How to apply for disability benefits due to Multiple Chemical Sensitivity

Posted on Feb 02, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

It’s important to seek competent legal advice before applying for disability benefits to avoid ultimate denial due to common mistakes in filing.

Editor’s Note: I’d like to welcome Michael Walkup, attorney at law, as a guest blogger on The Canary Report. Michael specializes in disability claims, and will be guest blogging monthly here on The Canary Report about disability law in relation to Multiple Chemical Sensitivity (MCS), Chronic Fatigue Syndrome (CFS) and Fibromyalgia Syndrome (FMS).

Along with his law practice, Michael also owns and runs Walkup Heritage Farm and Gardens, located on the original Walkup family land in Crystal Lake, Illinois. The farm specializes in the sale of native plant species, such as prairie and woodland plants, as well as “heirloom” ornamental flowering plants and vegetables.

Below is Michael’s first contribution to The Canary Report, where he discusses the issues that should be considered before filing for disability benefits. He’s happy to respond to your questions in the comment section. Let’s give a warm welcome and big thank you to Michael Walkup for so generously sharing his expertise with us. Thanks, Michael!

If you are suffering with Multiple Chemical Sensitivities (MCS), it is possible that you will eventually become unable to work and will seek various types of disability benefits.

It is extremely important that you seek competent and experienced legal advice before doing so or you could face ultimate denial of needed benefits.

There are several types of disability programs potentially available. The one that is selected, and the order in which that is done, however, is of vital importance.

To be brief, you may have the following options: (1) short term and long term disability insurance provided by an employer; (2) disability insurance purchased personally (not through an employer); (3) workers compensation (state or federal); and (4) Social Security disability and/or Supplemental Security Income from the U.S. Government.

Some of my clients are reluctant to file for Social Security Disability as they want to assign blame to their employer or third party, or may feel that they “paid” for their disability insurance so they ought to be able to receive it if they become unable to work. However, as is explained below, this approach may cause serious problems in the long term.

First, the chances of success on disability insurance claims are not good for Multiple Chemical Sensitivity (MCS), Chronic Fatigue Syndrome (CFS) and Fibromyalgia Syndrome (FMS) sufferers. Additionally, the law for appeals is very restrictive for employer sponsored disability plans. Private individually purchased plans, while not having the same appeal restrictions, may nevertheless require you to incur huge legal expenses using the state court systems. Most lawyers will not want to take these types of cases on a contingency basis.

Second, in insurance claims, you will be treated as part of an adversarial system and will be sent to doctors who are “hired guns” for the insurance industry. They are likely to issue negative reports, including assertions that there is no “scientific basis” for the MCS diagnosis. This can then find its way into a Social Security file and result in a denial of Social Security Disability Insurance (SSDI) and/or Supplemental Security Income (SSI) benefits

Workers compensation plans will also require that you show a “causal relationship” between your work conditions and your impairments, and that you were exposed to a “risk of injury” higher than that of the public at large outside of the employment. This can be very problematic for MCS due to the multiplicity of non occupational exposures that are everywhere in the modern world.

Many disability insurance policies also have limitations or exclusions for “mental impairments” causing benefits to be denied or terminated after a period of payment, usually two years. Insurance company doctors will therefore often allege that MCS is a “psychogenic or somatoform disorder” to place the claim in a limited pay status.

A more recent development is the appearance in some disability insurance policies of provisions to limit benefits to two years if the impairments are based on “self reported conditions,” which would apply to most MCS and related cases. The validity of this type of limitation has not yet been litigated to my knowledge.

You may also be required to file for Social Security Disability as a condition of continuation of insurance benefits. Any disability benefits you may be awarded from a disability insurance policy will usually also be reduced or “offset” by any Social Security disability payments. Workers compensation benefits will be subject to or cause similar offsets. Therefore, the total additional monthly benefit you receive from insurance or workers compensation claims may not be that much higher than if you had just applied for Social Security Disability.

