Self-Help & Coping

Disability Issues

Are your fibromyalgia symptoms getting in the way of your employment? Have you taken time off work or worried that you might not be able to work much longer? If your pain, fatigue, or fibrofog has already caused you to leave your job, you might be wondering: What do I do if I’m not able to return?

While going on long-term disability is usually a one-time process, it is often lengthy, arduous, and full of pitfalls. If the proper steps aren’t made in a timely way, the opportunities to obtain disability can be lost.

Charles McBrayer Sasser, J.D., of the Sasser Law Firm in Charlotte, N.C, gave a webcast on “The Nuts and Bolts of Disability” for patients with chronic fatigue syndrome, a disease that strongly overlaps with fibromyalgia. Sasser says the bottom line is that the private insurance companies are going to do anything they can to avoid paying the disability claim. “They report to their employers, stockholders and shareholders, and they don’t want to pay out,” he adds.

For the most part, Sasser encourages employees to obtain legal representation early in the process because professionals understand the hoops and hurdles that must be cleared along with deadlines, and the complicated processes. “You will not be able to determine if your medical records are strong enough to support your case,” says Sasser, adding that a huge amount of work goes into gathering the initial evidence needed to obtain disability.

Generally, most people apply for one of three main types of disability:

1. Private disability
2. Employer-provided disability
3. Social Security Disability Insurance (SSDI)

Private Disability

This type of policy is purchased from an insurance company to cover lost income in the event you can’t work. You signed a contract and you agree to pay monthly premiums. If you become too sick to work, you can file a claim to collect the amount stipulated in your contract. However, you must be able to demonstrate that you are work-disabled (having the diagnosis of fibromyalgia and being in non-stop pain won’t be enough).

Private insurers can deny your claim (even if you follow the company’s steps), and your only recourse is to appeal the decision in court for breach of contract. “If you have not already consulted an attorney, this would be the time to do so,” says Sasser. In this case, a “breach of contract” lawsuit would have to be filed.

Most of these claims end up in federal court because you may not reside in the same state as the insurance company. Sasser says these court cases are generally long and can go on for years. “If you were paying premiums to receive $8,000 to $10,000 a month or more, expect the insurance company to put up a stiff defense.

After the lawsuit is filed, the insurance company goes through a discovery process. They ask questions of your doctor, employer, coworkers, and collect evidence that supports the insurance carrier’s denial. Attorneys representing the patient also provide evidence and witnesses to support their claim.

These cases eventually go to trial in front of either a judge or jury, and patients can obtain their benefits, interest, attorney fees, and/or punitive damages if they win the case. Regardless of the outcome, the case can be appealed by either party, and the process continues.

Employer-Provided Disability

More common than private insurance is employer-provided disability. Most often, large and mid-sized employers offer disability insurance that is controlled by the Employee Retirement Income Security Act of 1974 (ERISA).

Once the employee takes a leave of work due to a disability, ERISA claims are initiated by the employer, usually their human resources department. These claims are highly regulated and have a limited window to produce evidence. The insurance company is solely responsible for deciding if they will pay the claim. Most trials happen in front of the insurance company that wrote the policy. If the claim is denied, the employee can file an appeal within a very short time frame. Again, the insurance company will review the appeal and make a final determination. At this point, the case is over and the employee has no further recourse with the insurance company to file a lawsuit.

“Attorneys use a different approach when processing and ERISA claim,” says Sasser. In the event of an ERISA case, don’t delay. Try to find legal counsel early in the process, because once a decision is made and the appeal is done, the doors are shut and it’s over, says Sasser. Insurance companies bank on the fact that only half of the claims are appealed in time. “Don’t wait for a decision in an ERISA case. The overall nature of ERISA is anti-consumer.

Even if a lawsuit is filed, the court or judge will only be able to review the information that was collected in the case file before the decision was made. No one can add to the file or update the information. Referring to the way ERISA claims are set up, Sasser says, “It rewards insurance companies for bad behavior.”

Social Security Disability

Social Security Disability Insurance (SSDI) pays benefits to you and certain family members who worked long enough and paid Social Security taxes. This insurance benefit was automatically taken out of your paychecks during years of employment throughout your lifetime. (SSDI should not be mistaken for Supplemental Security Income (SSI), which pays benefits based on financial need alone.)

