Seeing is Believing: Identifying the “Ideal Manifestation of Hidden Disability” in Ontario’s and Quebec’s Social Benefits Tribunals
Authors
Pascale Malenfant, McGill University Faculty of Law

Keywords
disability, hidden disability, health law, social benefits, administrative law, ideal victim

Abstract
The phenomenon of disability skepticism, especially in relation to “hidden” disabilities like chronic fatigue syndrome (CFS), has fostered a culture of doubt among medical, legal, and public entities. This paper explores the intersection of such skepticism with the social benefits adjudication processes in Ontario and Quebec. In drawing parallels to feminist critiques of the “ideal victim” in sexual assault cases, it argues that the tribunals’ biased framework for believability is based on a claimant’s conformity to stereotypical expectations of what an “ideal” claimant with a hidden disability looks like. By comparatively examining 10 years worth of Ontario and Quebec tribunal decisions featuring claimants with CFS, this study highlights how those with hidden disabilities are evaluated based on visible manifestations of their disability/emotion, medical/expert evidence, and the apparent credibility of themselves or others as witnesses. This research not only addresses a significant gap in the literature but also calls for reforms in the legal treatment of hidden disabilities, advocating for a shift away from entrenched stereotypes towards a more inclusive and equitable system
Seeing is Believing: Identifying the “Ideal Manifestation of Hidden Disability” in Ontario’s and Quebec’s Social Benefits Tribunals Authors Pascale Malenfant, McGill University Faculty of Law Keywords disability, hidden disability, health law, social benefits, administrative law, ideal victim Abstract The phenomenon of disability skepticism, especially in relation to “hidden” disabilities like chronic fatigue syndrome (CFS), has fostered a culture of doubt among medical, legal, and public entities. This paper explores the intersection of such skepticism with the social benefits adjudication processes in Ontario and Quebec. In drawing parallels to feminist critiques of the “ideal victim” in sexual assault cases, it argues that the tribunals’ biased framework for believability is based on a claimant’s conformity to stereotypical expectations of what an “ideal” claimant with a hidden disability looks like. By comparatively examining 10 years worth of Ontario and Quebec tribunal decisions featuring claimants with CFS, this study highlights how those with hidden disabilities are evaluated based on visible manifestations of their disability/emotion, medical/expert evidence, and the apparent credibility of themselves or others as witnesses. This research not only addresses a significant gap in the literature but also calls for reforms in the legal treatment of hidden disabilities, advocating for a shift away from entrenched stereotypes towards a more inclusive and equitable system
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Mankoski Pain Scale
A Numeric Pain Intensity Scale

0: No Pain. No medication needed.

1: Very minor annoyance - occasional minor twinges. No medication needed.

2: Minor annoyance - occasional strong twinges. No medication needed.

3: Annoying enough to be distracting. Mild painkillers are effective. (Aspirin, Ibuprofen, Tylenol)

4: Can be ignored if you are really involved in your work, but still distracting. Mild painkillers relieve pain for 3-4 hours.

5: Can't be ignored for more than 30 minutes. Mild painkillers reduce pain for 3-4 hours.

6: Can't be ignored for any length of time, but you can still go to work and participate in social activities. Stronger painkillers (Codeine, Vicodin) reduce pain for 3-4 hours.

7: Makes it difficult to concentrate, interferes with sleep. You can still function with effort. Stronger painkillers are only partially effective.
Strongest painkillers relieve pain (Oxycontin, Morphine). 

8: Physical activity severely limited. You can read and converse with effort. Nausea and dizziness set in as factors of pain. Stronger painkillers are minimally effective.
Strongest painkillers reduce pain for 3-4 hours.

9: Unable to speak. Crying out or moaning uncontrollably near delirium. Strongest painkillers are only partially effective.

10: Unconscious. Pain makes you pass out. Strongest painkillers are only partially effective.


Developed by Andrea Mankoski in 1995
A table with this legend at top: Mankoski Pain Scale A Numeric Pain Intensity Scale 0: No Pain. No medication needed. 1: Very minor annoyance - occasional minor twinges. No medication needed. 2: Minor annoyance - occasional strong twinges. No medication needed. 3: Annoying enough to be distracting. Mild painkillers are effective. (Aspirin, Ibuprofen, Tylenol) 4: Can be ignored if you are really involved in your work, but still distracting. Mild painkillers relieve pain for 3-4 hours. 5: Can't be ignored for more than 30 minutes. Mild painkillers reduce pain for 3-4 hours. 6: Can't be ignored for any length of time, but you can still go to work and participate in social activities. Stronger painkillers (Codeine, Vicodin) reduce pain for 3-4 hours. 7: Makes it difficult to concentrate, interferes with sleep. You can still function with effort. Stronger painkillers are only partially effective. Strongest painkillers relieve pain (Oxycontin, Morphine). 8: Physical activity severely limited. You can read and converse with effort. Nausea and dizziness set in as factors of pain. Stronger painkillers are minimally effective. Strongest painkillers reduce pain for 3-4 hours. 9: Unable to speak. Crying out or moaning uncontrollably near delirium. Strongest painkillers are only partially effective. 10: Unconscious. Pain makes you pass out. Strongest painkillers are only partially effective. Developed by Andrea Mankoski in 1995