The Canary Report

Multiple Chemical Sensitivity and Social Security Disability, Part 6

Posted on Oct 21, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

In addition to or instead of benefits under Social Security Disability Insurance or Title II of the Social Security Act, you may be entitled to Supplementary Security Income benefits.

Post by Michael Walkup, attorney at law.

In my last column, I discussed circumstances of re-filing your Social Security Disability Insurance application at the time of taking an Appeals Council appeal, while still pursuing that appeal. Let me talk a bit more about re-filing for SSDI, and then also discuss Supplementary Security Income in relation to SSDI and Medicaid.

Re-Opening Claim for SSDI

Again, as I have discussed in previously, many Multiple Chemical Sensitivity sufferers have older applications that they did not appeal or tried to return to work and dropped their claims. In some circumstances, these earlier applications can be reopened. If you file a new application for benefits, it’s considered a constructive request to re-open any prior claims. If you re-file within one year of the Initial Denial decision, the claim is automatically re-opened. The prior claims can also be re-opened if a new application is filed within four years of the Initial Denial and you submit new and material evidence that was not available at the time of the original application or was not obtained and used in the decision. You can also re-open at any time if there is a severe mental impairment, which prevented you from acting in your own behalf.

The advantage of re-opening is that all of the benefits which had accrued during the original application can be obtained if you are successful, not just the ones that accrue after filing the new application. This can mean a fairly large award can be obtained.

Bear in mind that the time is calculated from the first denial letter you received on your claim, not the Administrative Law Judge decision or Appeals Council decision.

Supplementary Security Income

In addition to or instead of benefits under SSDI or Title II of the Social Security Act, you may be entitled to Supplementary Security Income benefits, or SSI.

SSI is basically a welfare program and allows people who are disabled and also are poor enough to fall under the federal poverty guidelines, to receive benefits if they are unable to work. People over 65 who do not have other income or resources automatically get SSI.

An important difference between the SSI benefits and the SSDI program is that for SSI you do not have to have enough “current credits” in covered employment or to ever have had a work history. This can be an advantage to those people who may only have worked a short time, or were homemakers for many years before becoming disabled, or who did a lot of part time work or work in which they were paid in cash or were self employed and did not pay taxes.

However, to get SSI benefits, you have to also be poor enough, which tends to preclude people who are married with working spouses. Also, if you are receiving “in kind” support, such as having your rent covered by a friend or relative, it will reduce the amount you may receive.

Another advantage of the SSI benefits is that there is no “waiting period” between the time you became disabled and first month in which benefits can be paid. However, there is also no payment for retroactive benefits prior to the month in which the SSI application is made, whereas with SSDI you can get retroactive benefits for up to a year before the month in which you applied.

Medicaid is available if you are approved for SSI but not Medicare.

If your SSDI monthly payment is less than the current SSI monthly amount, you can receive enough SSI in combination with the SSDI to bring you up to the SSI payment if you otherwise qualify.

To be continued.

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Michael 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.

Continue Reading

Tags: Disability Rights, Indoor Pollution, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Work

Multiple Chemical Sensitivity and Social Security Disability, Part 5

Posted on Sep 26, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

Appeals: You can estimate that it will take at least a year for the Appeals Council to render a decision.

Post by Michael Walkup, attorney at law.

Although each stage of the Social Security Disability process can be called an “appeal,” what I will be talking about here are appeals from adverse decisions following a hearing before an Administrative Law Judge (ALJ).

An adverse ALJ decision will be called an “Unfavorable Decision.” You may also appeal a “Partially Favorable Decision,” which will be a decision in which you were awarded some, but not all, of the benefits you were seeking. If you won entirely, it will be called a “Fully Favorable Decision.” You cannot appeal a Fully Favorable Decision even if you don’t like the rationale that was used to award the benefits, e.g. mental impairment.

You have 60 days to appeal an adverse decision which is done by filling out a form and sending it to the Hearings Office. The entire file, including the decision and a disc of the hearing testimony, will be sent to the Appeals Council in Baltimore, Maryland. You can send in additional evidence and make additional arguments, which again are done in writing only, to the Appeals Council.

You can estimate that it will take at least a year for the Appeals Council to render a decision. You can keep updating your file and adding evidence while that is going on. The average amount of time the person reviewing your file will spend on your case for the review is about fifteen minutes, so keep any comments short and to the point.

