The term “permanent disability” is frequently used in legal definitions, medical and rehabilitation terminology, insurance coverage, and government compensation programs. People with episodic disabilities who need to use a variety of financial support programs face challenges since the definitions of these programs and benefits vary from one source to the next.

An episodic disability is characterized by periods and degrees of wellness and disability that fluctuate over time. A growing percentage of people are affected by episodic disability.

According to a Statistics Canada survey report, “of the 6.2 million Canadians with disabilities aged 15 years and over, just 39 percent (2.4 million) experienced conventional, continuous limitations, while 61 percent (3.8 million) experienced some type of disability dynamic..

Many people suffer from episodic disabilities, and the unexpected nature of their illnesses makes it difficult for them to achieve long-term goals, find work, maintain a stable income, or get social assistance. Moreover, these phases of health and disability are unpredictable. Consequently, a person may enter and exit the labor force with unpredictability.

In 2015, the Episodic Disabilities Employment Network (EDN) updated its list of episodic conditions, which is continuously expanding with time. The diseases and conditions that are the potential causes of episodic disabilities include; arthritis, asthma, some forms of cancer, chronic obstructive pulmonary disease, chronic bronchitis, emphysema, chronic fatigue syndrome, chronic pain, chronic inflammatory demyelinating polyneuropathy (CIDP), Crohn’s & colitis, diabetes, epilepsy, fibromyalgia, hepatitis C, human immunodeficiency virus/ Acquired immunodeficiency syndrome (HIV/AIDS), lupus, depression, anxiety, bipolar disorder, schizophrenia, Meniere’s disease, multiple sclerosis, migraines, Parkinson’s disease, and systemic exertion intolerance disease (SEID).

In California workers’ compensation the distinction between episodic and permanent disabilities can make a major difference in long term benefit awards. This is especially significant when consideration is given to claims of “Kite” disability (Athens Administrators v. Workers’ Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213),  In Kite cases total disability can be awarded when a vocational rehabilitation expert claims an injured worker is unable to compete on the open labor market at all – forever.  

Such a conclusion must consider the episodic nature of some disabilities.

Rehabilitation involves any services or providers who address or prevent disability experienced by people living with chronic episodic illness. Rehabilitation should be disability focused, goal oriented, person centered, focused on function and tailored to an individual’s goals, abilities and interests.

The bulk of the literature on episodic disabilities and rehabilitation has been related to those suffering with HIV. And currently the issue of episodic disabilities is resurfacing for those with Long COVID.

For example one study found that “Contextual factors that influenced disability were integral to participants’ experiences and emerged as a key component of the framework. Extrinsic contextual factors included social support (support from friends, family, partners, pets and community, support from health care services and personnel, and programme and policy support) and stigma. Intrinsic contextual factors included living strategies (seeking social interaction with others, maintaining a sense of control over life and the illness, “blocking HIV out of the mind”, and adopting attitudes and beliefs to help manage living with HIV) and personal attributes (gender and aging). These factors may exacerbate or alleviate dimensions of HIV disability.”

Perhaps it is now prudent to consider concepts learned from the growing body of literature on episodic disability when evaluating a claim of disability based on the Kite decision. Is there enough data to be deemed that such an injured worker will not be employable forever, no matter what?  Or is is episodic, meaning perhaps for now and the immediate future, but not necessarily forever.