunological, neuro-hormonal or psychological. In spite of these hypotheses, the etiology of chronic fatigue syndrome remains for the moment unknown.

4.4 CONCLUSIONS

Since all the research aimed at incriminating a particular infectious agent has failed, and in the face of an absence of objectifiable elements to explain the significance of symptoms reported by patients, it is difficult to envisage an etiology that is exclusively organic. This is especially so since the fatigue and the multiple somatic symptoms medically unexplained that are present in CFS also prove to be diagnostic criteria for several psychiatric disorders.  The most widely accepted model at the moment is that an ensemble of multifactorial components is at the origin of CFS.

The association of predisposing, triggering, perpetuating, and exacerbating factors among certain individuals is one of the most plausible theories for the understanding of clinical manifestations of CFS.

5. Medical evaluation

As CFS remains a diagnosis of exclusion, the physician is obliged to proceed with a meticulous physical examination in order to detect any signs of organic or psychical insult for which a treatment exists. Such a meticulous examination will aid in establishing a therapeutic alliance. Most often, a physical exam of a person with CFS will not reveal any objectifiable abnormality.

6. Differential diagnosis and baseline investigation

Certain medical conditions can mimic in part or entirely certain symptoms present in CFS. A list of these conditions is found in Table 3.

It is important to emphasize that no specific biological test exists to diagnose CFS. No specific abnormality in terms of biological parameters has been detected besides the discrete biological abnormalities raised in the section dealing with neuro-hormonal factors and whose significance remains a subject of research.

No other biological analysis is necessary unless clinical history suggests another diagnosis. There is no indication to undertake specialized serological, immunological, or imaging (radiology and nuclear medicine) analyses in patients suspected to have CFS. Viral serologies (hepatitis B and C, and HIV) can be requested only if the clinical situation justifies it, i.e. presence of risk factors/probable exposure.

In the event of a significant abnormality in baseline biological tests, an appropriate investigation in a clinical context must be undertaken.

7. Treatment

7.1 General principles

 

The therapeutic approach is based on the establishment of a good therapeutic alliance. After establishing a diagnosis and transmitting the pertinent information to the patient, the clinician will reassure the patient. An empathetic clinician could limit demands for excessive consultation and investigation that frequently arise in such situations. Ideally during the course of visits, the physician will come to know the patient well; he will be able to manage all the medical references for the patient and establish a therapeutic contract to this end.  In true terms, he will be the treating physician.

 

Since a specific curative treatment for CFS does not exist, the role of the physician is to support the patient in his efforts to gradually resume his activities in all spheres of daily life. Too often, patients run up against a refusal on the part of the physician to assume responsibility on the pretext that no proven effective therapy can be prescribed.

9.        Conclusion

Chronic fatigue syndrome is complex and constitutes a challenge for physicians treating those patients who suffer from it. In spite of the presence of well-defined diagnostic criteria, it remains a diagnosis of exclusion. As well, current knowledge does not allow identification of the etiology.

The physician who has made a diagnosis of chronic fatigue syndrome must ensure there is regular and sustained follow-up.

Therapeutic objectives must be realistic and talked over with the patient, and above all must aim to achieve the best quality of life possible for the patient, rather than the disappearance of symptoms. To this end, the physician must encourage the maintenance of as many activities as possible and to propose, as needed, a modification of certain habits in order to adapt to the fatigue. In certain cases, adjunctive medication to relieve a particularly incapacitating symptom may be envisaged.

While fully recognizing the validity of symptoms, the physician should support the patient in efforts to resume activities in all aspects of his life. Finally, to avoid an impasse, the clinician should adopt a global approach in which the quality of the physician-patient relationship plays a preponderant role.

Dr. Bourbeau emphasized that CFS does not figure in the Geneva classification of diseases as it is a syndrome and not a symptom, which does not signify that people with CFS are not sick. He does not consider himself an expert on CFS.

Testimony of Sheila Bastien

Dr. Bastien completed a doctorate (Ph.D.) in clinical psychology at West Virginia University in 1974. She pointed out that one of the university’s strengths is its program in cognitive behavioural therapy. Since 1981, she has been president of Psychological Corporation of Berkeley, California which offers neuropsychological diagnoses and psychotherapy for people suffering from neurological disorders, such as head injuries. As well, the Corporation undertakes research on the neuropsychology of CFS and toxic encephalopathy.

 

Dr.. Bastien teaches at the University of California at Berkeley (evaluation and treatment of CFS and fibromyalgia). She is a member of the editorial committee of the Journal of Chronic Fatigue Syndrome, National Academy of Neuropsychology, and she has been recognized as a “qualified medical examiner for the State of California” since 1993. She is also a member of several professional and research associations, has made a number of presentations about CFS, and published several articles in this field.

 

Dr.. Bastien pointed out that most of her practice deals with neuropsychology, with a particular interest in CFS. Since 1986, she and members of her clinic have evaluated about 2,000 people suffering from CFS. She is, she said, more of a clinician than a researcher.

Ms. Bastien explained that neuropsychology is a specialized field of psychology which evaluates the functioning of an individual according to several parameters, such as memory, intelligence, motor functions, and capacities at abstraction, using a series of tests called Halstead-Reitan Neuropsychological Battery. Thus, the neuropsychologists use different tests to examine the functions of diverse parts of the brain. These tests include standards that are weighted according to age, sex, and schooling.

 

Dr.. Bastien evaluated Pierre Martel February 15 and 16, 1998 at her office in Berkeley and each test period lasted several hours.

 

During her testimony, Sheila Bastien gave a detailed explanation of the test results for Mr. Martel. There is no need to report these explanations. However, it is useful to reproduce excerpts from her report (exhibit S-39):

 

I noticed he had a very nice sense of humour. He was neither clinically depressed nor suicidal. He occasionally forgot the questions I asked him or lost his train of thought. His drawings were very careful and precise on the Bender Gestalt, but he had a terrible problem understanding words. I had to rephrase and demonstrate fairly simple instructions in English, so he could perform the requisite tasks. I spoke slowly and interspersed French, but he still had difficulty.

 

BEHAVIOURAL OBSERVATIONS

He felt dizzy on the second day of testing; but he was still able to complete testing. His performance did not vary that much from one day to the next. I noticed he had difficulty describing things either in English or French, especially on the Vocabulary task. “It is very frustrating. I know the thing but I can’t explain it.” He reported his math has deteriorated also. I noted he was very slow to test because I had to repeat instructions several times.