Claims before the Social Security Administration are more likely to be successful, particularly if you appeal the case at least to the hearing level. The cases are non-adversarial and the Rules of Evidence do not apply. Doctors used by the U.S. government also don’t necessarily have the type of agendas seen with those hired by the insurance industry to deny claims, and may not even be specialists in the correct medical area. If, however, you have applied for an insurance claim, adverse medical reports may be generated that can jeopardize a Social Security claim. This could leave you with no hope for future benefits from any source.

It is therefore recommended that you think carefully about applying for any insurance benefits for MCS, CFS and/or FMS and consult with an experienced attorney in this field before doing so. As there are often time limits with respect to filing for insurance claims, each case needs to be carefully reviewed and discussed before any decisions should be made.

Link to all columns by Michael Walkup.

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Michael Walkup is an experienced disability practitioner with more than 25 years experience in the disability law field. In 2001, he became disabled due to Multiple Chemical Sensitivity (MCS), Chronic Fatigue Syndrome (CFS) and Fibromyalgia Syndrome (FMS). He now provides a service to advise clients with potential disability claims who have MCS, CFS and/or FMS. As these programs and law are usually federal, he is able to practice in all 50 states and, therefore, represent clients regardless of location.

Michael is a long time Sustaining Member of the National Organization for Social Security Claimants’ Representatives, the only national body for disability representatives. He is also certified as a Federal Trial Lawyer and is admitted to the U.S. Court of Appeals for Veteran’s Claims.

Michael would welcome the opportunity to possibly help with disability claims. For more information, visit his website MCS Legal Help at walkuplaw.com. Contact info: email MJWalkup@Amertech.net or call 866-880-4878.

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Tags: Disability Rights, Environmental Illness, Health, Law, MCS, Multiple Chemical Sensitivity, Policy, Social Justice, Support, Work

5 Responses to “How to apply for disability benefits due to Multiple Chemical Sensitivity”

Lauren Gerard

18. Feb, 2009

I applied for Social Security Disablity last November, and the process for the intitial review of my case is about to finish. I haven’t been to a doctor for my MCS since just after I became chronic two years ago, (what was the point) and I was required by SSD to see two doctors who contract with that agency, and the appointments were made.

I received a call from the first doctor, whose office was just about to receive new carpeting and wallpaper. They had a cancellation, so I was able to go early and avoid the new materials. The common areas of the building still had toxic carpet, about 2-4 years old. My BP was 172/104. The second doctor I was to see just moved last June and had new carpeting installed at that time. There was no way I was going to that office, and they didn’t feel they could accomodate me in any other environment. I cancelled that appointment and was told that if I cancelled again, that would be it. In questioning my case worker about accomodation, I learned that she could only put in a request …..meaning that I could get the same doctor or another with an equally or moreso toxic environment. There was nothing she could do to assure me a fairly safe environment. Fortunately, the rescheduled appointment was with a doctor who was willing to accomodate me, and we meet in a potentially less toxic, public place.

One of my symptoms is dangerously high blood pressure (common around carpet), to the point that I could suffer a heart attack, stroke or even death. This is what happened when I became chronic (BP 195/120). At that time, I went to the ER, but now I have become so sensitized that I cannot tolerate a hospital environment or any drugs of any kind (they too cause dangerously high blood pressure and/or anaphylaxis).

I have read accounts of persons with MCS having to go to court, etc., only to be made ill, and seeing there is little choice, they have to comply. I didn’t look forward to going anywhere that makes me feel worse, but within some reason, I too am willing to accept that, though I shouldn’t have to. I am outraged that any agency of the government would expect someone to go into an environment that could potentially kill or severely disable them, or even make them ill. Plus, this agency oversees dispensation of funds for an illness that they know nothing about, even though they acknowledge it’s existance. Additionally, the doctors who are examining us know nothing about the condition either, and I found the physical examination I had to be a complete joke.

When I cancelled the one appointment, I pointed out to my case worker that I was only asking for reasonable accomodation, as would be afforded any person with an obvious physical disabilty. They would surely not send a person in a wheel chair to a building without suitable access. Plus they offer an interpreter at no cost, if one is required. I suggested that to send me into an office with fairly new carpeting was like asking her to go into a burning building. She said there was nothing she could do accept make another request.