Once determined to be disabled, SSDI pays benefits to qualifying individuals up to the time of their official retirement age. At that point, Social Security retirement kicks in to replace your SSDI.

The Social Security Administration (SSA) views fibromyalgia as a medically determinable impairment, which means your condition “might” be disabling. However, the diagnosis of fibromyalgia doesn’t get you disability benefits; you still must be able to prove that you cannot work a full-time job. This is the part that gets difficult (and the same holds true for the other types of disability policies).

Putting this hurdle aside, the SSDI process occurs in four simplified steps:

• Step#1 – A disabled person applies for benefits at a Social Security office, over the phone, or online. A preliminary decision takes six to 12 weeks. About 60 to 65 percent of applicants are denied.
• Step#2 – If denied, individuals have 65 days to appeal through a “reconsideration request” filing. In this step, about 90 percent are denied.
• Step#3 – Applicant has 65 days to appeal the reconsideration and ‘request a hearing.’ “This is the most important stage as you get to have your lawyer talk to the judge, argue on your behalf, and present evidence and witnesses,” says Sasser. “This is the best opportunity to win your case.” Sasser says that good attorneys will win 80 to 85 percent of cases with disabled individuals.
• Step#4 – If the case is denied in Step 3, an applicant can make a third appeal to be heard before a judge who will make a final decision. The only appeal that can be made after that is to file a lawsuit within 65 days of the final decision. A lawsuit makes its way through the regular court system and could take years.

One myth, explains Sasser, is that patients need to wait a year after they are unable to work before making their first application. Sasser encourages patients with chronic fatigue or fibromyalgia not to wait a year. They only have to prove that they are disabled or will be disabled for 12 months. He urges patients to get the ball rolling as quickly as possible because the backlog for SSDI cases is very long and often takes two years. SSDI benefits can be awarded retroactively for up to a year … so if you wait, you can lose out on a year of back pay.

When a person has more than one disabling illness, such as fibromyalgia plus arthritis and migraines, patients should submit information on everything they can collect. “Don’t try to pick and choose what you might think will be the strongest evidence. Even include anxiety, depression, and cognitive issues.”

“All three of these disability avenues offer their own set of rules and guidelines,” says Sasser. “They cannot influence each other. They are distinct and different.” What works in the Social Security Insurance case does not work in the ERISA system. With Social Security, the treating physician is given more weight than an outside examiner, and the individual making the claim has a greater opportunity to present their case. With ERISA and private insurance, the medical examiner hired by the insurance companies is given a large amount of weight, says Sasser.

Most everyone has heard about the “snoops” or private investigators who sit outside people’s homes and take a five-minute video of the applicant mowing the grass. They might even give the video to the patient’s private physician so he has less faith in you. This video can have a pretty detrimental impact against your case. What they will not present is the fact that the five minutes of mowing may have put you in bed for three days.

What are the Costs?

Fees involved in filing for Social Security Disability cases are federally regulated and limited. Companies that offer representation could charge 25 percent of your initial award (usually taken out of your back retroactive pay) or up to $7,200, whichever is less. Fees vary, but the maximum cap is $7,200. There are NO up-front costs (other than postage, printing reports, etc.) and you don’t pay anything unless you win your case.

At a time when you are least able to fill out mountains of paperwork, an experienced SSD attorney can help you out. You could pay up to $400 in various office fees, but in the end, SSD attorneys know how to organize and submit your files to the Social Security Administration.

ERISA and private insurance disability cases are not federally regulated. Sometimes the cost is based on what you win. Read your contract carefully and understand up front what you agree to pay.

Assessments

Private insurers and the insurers for the employee’s company will likely schedule a Functional Capacity Evaluation or FCE. It is usually a two-day assessment to determine things like range of motion, balance, strength, ability to sit/walk/stand, ability to lift and carry objects, fine motor skills, etc. The FCE doesn’t present an accurate picture of the functional limitations of many fibromyalgia patients. Most can perform the tasks required over a two-day period, but not consistently on a full-time basis … as one would do in a job setting.

Fibromyalgia doctors sympathetic to the disabling potential of this disease suggest that pre- and post-exercise pain levels be evaluated for each test day. Pain scores that escalate may also reflect problems with sustained function that would be necessary for maintaining a job. Fatigue levels and cognitive reserves (if there are any left) should also be measured.