 

SUMMARY AND CONCLUSIONS

Both the medical records and the neurocognitive findings point to a central nervous system disorder as well as other physical disorders discussed by this physician. The neurocognitive findings are also consistent with bilateral brain dysfunction, worse in the left hemisphere. Mr. Martel has severe expressive aphasia as well as some receptive dysphasia. Expressive aphasic abnormalities are correlated with left frontal lobe abnormalities. Lateralization of motor functioning suggests a right frontal motor abnormality in the absence of peripheral injury. However, the problems with left hemisphere language are more pronounced. He has more serious verbal memory abnormalities, which would be correlated with the left temporal lobe abnormalities seen on his SPECT scan. Parietal problems are also suggested on his pattern of abnormalities.

His expressive aphasia was just as significant in English as it was in French. He also had an extremely difficult time with directions, which had to be repeated. But he had less difficulty following directions than generating either English or French.

 

There was a notable gap in his long-term information. Short-term memory and concentration were impaired. He had problems on Vocabulary; his score places him within the borderline range of dysfunction. He clearly had problems expressing himself. Sometimes he would give me the meaning of a word in French. At times, he completely missed the point. He would miss easy items yet answer difficult ones correctly. This pattern is seen in patients with higher premorbid functioning in the past. He forgot simple words, such as “conceal”, “ponder”, “reluctant”, and “remove”. He had problems even when I offered help in French for English words. Notwithstanding this very tedious process, his performance did not improve.

 

There was evidence of serious dyscalculia and confusion on the Arithmetic section of the WAIS-R. He gave an impulsive response; such responses frequently appear when I test patients with frontal lobe disorders and suggest a serious, uncustomary disinhibition. Eye-hand coordination and visual motor speed were extremely slow.

 

Sequencing and speed of processing tests (which usually involve visual scanning) were mild and moderately impaired respectively. A tactual kinesthetic test was abnormal and abnormal when both hands together were used. The performance should have improved; it was pathognomonic for neurologic dysfunction.

 

Motor tests showed some bilateral problems, with lateralizing significance suggested on the left non-dominant hand particularly.

 

He demonstrated serious memory problems. His verbal memory was much more impaired than his visual, a disparity consistent with the SPECT scan findings. His problems ranged from moderate to severe on verbal memory while only a mild abnormality was found on visual memory.

 

Of greatest note perhaps, he had serious problems on the Thurstone Verbal Fluency Test, both English and French. Within the moderate range of impairment, his score places him very close to the moderate-severe range of impairment. With this kind of impairment, he could never work as a linguist. Such language problems are reiterated on the Differential Aptitude test, where he demonstrated very serious problems with language usage spelling, abstract reasoning, and verbal reasoning, as well as perceptual speed and accuracy. He also has problems with inference tasks. He was unable to sort out quickly the essential from the background inference.

 

All the neuropsychological tests are consistent with the SPECT scan abnormalities, and many impaired areas would make it impossible for him to function as a linguist. However, the most notable are his extremely poor verbal fluency and his deteriorated verbal memory.

In summary, it is my opinion Pierre Martel is totally and completely disabled from his own employment as a linguist specialist at the present time or for the foreseeable future, and this is based on multiple areas of disability.

 

DIAGNOSIS

      DSM-IV

Axis I: 294.9 Cognitive Disorder, secondary to organic brain disorder (abnormal SPECT scan, encephalopathy), secondary to fatigue syndrome.

Axis II: V71.09 No diagnosis.

Axis III: Per medical records.

Axis IV: Stresses: severe. Ill health, cognitive problems, financial problems, and unemployment.

Axis V: Current GAF*: 50

1. *Global Assessment of Functioning Scale: ranges from 90 (absent or minimal symptoms) to 1 (gravely serious condition).

 

RECOMMENDATIONS:

1.        I am very concerned about this young man, and I would recommend that he be followed with repeat MRI’s (and other scans as indicated) as well as neurological follow-up to rule out progressive disorder. B12 and Folic Acid levels should be evaluated.

2.        If a referral is needed in Canada, I am familiar with the excellent work of Christopher Wallace, MD neurologist.

 

 

According to Ms. Bastien, behavioural cognitive therapy is not useful in the case of Pierre Martel. It is used for people with behavioural problems, while CFS is not a behavioural problem. This type of therapy does not help solve brain problems, which is the case with Mr. Martel. There is currently no treatment, she said, for CFS and the type of brain problems present in Mr. Martel.

 

According to Ms. Bastien, the results obtained by Mr. Martel and their pattern may indicate problems other than CFS but they are not incompatible with CFS. She also pointed out that the fact these tests were mostly administered in English did not have an appreciable influence on the results.

Testimony of Ms. Maryse Lassonde

Ms. Lassonde completed a doctorate (Ph.D.) in psychology, specializing in neuropsychology, in 1977 at Stanford University in California. The doctorate included a minor in neurological science, with some of the courses given by the Faculty of Medicine.

From 1977 to 1988, Ms. Lassonde was psychology professor at the Université du Québec à Trois Rivières. During the same period, she founded and directed the clinical neuropsychology unit at the Sainte Marie Hospital center in Trois Rivières. In 1988, she became professor at the Université de Montréal, where she is head of the training program in clinical neuropsychology. She has acted as neuropsychology consultant for several organizations. In 1996, she was named expert in neuropsychology by the Order of Psychologists. Ms. Lassonde is a Fellow of the Canadian Psychology Society and member of the Society’s committee on psychology training programs, and in particular those in neuropsychology. She is also the only non-physician member of the Quebec Society of Physician Experts.

 

Ms. Lassonde has also written two books, about 20 book chapters, and about 60 articles, and made some 200 presentations around the world on neuropsychology issues.

 

Ms. Lassonde has maintained a private office practice for 20 years and provides expert consultations for employers and employees. She has evaluated four people with CFS.

 

Ms. Lassonde testified the employer gave her the mandate to evaluate the neuropsychology report by Ms. Sheila Bastien. To this end, she received Pierre Martel’s job description, his attendance record, the curriculum vitae of Ms. Bastien as well as her report, and the reports of Drs. Hyde, Lafleur, Laflamme and others, and the CFS guidelines published by the College of Physicians.

 

She explained that it was not indicated procedure, as Ms. Bastien undertook, to evaluate Mr. Martel in English. She said one must not proceed in this way especially when the individual already has problems. An evaluation done in another language leads to results that are not valid, she said, even when Pierre Martel has a good knowledge of English. This also raises a cultural problem because the results might have been different if the tests had been adapted. According to Ms. Lassonde, the language and cultural factors seriously invalidate the test results. She also emphasized that when one adds in the trip to San Francisco and the stress from two days of tests to these two factors, there was an appreciable influence on the results. Thus the results must be interpreted in light of these factors.