I would like to know how to go about trying to change SSD, so that persons with MCS and other environmentally reactive conditions don’t have to subject themselves to additional pain, or in my case, potential additional disablity or death, just to meet their requirements. This is a step that needs to be made for all persons with these limitations. I don’t know how to begin such a campaign. Do I try to find a suitable attorney, and if so, how would I find a good one? Or is this something I try to take to ACLU? Over the years, with my condition, I have never been able to be any kind of an activitist, so I’m at a loss. I feel like so many others who have this condition, that I need to do something positive to help those with MCS, FM, CFS, etc who are fighting their own battle. I figure that with my condition of dangerously high blood pressure, which can be and has been documented, that maybe this is the way to make the system change. I would appreciate any advice you can offer. I don’t know where to go from here.

By the way, I am expecting to be turned down, as I understand most people to be the first time around. We’ll see. Thanks for the time and assistance.

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Leslie

18. Feb, 2009

I applied for disability and got turned down. I then got a pro bono lawyer to help with re-applying but she said I would be turned down again. Even though i have Celiac Disease which causes ataxia, seizures, and MCS.
Most people with MCS can’t afford a lawyer, and to be honest there is so much info in this post I dont have a clue what it means. I guess my question is can someone with MCS get disability?

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Susie Collins

18. Feb, 2009

Lauren and Leslie, I sent an email to Michael letting him know you have some questions. My guess is he will check in tomorrow (Thurs). Mahalo for your patience! Aloha, Susie

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Michael Walkup

19. Feb, 2009

My recommondation to my clients is not to go to the SSA exams. If you go and can tolerate the building, it lends itself to the argument that you don’t have a serious problem. If you do experience a problem while you are there, it may not be included in the report. People often do not experience the more serious symptoms until they leave.

I have a letter which I send to the examiners telling them about all of the things that my client needs to avoid and asking them if they can’t accomodate that to do a home visit. They are rarely able to provide the accomodation at their offices, which underscores the type of problems my client would have trying to go into a typical workplace. If they agree to go to the home, I send another letter listing all of the products they have to avoid wearing. I have yet to have a doctor be willing to comply.

The SSA exams rarely, if ever, help the claim and often hurt it. They are usually scheduled in the first place because there is no current medical evidence from treating sources in the file, either because the client has stopped seeking treatment or the treating sources did not respond to SSA’s requests for information. You may be able to avoid even having the consultative exams scheduled if you just keep up with your own medical treatment and make sure your doctor cooperates by providing information.

You should be aware that some of the environmental doctors may not want to write any reports to anyone. I suspect that they may be confusing the Social Security disabiltiy process with other legal claims and think they may be required to give a deposition. The Social Security claims are non adversarial and the Rules of Evidence don’t apply so no one has to come in and testify if they don’t want to do so. Usually just reports and records are submitted, although I at least try to get the treating doctor to testify by telephone if possible.

I also advise my clients not to go in person to the SSA offices to file their applications or appeals, for the same reasons, and not to go to the hearing itself. I request that the hearings be held on a speakerphone in the judge’s office and I am also on the speakerphone, as are any live witnesses that I use. This avoids the problem of having the judge make a snap diagnosis of whether or not the client is or is not having a reaction to the hearing room and office building.

Sometimes I have trouble getting a particular judge to agree to this, which alerts me to the judge’s attitude towards the MCS diagnosis in advance and allows an opportunity to try to educate him/her as to the problems faced by my client in trying to get to a job. I find that making them go through the exercise of trying to do all of the things they would need to do to accomodate the MCS can be very helpful in helping them understand the obstacles that need to be overcome in order for the client to be able to work.

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Michael Walkup

19. Feb, 2009

To Leslie:

I win most of my MCS disabiltiy cases at SSA. The success rate is a bit lower than on other cases but not by a great deal. Why don’t you contact me and I can take a look at your situation? For SSDI the fee is on a contingency. you just have to pay costs for medical records and reports.

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