If a fibromyalgia patient is applying for Social Security Disability, the person’s primary physician also needs to consider the above factors when assessing abilities to sustain a full-time job.

Medical Documentation

Joshua Potter, Esq., of Pasadena, CA, is a social security disability lawyer with special expertise in fibromyalgia. To fulfill the requirements for having a medically determinable impairment, Potter says patients must have complete and thorough charting in their medical records. “They should contain detailed tracking of failed therapies as well as the documentation of symptoms and function. It will not only include one’s medical history, but also work history. Reliance on a shorthand in which the diagnosis appears unsubstantiated and unexplained throughout the chart will simply be unacceptable. More important for the patient is that the constellation of symptoms needs to be featured within the chart. This is because the symptoms themselves play an important role in any disability determination, whether Federal or private.”

“A patient’s chart will be considered incomplete if it merely recites the diagnosis and the medications prescribed,” says Potter. “Not only must the chart demonstrate that the patient meets the American College of Rheumatology criteria for fibromyalgia, more importantly, what are the symptoms and complaints associated with that diagnosis? The diagnosis itself is not the equivalent of disability and will never support a doctor’s comment that an individual is or is not disabled”

Patient Documentation

…view it as an insurance policy
by Joshua Potter, Esq.

Not to sound pessimistic, but you never know what the future holds. If you take steps now to regularly document your health and work status to meet the SSA requirements, then at least you won’t have any regrets later if you are overtaken by ill health. More often than not, fibromyalgia is triggered by unexpected events such as auto-accidents, infections, or the onset of another illness. These same events can also lead to a serious decrement in function from which your body may not fully recover.

Once you have endured a setback in your health, it is usually too late to start thinking about issues of documentation. The SSA will look at your medical records for the past 12 months and weigh that information against their template. If your physician writes a complete chart, it is possible that disability will be paid. Unfortunately for you and your physician, this scenario is not common these days.

The new SSA ruling will allow an interested reviewer to also take into consideration the personal records of a person with fibromyalgia, such as a journal, diary or notes that describe one’s impairment(s) and its associated impact on function over time. Again, the SSA will be looking at relevant evidence for the 12-month period preceding the month of application to them.

What about long-term disability (private insurance) and insurance cases involving motor vehicle accidents of people who have previously been diagnosed with fibromyalgia? Chances are, they will apply standards as strict as the SSA.

You don’t want to find yourself at the mercy of the court system and government-paid independent medical examiners. These institutions may not realize how functionally impacting fibromyalgia can be. Start taking the following precautions now:

• Visit your fibromyalgia physician at least three times a year. During each visit, bring with you a list (preferably typed) of your dominant symptoms and any significant problems that you are having with function (work, house/yard chores and social activities). Make sure that this gets incorporated into your medical record and keep a copy for yourself. If you have done your job of getting right to the point of the visit, then you shouldn’t feel awkward about asking what he or she will be writing in your record.
• Whenever you visit any healthcare provider (gynecologist, naturopath, chiropractor, physical therapist, occupational therapist, counselor, etc.), try to follow through with the same recommendations as given above for physicians.
• Keep your own journal, diary, or notes.

Resources

• Sasser Law Firm – Phone: (704) 315-2584, website: www.sasserlawoffice.com
• Joshua Cohen Samulon & Padilla – Phone:626-795-0681, website: www.pottercohenlaw.com
• Social Security Disability – For information to make an appointment or apply online www.ssa.gov
• How Do Social Security Disability Lawyers Get Paid? by Joyce & Bary Law. If you are out of work due to fibromyalgia, chances are high that you are scrambling for money, and the thought of hiring an attorney may seem scary. SSDI lawyers work on contingency, their fees are capped, and they don’t receive their money until you get paid … if you get paid.
• Allsup, Inc. – Representatives that specialize in Social Security Disability Insurance (SSDI) benefits. Phone: (800) 854-1418, website: www.allsup.com
• ERISA Law Group – This company represents clients throughout the United States who have claims against insurance companies for long-term disability benefits, life insurance benefits, or compensation based on bad faith conduct of their disability insurer. Phone: (844) 887-5733, website: www.theerisalawgroup.com