 

Ms. Lassonde said she was astonished Mr. Martel was able to undergo such tests in two days when he says he suffers from CFS.

 

She said Mr. Martel perhaps presents a slight attention problem. He seems slower when he has to use a pen which perhaps denotes a psychomotor slowness which might be explained by depression, an obsessive-compulsive personality, or cerebral injury, which is not confirmed by the tests. Investigation must be continued, she said. She said she was in total disagreement with Ms. Bastien’s conclusion that Mr. Martel presents a “severe expressive aphasia”. In her view, this is a colossal error. She emphasized the conclusion of “receptive dysphasia” is also totally incompatible with Mr. Martel’s results. She said if he had a left frontal abnormality, tests would have indicated it much more clearly. There is nothing in the results either that leads to the conclusion that Mr. Martel is totally disabled, incapable of performing his work. Other tests are required, she said, before such a conclusion can be arrived at.

 

III Arguments

The Union

The union presented the following principal arguments:

The arbitrator’s decision should not pertain to the state of medical science or the issue of chronic fatigue syndrome, but rather on what it is demanded by the grievance, namely, disability benefits. According to clause 8-1.02 of the collective agreement, Mr. Martel has the right to disability benefits because the evidence has established he was in a state of disability. Indeed, he satisfies the three conditions required by this clause, that is, the presence of an illness necessitating medical care and rendering him incapable of performing the normal functions of his employment.

 

First, one must recall the non-expert evidence presented in the testimony of Pierre Martel and France Michel as well as in the evaluation records of Mr. Martel. This evidence is of overwhelming importance as it reveals Mr. Martel’s state of health and what it became.

According to this uncontested evidence, Pierre Martel is a linguist-terminologist who also completed an English teaching certificate, was coordinator and subsequently team leader, and to whom complex files were assigned because of his superior knowledge and synthesizing abilities. He enjoyed the absolute confidence of his immediate superior who knew he would resolve problems and would be dedicated in performing his work. Mr. Martel’s performance has been superior, he was appreciated by work colleagues, and his job recognized as a high-level position. He was in fact an exemplary and exceptional employee.

 

On the personal level, he was an athlete who practiced several sports intensely. He had a rich social life. Overall, Mr. Martel was a well-balanced person who glowed with good health.

 

In 1976, he became sick and he was told it was mononucleosis. At the time, CFS was unknown. He was also sick from 1983 to 1986, and then in 1992-93 when he presented different symptoms such as fever, enormous fatigue, skin sensitivity, photophobia, ocular pain, nausea upon exertion, and sensitivity to noise. He was also sensitive to the cold and showed significant problems in concentrating. He always reported the same symptoms to the numerous physicians that he saw, and Ms. Michel corroborated his testimony in this regard.

 

From 1992 in particular, Pierre Martel suddenly began feeling great fatigue, he was incapable of finishing his workday, and he slept on his desk. His immediate superior noticed a significant drop in performance and advised him to consult a physician. His work colleagues also noticed his poor state of health. From this period, he was never again the same person. He had to stop his sports activities with the exception of short walks which he forced himself to take. He even went through periods where he was unable to prepare himself meals, he no longer saw friends, he went out very little, and went to bed very early. In terms of intellectual activities, he became unable to play Scrabble, follow a film, and he had difficulty reading.

 

The evidence revealed that despite the situation, Pierre Martel was not ready to stop fighting, he was never depressed, he always believed he would pull out of it. He tried all kinds of solutions – homeopathy, diets, acupuncture, chiropractic, and massages. He also took different medications as well as primrose oil. He always followed the advice of his physician and he wants to get better. Meanwhile, Pierre Martel tried on several occasions to resume work, even insisting on this to his physician. On two occasions, he used his vacation time to reduce his workweek. He did not take advantage of the system.

 

All this evidence demonstrates Pierre Martel wanted to work but he was unable to do so. That is the only conclusion one can arrive at from the evidence, which was not contradicted and which was consistent and credible. Moreover, the testimony of Mr. Martel was corroborated by France Michel and Dr. Del Degan.

 

It was also established that for a long time the employer recognized Pierre Martel’s state was disabling. No one ever doubted the problems he experienced between November 1993 and January 1994, and his current health is the same as it was then.

 

As for the expert evidence, six physicians were heard as well as two neuropsychologists. This testimony revealed that chronic fatigue syndrome is an illness whose etiology is unknown but for which there are diagnostic criteria. All the experts recognized or did not deny that Pierre Martel suffers from CFS according to these recognized diagnostic criteria. Dr. Byron Hyde stated that beyond a shadow of a doubt, this is a typical case of CFS, as did Dr. Sandra Del Degan.

 

The testimony of the physicians also leads to the conclusion that chronic fatigue syndrome is an illness, as defined by Le Robert dictionary, that is, an organic or functional alteration considered in its evolution and as a definable entity. Mr. Martel is sick because his health has altered; he suffers from organic or functional problems. The arbitrator need not resolve the scientific debate but rather he must decide that this issue involves an illness in the current sense of the word, and that it is therefore clear that Mr. Martel is sick. Thus this satisfied the first condition of clause 8-1.02.

 

As for the second condition, that is the need for medical care, testimony indicated that Mr. Martel has been followed in a sustained manner since 1994 every two or four weeks. Dr. Del Degan provided him with support therapy, which constitutes medical care recognized by the Régie de l’assurance maladie du Québec (health insurance board). Moreover, one can receive medical care even when the care is not designed to cure, as with the case of a terminally ill patient.

 

The third condition stipulated in clause 8-1.02 is the inability to perform normal work functions. This is the only point where there is potential divergence among the experts. In this case, the arbitrator must weigh the testimony in light of the facts, the expertise, and the criteria of jurisprudence.

 

It must be emphasized that the only physicians heard who have an expertise in CFS are Mr. Martel’s physicians – Dr. Del Degan and Dr. Hyde. The employers’ expert witnesses, Drs. Lafleur, Laflamme, and Couture admitted they were not specialists on CFS. Drs. Del Degan and Hyde then are the only ones qualified on the issue and Dr. Del Degan has followed Mr. Martel regularly since 1994. Dr. Hyde evaluated him over several hours while the physicians speaking for the employer only saw him for about one hour each.

 

These two physicians clearly stated that Mr. Martel is incapable of performing his work due to his illness. The other physicians did not state that Pierre Martel was able to perform his work. Rather they concluded that as the clinical examination was normal, he could not be declared unfit to work. Their examination was not aimed at verifying if he was unfit but rather at determining if there was an organic problem. Moreover Dr. Couture recognized that CFS causes a disability, that patients become handicapped and that a patient with real difficulties in concentration is very disabled.

 

Regarding the neuropsychologists, it must be pointed out that Dr. Sheila Bastien has seen, as an expert in neuropsychology, more than 2,000 cases of CFS, and that she teaches a course dealing with the evaluation and treatment of CFS at the University of California at Berkeley. After meeting Mr. Martel and administering him tests, she concluded he presented significant difficulties in concentration, short-term memory, and verbal fluency. She also concluded there was cerebral insult, that Mr. Martel suffered from CFS, and that he was unfit to perform his work. Thus her expert testimony corroborated that of Drs. Hyde and Del Degan. Regarding Dr. Lassonde, the neuropsychologist called by the employer, she is not an expert in the field of CFS and the most important part of her practice is teaching.

 

Drs. Laflamme and Couture, who are not experts on CFS, favour a treatment of cognitive behavioural therapy. Even if this treatment could give results in the future, the fact is Pierre Martel is disabled at the moment. This type of treatment has not demonstrated its effectiveness, and it presupposes that the patient is depressive, which is not the case of Mr. Martel. On the contrary, he is motivated to return to work and he has already tried to return to work, without success.

 

Mr. Martel underwent an examination (SPECT) which indicated problems of hypoperfusion which is, according to Dr. Hyde, an objectification of the described problems. Moreover, this was corroborated in the tests administered by Dr. Bastien.

 

Regarding the opinion of the College of Physicians on CFS, it must be pointed out this is the opinion of an anonymous committee which has not been published and which is but a position designed to inform physicians in a general way about CFS.

 

The arbitrator must evaluate the testimony based on the rule of preponderance and not according to the criteria of medical science. Given contradictory medical opinions, jurisprudence has recognized that non-expert evidence takes on major significance in the appreciation of the overall evidence. Here, this non-expert evidence was not contradicted; it is credible and consistent.  Pierre Martel is not a pretender, as several witnesses confirmed. He is a person who loves his work, who had an interesting and active life, both professionally and socially.

 

It was also established that Mr. Martel does not have psychiatric problems, that he wants to get better but that the state of medicine is powerless to help him. He has tried all kinds of solutions without success.

 

Given this evidence, the only expert evidence that is consistent is that given by Drs. Del Degan, Hyde and Bastien, who are the only ones to take into account the history, the symptoms, their knowledge of the illness, the sincerity of the patient, and the concordance with the objective elements revealed by the SPECT. Thus this preponderant evidence and the non-expert evidence demonstrate the disability of Pierre Martel.

 

It must also be emphasized that American, Canadian, and Quebec courts have recognized disability as being caused by CFS, as has the arbitration tribunal presided over by arbitrator Marc Boisvert, in the case of the Centre hospitalier Angrignon-Employees Union CSSMM, SA 97-11970, September 9, 1997.

 

Thus, the conclusion is that Pierre Martel was, through the entire period pertinent to the present, in a state of disability in the sense of clause 8-1.02 of the collective agreement and has, as a result, the right to disability benefits.

The Employer

The employer raised the following principal arguments:

 

The union had the burden to prove Mr. Martel was unable to perform his work and that this disability resulted from illness requiring medical care. It was not up to the employer to prove that Pierre Martel was capable of occupying his position.

 

It is necessary firstly to emphasize what the evidence revealed relative to the objective aspect of the problems experienced by Mr. Martel. Five physicians, Drs. Couture, Laflamme, and Lafleur, and the two psychiatrists concluded it was impossible to identify objectively anything in the case of Pierre Martel and thus that he was not suffering from any illness. Even the treating physician, Dr. Sandra Del Degan, did not pinpoint anything.

Only Dr. Hyde, who is not a medical specialist, testified of objective signs, based on non-significant results of certain tests. His conclusions were then refuted by neurologist Dr. Lafleur. Dr. Lafleur also said it was not evident either that the results of the SPECT were significant. Moreover, the physician who analyzed the results of this examination wrote there was “hypoperfusion” without giving any other details.

 

Regarding the opinion of the College of Physicians, it was indicated the SPECT does not allow objective identification of CFS. It is curious that Dr. Hyde speaks of brain abnormalities present in Mr. Martel since 1983, while Mr. Martel had several periods since then when he was fine. As well, if the problem of hypoperfusion were that obvious, there would not have been so much controversy.

 

Regarding the credibility of Dr. Hyde’s testimony, it must be emphasized he is a general practitioner and that he is defending a cause. He has an interest in CFS being recognized. Thus his report must be accepted with a lot of prudence.

 

The evidence has not demonstrated CFS is an illness or that Mr. Martel is receiving medical care. It may not be necessary to have medical care with the goal of recovery, but there must be medical care all the same and the evidence has not established the presence of such care. The support therapy discussed by Dr. Del Degan does not constitute medical care; rather, it is a form of encouragement, or moral support. The experts testified that behavioural therapy would be indicated under the circumstances and even Dr. Del Degan seems favourable to such a therapy. Moreover, it was also shown psychological factors are closely linked to CFS, that there is a possible somatic link as Dr. Lafleur suggested. The psychiatric reports do not indicate that this possibility be dismissed and Dr. Lassonde testified it was possible Mr. Martel presents an obsessive-compulsive personality. Thus one cannot reject out of hand the presence of any psychological factor.

According to the dictionary “Le Petit Larousse de la médicine”, the word “disease” signifies the following: “alteration of health involving a collection of defined characteristics, notably a cause, signs and symptoms, an evolution, and precise therapeutic and prognostic modalities. Disease is distinct from a syndrome and from affectation. The science of disease is pathology.”

 

The parties have chosen to use the words “disease” and “care” for good reason and one must accept them in their full sense. CFS is not catalogued as a disease in the Geneva classification of diseases and it is not recognized as a disease by the College of Physicians. Thus the employer is not required to pay disability benefits; it will be obligated to do so only if CFS is recognized as a disease.

 

Regarding the state of disability of Mr. Martel, it must be emphasized Dr. Del Degan concluded he was unable to work only because of the fact that Mr. Martel told her he was incapable. Regarding Dr. Hyde, he simply gave the opinion that all patients with CFS are unable to work. Regarding the non-expert evidence, it is not sufficient to conclude that Pierre Martel is unable to work. The fact he has demonstrated that he wants to get better changes nothing in the situation.

 

The union thesis cannot be retained because it does not correspond at all with the current state of scientific understanding. There is nothing concerning Mr. Martel that has been objectively shown, and as a result, the fact he is not a pretender has no bearing on this dispute. Even the memory and concentration problems which Mr. Martel talked about have not been objectively demonstrated. He saw several physicians to whom he told his story without any problem. The psychiatrists’ reports (exhibits S-27 and S-28) make no mention at all of such problems. Moreover, Mr. Martel testified satisfactorily for more than a day. Drs. Laflamme and Couture also said Mr. Martel was not disabled in the sense of the collective agreement, and the position of the College of Physicians clearly indicates that CFS does not disable the patient. Mr. Martel was called upon to a considerable degree during his testimony and during the two days of tests administered by Dr. Bastien and he reacted well.

 

Regarding the results of tests administered by Dr. Bastien, they cannot be retained because these tests were done in English and were not culturally adapted. In addition, they were administered in an intensive fashion over two days, which is inadequate. The testimony of Dr. Bastien is not credible because this is a person sold to the cause of CFS. Dr. Lassonde, who analyzed these tests, testified they demonstrated that Mr. Martel is an individual of above average intelligence, did not have any concentration difficulties, and was certainly not disabled.

 

The evidence presented by the union in no way demonstrated the presence of illness with Mr. Martel, or that he was in a state of disability in the sense of the collective agreement. Thus the grievance must be rejected.

 

UNION REPLY:

The credibility of Drs. Hyde and Bastien cannot be doubted. They are two specialists who have a particular interest in a specific health problem, which is certainly not negative. On the contrary, the extent of one’s knowledge is important when the person is being called as an expert witness.

 

The employer referred the arbitrator to the definition of illness given by le Petit Larousse of Medicine. Reference also should have been made to the words “syndrome” and “symptom”.

 

“Symptom”: Manifestation of an illness which can be subjectively perceived by the patient himself (subjective symptom) or be detected through clinical examination (objective symptom, normally called “sign”). Symptoms collectively form syndromes.

“Syndrome”: Ensemble of symptoms simultaneously or successively affecting an organism, and whose combination has a significant value in terms of the localization, the mechanism, or the nature of the pathological process, without permitting a complete diagnosis on its own.

 

Significance of syndromes -

In certain cases, the establishment of a syndrome is but one step towards making a diagnosis, which is established with the evolution and complementary examinations. In either case, a syndrome is a pathological entity, always identical, but whose cause or mechanism remains obscure. Take for example the Dressler Syndrome which can occur two or three weeks after myocardial infarction.

 

Understanding of the cause is an essential criterion for defining the illness and reestablishing the nosological classification. Nonetheless it is often difficult, even impossible, to make a distinction between syndrome and disease. If the undetermined origin and diversity of possible causes are the two criteria proposed to define a syndrome, then many states originally described as syndromes are now, as a result of medical progress, connected to a precise cause (such as Down’s Syndrome, or mongolism, which gave way to trisomy-21).

 

IV.                DECISION AND REASONS

 

The evidence submitted includes testimony of six physicians, two neuropsychologists as well as three other witnesses, Pierre Martel, France Michel, and Gaston Lavoie. The parties also tabled voluminous documentary evidence composed of expert reports from different physicians, results of laboratory tests and examinations by a large number of physicians, several medical texts (about 20), the files of Mr. Martel from four hospitals, administrative documents, and the College of Physicians guidelines, etc.

While I consulted and analyzed all of the evidence, it was impossible for me to report with complete accuracy everything that was presented, as it comprised about 2,000 pages of stenographer’s notes. The preceding parts of this decision constitute a resumé, still very long despite everything, of the principal elements brought forward by expert and non-expert testimony.

Taking into account this voluminous evidence, I must answer the one following question: Was Pierre Martel disabled, under terms of paragraph 8-1.02 of the collective agreement and does he have the right to disability benefits?

In such a dispute, it is Mr. Martel who must prove he was disabled and had the right to the benefits provided under the collective agreement. He does not have to prove, in an absolute way, that he satisfies the three conditions of paragraph 9-1.02; he must demonstrate it in a preponderant way. It must be pointed out here that this is not a medical arbitration and that the mandate of the arbitrator is not to resolve any medical controversy that might exist. Rather, his role is to decide upon the application of the collective agreement in relation to the particular circumstances of the dispute submitted to him.

Paragraph 8-1.02 of the collective agreement reads as follows:

By disability, this is understood to be a state of disability resulting from an illness, including an accident or a complication arising from pregnancy, or from surgery directly related to birth control, and requiring medical care and which renders the employee completely incapable of performing the normal tasks required of his/her employment or of any other similar employment, with similar remuneration, offered by the deputy minister.

Nonetheless, the deputy minister may assign the disabled employee to other duties for which he or she is fit, as much as possible in the employment category of professional personnel. In such case, the rate of remuneration, or where necessary the lump-sum payment, is not reduced.

Therefore, for there to be disability, three conditions must be present: an illness, which requires medical care, and which renders the employee completely incapable of performing the normal duties of his employment.

Was Mr. Martel suffering from an illness?

The preponderant evidence fully established Pierre Martel was suffering from Chronic Fatigue Syndrome (CFS), which was recognized by the expert witnesses heard or which at least was not denied, as pointed out by the union. According to the evidence, the symptoms which he presents correspond to the generally recognized definition of CFS. Thus he is not suffering from a mysterious malady totally unknown by medical science. On the contrary, CFS is known and is the subject of a great deal of research in Canada, the United States, and in several other countries. Indeed, the fact the Quebec College of Physicians established a committee of experts to prepare guidelines is a good indication that this is a reality for the medical world, a reality which affects many people, and which is the subject of considerable research and scientific publications.

 

Should CFS be qualified as a health problem, a complex entity whose etiology remains unknown for the moment (College of Physicians), or just simply as an illness? My task as arbitrator is not to resolve the medical controversy that exists concerning CFS. Rather, my role is limited to determining if this is an illness in the sense of paragraph 8-1.02 of the collective agreement.

 

With respect, I am of the opinion that the parties used the word “illness” according to its current usage, its ordinary meaning. Given the context of work relations and the people for whom it is intended, the collective agreement must be read in a way that the words used retain their ordinary meaning, unless there is a specific disposition to the contrary. Here, the parties did not define in any particular way the word “illness” and nothing justifies that any other meaning be given to it other than the one used in everyday language.

 

It is difficult to conclude that the parties wanted to give a medical sense to the word “illness” that would oblige those who must apply it, and eventually an arbitrator, to render a decision of a scientific nature. Rather, as the union proposes, it is preferable to stick with the ordinary definition of the term: “an organic or functional alteration, considered in its evolution and as a definable entity” (Le Robert). One must also refer to the definition of the word “patient” from the same dictionary: “One whose health is altered, who suffers from organic or functional difficulties”. It is not necessary to consider definitions contained in medical dictionaries, works that are of a scientific nature, which is certainly not the case of the collective agreement.

 

In addition, if the parties had wanted to give a more restricted or more scientific sense to the word “illness”, they should have signalled their intention.

 

The employer referred the arbitrator to the definition of an illness found in the dictionary “Le Petit Larousse de la Médicine”. I do not think one must look for the scientific signification of the word “illness”, as I have already pointed out, but even if the definition proposed by the employer were retained, it would be necessary to further analyze the signification of other words which are cited in the definition of illness in this dictionary. In this regard, the union suggested a definition of the word “syndrome” where it reads: “Nevertheless, it is difficult, even impossible, to distinguish between syndrome and illness”.

 

The Dictionnaire de Médicine Flammarion (1998) suggests the following definitions of illness and syndrome:

 

Illness: [lat. male habitus: one who is in a poor state]

1.        Alteration of the state of health.

2.        Disruption of the normal functions of one or several organs whose causes are in general known, and which is represented by signs and symptoms. (See also: syndrome)

 

Syndrome:

Grouping of symptoms (or signs) constituting a clinical particularity but not etiological.

Syndrome is thus traditionally differentiated from illness by the absence of a specific cause. This distinction often makes for difficult or arbitrary practical application; thus, there is a certain discomfort with the definition of the term “illness” and the relatively frequent use of the word “syndrome” in place of “illness”.

 

This indicates that even if a stricter definition of the word “illness” is retained, it is still far from clear that a well-identified syndrome such as CFS, recognized by the medical community, cannot be considered an illness in the sense of the collective agreement.

The fact that medical science does not yet know the cause or causes of CFS does not allow one to conclude that it is not an illness in the sense of the collective agreement. The objective of this disposition, as in paragraph 8-1.02 of this agreement, is to protect the remuneration of the employee who is sick. The fact that the cause of the sickness has not yet been identified by medicine cannot result in the employee being deprived of disability benefits. That was not the intention of the parties. It often occurs, meanwhile, that a person can be sick without physicians being able to identify the nature of the problem and its causes.

 

Moreover, the parties themselves limited the notion of illness by attaching to it two conditions, that of the necessity of medical care and the fact that the illness must render the employee totally incapable of performing the normal duties of his employment. This is how they intended to restrict the notion of illness, rather than giving to it a strict meaning in scientific and medical terms.

 

It also appears to me that the collective agreement must be interpreted by using the following rule, proposed by Morin and Blouin (Grievance arbitration law, 4th edition):

Rule 4: The collective agreement receives a liberal and positive interpretation to allow for its purpose to be achieved and to allow respect of its dispositions in accordance with its broad aims and scope.

 

The employer recalled that five physicians (Drs. Couture, Laflamme, Lafleur and two psychiatrists) had concluded it was impossible to objectively identify anything affecting Pierre Martel and that even Dr. Del Degan had not proven anything objectively. The employer thus concluded Mr. Martel is not suffering from any illness. I cannot accept this argument. Indeed, the fact that the physicians did not objectively identify anything does not necessarily imply that Mr. Martel is not sick. On the contrary, it has been proven clearly that he suffers from CFS, a syndrome which is amply understood by the medical community and which can be medically identified, as indicated by the guidelines submitted into evidence by the College of Physicians and others. Moreover, the fact that Mr. Martel suffers from CFS was not contested by the physicians for the employer.

 

Given the evidence, one must conclude Mr. Martel suffers from CFS and that this constitutes an illness in the sense of the collective agreement.

 

Does this illness require medical care?

The answer to this question must be affirmative. In fact, a physician (Dr. Sandra Del Degan) regularly follows Pierre Martel because he suffers from CFS. This physician provides care which, she indicated, is the most appropriate for the circumstances, and is support therapy. This kind of care is recognized and covered as such by the Régie de l’assurance maladie (Health Insurance Board) du Québec, as Dr. Del Degan stated.

 

The fact that there is no known treatment to cure CFS does not mean there is no medical care. The collective agreement does not require that care necessarily ensure a cure for the illness. How would one view care for a terminally ill cancer patient, or the patient whose physicians are looking for, but not finding, a medication or surgical procedure that would lead to a cure?

 

It is important meanwhile to emphasize that Dr. Louis Couture, who examined Mr. Martel in November 1996 for CARRA, wrote in his expert report (exhibit G-6, page 6) that “the current follow-up by his family physician appears to me adequate. Support therapy is worth continuing.” In addition, the College of Physicians (guidelines G-13) mentions the importance of follow-up and support of the patient suffering from CFS by his treating physician, despite the fact that no specific treatment exists aimed at curing CFS. Given such statements, it is certainly difficult to pretend the illness of Mr. Martel does not require medical care.

 

Does the illness of Mr. Martel render him totally incapable of performing the normal duties of his employment?

 

To answer this question, I must evaluate on the one hand the testimony of Pierre Martel, France Michel, Drs. Del Degan and Hyde, and on the other hand, the testimony of the physicians consulted by the employer. Drs. Del Degan and Hyde stated categorically that Mr. Martel is totally incapable of performing the normal duties of his job as a linguist. The physicians consulted by the employer stated there is no positive element from the neurological point of view preventing Mr. Martel from taking on paid work, that there is no organic problem to explain the fatigue and concentration difficulties, and that Mr. Martel can work without restriction (Dr. Laflamme). Regarding Dr. Couture, he concluded Pierre Martel does not present any diagnosis of infectious disease, that the physical exam remains normal, that there is no evidence of organic illness, and that he could not be considered as totally incapable of fulfilling his functions.

 

Regarding the College of Physicians guidelines, they suggest a work stoppage has negative consequences, that it should not be any longer than one month at a time, and the physician should encourage a progressive reintegration into work.

 

It should first of all be noted the physicians who are familiar with CFS are Dr. Del Degan, who has followed several patients in this state, and especially Dr. Hyde, who is without contradiction the one who knows CFS the best, as he has devoted his practice to it both from the clinical and the research point of view. He has himself examined more than 1,000 patients suffering from CFS, he has published in this field, and he participates in research at the international level. None of the physicians presented by the employer has a particular knowledge of CFS and they have seen very few patients suffering from this illness.

 

This element lends weight to the testimony of Dr. Del Degan, who moreover has followed Mr. Martel for several years, and to that of Dr. Hyde, a recognized specialist in the field. Indeed, what needs to be established is whether or not CFS renders Mr. Martel totally incapable of performing his normal duties, and not just simply to know if Mr. Martel objectively presents an organic illness. Indeed, as the College of Physicians’ guidelines indicate, “the etiology of chronic fatigue syndrome remains for the moment unknown” and “most often, physical exams of the person suffering from CFS will not reveal any objectifiable abnormality”. In spite of that, the College of Physicians does not pretend that a patient with CFS cannot be considered as incapable of working. While the guidelines offer reservations as to the advisability of maintaining a prolonged work stoppage, it is not mentioned that CFS does not render the patient incapable of working.

 

Furthermore, the physicians presented by the employer did not deny that Mr. Martel was suffering from CFS and they did not state this health problem was not preventing him from working. Rather, the thrust of their testimony was that they did not establish the presence of an organic illness showing the inability of Mr. Martel to perform his work. This does not necessarily signify that Mr. Martel is fit to perform his work.

 

Given these opinions, Dr. Hyde stated that in light of long clinical experience in this field examining and following a very large number of people with CFS, he has no doubt as to Pierre Martel’s inability to perform his work as a linguist. Dr. Sandra Del Degan, who has followed Mr. Martel for several years, arrived at the same conclusion after seeing several failed attempts by Mr. Martel to return to work.

 

According to the employer, the report of Dr. Hyde should be considered with caution, given that he is not a medical specialist and is defending a cause. The employer has reason to suggest prudence in such circumstances and it was with prudence that I analyzed Dr. Hyde’s report and testimony, while also considering the testimony and reports of the other physicians. That being said, it remains that Dr. Hyde appeared to me to be a credible witness and a most competent specialist in the field of CFS, with long and considerable clinical experience in the field. It is true he is dedicated to the cause of patients suffering from CFS but that certainly does not take away all his credibility.

 

In addition to this medical evidence which shows, in a preponderant way, the disability of Mr. Martel, there is the testimony of Mr. Martel himself and of his friend France Michel. Their testimony, which was not contradicted in any way, furnishes us with significant indications of the state of Mr. Martel’s disability. The impressive enumeration of serious symptoms points to a conclusion that he is disabled. According to this testimony, even his colleagues and superiors had noted his inability to perform his work. His superior even strongly suggested to him that he stop working and consult his physician. This evidence is a good indication of Mr. Martel’s total disability to perform the normal duties of his job.

It is also important to point out the sum of the evidence does not allow one to conclude Mr. Martel was making up symptoms of disease or that he was dishonestly presenting his real state of health. In this regard, Drs. Del Degan and Hyde stated they never sensed such an attitude on his part. Dr. Del Degan, who has followed Mr. Martel for several years, is well- placed to verify this, while Dr. Hyde has much experience in the field, having treated many CFS patients, and his opinion on this issue is clear and categorical and must be accepted. Moreover, there was not one witness who said Pierre Martel was feigning ill health.

 

It is not correct to suggest, as the employer did, that Dr. Sandra Del Degan had concluded in Mr. Martel’s disability solely on the basis of Mr. Martel’s word. It is true she did not objectively identify a precise organic problem, but she has treated several CFS patients and she has followed Mr. Martel for several years. Thus she has a good understanding of CFS and of Mr. Martel, and she acted in accordance with the guidelines of the College of Physicians. It is worthwhile to recall this passage from the document (page 5):

 

“As CFS remains a diagnosis of exclusion, the physician is obliged to proceed with a meticulous physical examination in order to detect any signs of organic or psychical insult for which a treatment exists. Such a meticulous examination will aid in establishing a therapeutic alliance. Most often, a physical exam of a person with CFS will not reveal any objectifiable abnormality.”

 

It is thus clear a person can suffer from CFS in spite of the absence of objectifiable abnormality, and a physician who has a good understanding of the illness and the patient can properly reach a conclusion about the patient’s disability. To contradict such a medical opinion, there must be more than just the fact there is no objectifiable abnormality.

The employer also argued Dr. Hyde had simply expressed an opinion that all CFS patients were unable to work. The evidence in fact established that Dr. Hyde had concluded Mr. Martel was seriously affected by CFS after a very exhaustive review of his medical history and his entire medical file, and a consultation lasting almost five hours. As well, he was able to establish Mr. Martel’s deficiencies during this consultation, and he has a good understanding of patients with CFS because he has seen a great number. This is a long way from being the expression of a simple general opinion.

 

The employer asserted the College of Physicians’ guidelines clearly indicateCFS does not leave a patient disabled. I cannot accept this argument. In their guidelines, the College embraces the CFS classification criteria adopted by the Center for Disease Control in 1994. Among these criteria is the presence of persistent fatigue…leading to a marked reduction in professional, social, or personal activity. The criteria also refer to short-term memory problems or concentration difficulties that are sufficiently significant to provoke a marked reduction in the normal activities of the patient. That certainly does not indicate that CFS does not cause disability. Further on in the guidelines (page 9), it is said that a work stoppage often has negative consequences and the period of time away from work should be discussed with the patient and documented in a rigorous manner. This indicates a prolonged work stoppage should not be prescribed right away, but it does not at all signify that CFS does not leave someone unable to work. The fact the College suggests an approach favouring a resumption of activities clearly does not imply either that CFS never leaves a patient disabled.

 

The employer suggested the presence of some other psychological factor relative to Mr. Martel’s state cannot be rejected out of hand, and it pointed out that experts had said cognitive behavioural therapy was indicated. It is possible certain psychological factors contribute to the poor state of Mr. Martel’s health.  The guidelines of the College of Physicians suggest that CFS, even though its etiology remains unknown, could be caused by a variety of multifactorial factors. That does not change the fact Mr. Martel has CFS and he is sick. It also must be pointed out that two psychiatrists examined Mr. Martel and concluded the examination was negative from a psychiatric point of view. Regarding the opinion of some physicians suggesting cognitive behavioural therapy, it is far from clear such a therapy would be indicated based on the medical documentation presented and the testimony of Dr. Hyde and neuropsychologist Sheila Bastien. Although my task as arbitrator is not to determine if such an approach is indicated, even if it were, that would not change the fact Mr. Martel has CFS and he is unable to perform his work.

 

In all probability, it appears the behaviour of Mr. Martel is not that of someone who feigns problems that he does not have or that he wants to “profit from the system”.

 

On the contrary, the evidence demonstrated that Pierre Martel was always a better than average employee who loved his work. It also established he tried just about everything to overcome his health problems and resume a normal life. He returned to work on several occasions without success. Each time, he was unable to work, as his colleagues and superiors verified.

 

It is unlikely that an individual such as Pierre Martel, who had a rich and interesting professional, sporting and social life would decide to give it all up to live in a situation which brings him no satisfaction.

 

Rather it appears that Mr. Martel is seriously affected by an illness which has left him unable to work or lead a normal life - an illness which medical science recognizes but cannot properly treat and whose etiology has still not been identified. The overwhelming evidence demonstrated Mr. Martel is someone who wants to recover, who has made serious efforts to do so, and who is credible when he explains all his difficulties and all his symptoms. There is not anything in the evidence either that leads us to doubt the credibility of Ms. Michel, who testimony was clear, precise, and direct. It is important to point out that no witness contradicted these two witnesses or cast doubt as to the problems experienced by Mr. Martel.

 

In summary, this situation involves a person who was functioning very well professionally and in every other way, and who is now seriously affected by an illness, understood and identified by physicians, but which cannot yet be treated. This inability of medicine to prescribe effective treatment is certainly not sufficient reason to consider Mr. Martel has no right to benefits provided under the collective agreement for disability, because the preponderant evidence established his state of disability arises from an illness requiring medical care, leaving him totally incapable of performing the normal duties of his work.

The union referred the arbitrator to voluminous jurisprudence (see annex). This accentuates the fact that the burden of proof for this type of case is that of preponderant evidence. (#1 and #2). This jurisprudence teaches us that non-expert testimony takes on major importance in the appreciation of the evidence in its entirety which includes contradictory expert opinions (#3 to #8). It also brings out the fact that the courts, in the U.S., Canada and Quebec, have recognized disability arising from CFS (#9 to #14). It is important in particular to point out the decision by arbitrator Marc Boisvert (#14) on a contract disposition that was substantially identical to the one before us.

 

The employer referred the arbitrator to five decisions cited in the annex. In the case of the Centre hospitalier de Lachine, arbitrator Marc Boisvert concluded the plaintiff was not disabled, on the basis of  “the uncontested medical evidence before me”. It is obvious such is not the case in the current dispute.

 

The arbitrator Jean-Pierre Lussier, in CLSC La Guadeloupe, concluded fibromyalgia syndrome is an illness under terms of the collective agreement. He added that the evidence did not convince him that the functions of the plaintiff and the extent of her illness meant she was unable to work. Thus, it was a question of appreciating the evidence based on the particular circumstances.

 

In the case of the Ministry of Justice and le Syndicat des agents de la paix, the arbitrator established the plaintiff suffered only from one symptom and did not receive any medical care. That is considerably different from this dispute.

 

The Social Affairs Commission ruled on an issue of whether or not Madame X could perform work on a regular basis (Madame X vs. Quebec Pension Board). This case was different than the one concerned here. The Commission ruled the medical reports did not demonstrate preponderancy. Once again, it was a question of appreciating the evidence. In the case of the Public Service Union of Quebec and the Ministry of Manpower and Revenue Security, arbitrator Claude Foisy established that the two physicians brought forward by the plaintiff did not want to characterize the problems of the plaintiff as an illness. That is far different from the medical evidence submitted to us. It must also be emphasized in that case it was a question of discomfort and of symptoms, not a known and identifiable syndrome as is the case with chronic fatigue syndrome.

 

I must point out my conclusion is based on the totality of the particular circumstances brought out in testimony in the current case. I am far from certain the same conclusion would be justified each time a person claims to suffer from CFS and is unable to work. Indeed, I believe there must be great prudence shown in these circumstances, given the presence of many unknowns about CFS and given the risk certain people might unduly and improperly profit from this lack of knowledge. In the current case, I have taken this aspect into account. But I was convinced, by the quality and the credibility of the evidence submitted, that it would not be consistent with the collective agreement and that it would unjust to conclude Mr. Martel did not have the right to disability benefits as provided by the collective agreement.

 

DISPOSITION:

In pursuance of the preceding, the arbitrator:

2.        ·         ACCEPTS the grievance;

3.        ·         DECLARES that Pierre Martel was, from February 4, 1997 and at all times pertinent to this question, in a state of disability under terms of paragraph 8-1.02 of the collective agreement and has, in consequence, the right to the disability benefits that arise, and interest;

4.        ·         RESERVES jurisdiction to resolve any dispute arising between the parties in the application of the present decision.

 

Sainte Foy, November 24, 1998

Gilles Desnoyers, CRI

Arbitrator

 

List of legal submissions:

By the union:

1.        Snell vs. Farrell (1990) 2 R.C.S. 311.

2.        Alice Dew vs. Exeltor Inc (1996) C.A.L.P. 429.

3.        Miller vs. Brues (1973) C.A. 902.

4.        Hirsch vs. Sun Life of Canada (1993) R.R.A. 656.

5.        Fedenko vs. Great West Life Assurance Co (1996) R.R.A. 658.

6.        Lavigne vs. Association d’hospitalisation du Québec (1997) R.R.A. 775.

7.        Lapointe vs. La Compagnie Laurentienne impériale Inc. (1997) R.R.A. 406.

8.        Sanatorium Bégin and UES, local 298 (grievance: S. Leclerc). T.A. Arbitrator Guy E. Delude, January 30, 1991.

9.        Sisco vs. U.S. Department of Health and Human Service, 10F.3d.739.

10.     Mitchell vs. Eastman Kodak Co. 113 F.3d, 433.

11.     Baillie and Life Insurance Company, Alberta C.Q.B., 2-03098, #9393-22591.

12.     Sarrazin vs. La Mutuelle du Canada, C.S. Terrebonne, 700-05-000866-875, January 20, 1993, Judge Jean Crépeau (1993) R.R.A. 424.

13.     Régime des rentes – 36 (1997) C.A.S. 281.

14.     Centre hospitalier Angrignon and Syndicat des employés CSSMM, SA97-11970, Marc Boisvert, September 8, 1997.

 

By the employer:

1.        Centre hospitalier de Lachine and Canadian Union of Public Employees, Local 2881, arbitrator Marc Boisvert, June 25, 1997.

2.        CLSC La Guadeloupe and Syndicat des employés du CLSC de la Guadeloupe, arbitrator Jean-Pierre Lussier, February 7, 1997.

3.        Ministère de la Justice and Syndicat des Agents de la Paix de la Fonction Publique, Judge Jacques Bousquet, March 6, 1981.

4.        Madame X vs. Régie des Rentes du Quebec, Commission des Affaires Sociales, RR-59275, September 24, 1997.

5.        Ministère de la Main-d’œuvre et de la sécurité du revenu and the Syndicat des fonctionnaires provinciaux du Québec Inc., Claude H. Foisy, June 21, 1985.