To the extent that anything favorable happens at the Appeals Council it will be probably be to remand the case back for an additional hearing with instructions to the ALJ rather than an outright reversal. The exception to this would be if there is some definitive evidence of a non Multiple Chemical Sensitivity condition which is disabling, such as bi polar disorder, for example, that was not raised before, or some definitive testing. This will not tend to apply in MCS cases, so you should at best look forward to a remand for an additional hearing. The remand hearing will be in front of the same judge as denied the claim originally, unless you move out of that Hearing Office’s area, in which case it will be transferred to the new office and re-assigned to a different judge. Your chances will be better if you can get the remand heard by someone new, “hint hint.”

If you lose at the Appeals Council, you can file a lawsuit against the Social Security Administration in the Federal District Court for your area. These are again decided entirely on paper with briefs submitted by both sides. A transcript has to be prepared of the hearing testimony. If the audio disc is not audible, the case will be remanded for a new hearing automatically.

Federal court cases are difficult in MCS claims as the federal courts tend to follow more restrictive rules of evidence for admission of expert testimony. Even though there are no rules of evidence in Social Security Disability cases, I find that these rules tend to influence the thinking of the federal judges nevertheless, making it difficult to convince them to accept what may be considered non-standard tests and opinions. The decision from any federal appeal also will be published nationally, so it can create a bad precedent for others. I therefore tend to discourage federal court appeals in favor of advising my clients to re-file for benefits, where possible.

You may re-file your application at the time of taking the Appeals Council appeal, while still pursuing that appeal. As the Appeals Council will take a year or more to decide your appeal, and, at best, will probably be sending it back for another ALJ hearing, which will take time to schedule, the amount of time it will take on an entirely new application may not be that much different. Also, even if you are still living in the same area, the new application will be assigned randomly to one of six or more ALJ’s in that Hearing Office, so the chances are that you will be assigned a different judge than the one that denied the previous claim.

The exception to this is if your “Date Last Insured” for disability benefits had expired before the date of the ALJ Decision. In that case, you will not be able to re-file a new application and will have to take all available appeals.

I will talk about that more in the next installment.

To be continued.

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Michael 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.

Continue Reading

Tags: Disability Rights, Indoor Pollution, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Support, Work

Multiple Chemical Sensitivity and Social Security Disability, Part 4

Posted on Sep 24, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

The Zen of the hearing.

Post by Michael Walkup, attorney at law.

This is Part 4 on Multiple Chemical Sensitivity and Social Security Disability.

Trying to figure out how to handle a disability hearing for someone with Multiple Chemical Sensitivity is tricky. The usual approaches may not work.

I have found that the outcome of these types of cases is heavily dependent on the underlying attitude of the Administrative Law Judge (ALJ), and the vocational experts (VE) and medical experts (ME).

My clients are all clearly unable to do any type of work due to their impairments, as they describe them. If I think there may be some type of job they can do, I don’t take the case. They also tend to have very similar sets of sensitivities in that they are particularly sensitive to artificial fragrances. That alone makes them unable to function in a work environment where they will be around other people whose habits they can’t control. Usually they have left office types of jobs after numerous attempts to obtain accommodations from their employers and voluntary cooperation from co-workers.

There are usually a host of other sensitivities such as to cleaning products, herbicides, artificial materials used in decorating and construction, oil based fuels, plastics, electromagnetic frequencies, vibrations, paper and ink, etc., which further seal the deal.

Nevertheless, you do run into judges and experts who don’t “get it” and try to either say that the condition doesn’t exist, and/or that it is a mental impairment. If the mental impairment is judged to be serious enough, you can win on that basis, but they may feel that it is not that severe because they use the criteria used to judge other mental conditions like depression, anxiety, bi-polar, etc., and you don’t meet those. What to do?

Since I do cases all over the country, I usually don’t know anything about the judge going in. I therefore present the case the same way each time, which is to do the following:

(1) I make sure that my client is going for regular treatment right up to the date of the hearing with an environmental doctor of some sort who will do testing and write a favorable report, and possibly testify by telephone.

(2) I try to keep my client from going into situations that might be used to argue that she/he does not have a problem, such as going shopping, to church, and to doctor’s offices who are not environmental specialists. This includes having them refuse to go to examinations by Social Security doctors unless special arrangements can be made, and by having them insist on attending the hearing by telephone rather than in person or at a video conference site. This is assuming, of course, that there is a real sensitivity present that would make those appearances problematic. Often, the actual reactions are delayed so the client’s difficulties are not apparent during the event, which is one reason I like to try to keep my clients out of the situation entirely as the later reaction will often not be witnessed.

(3) I may refer them for testing with specialists who work with MCS patients on a regular basis in addition to their treating doctors.

(4) I try to prevent them from filing for disability insurance, workers compensation, or personal injury claims, which will cause them to be scheduled to go to examinations by unfriendly doctors who will generate reports. If they have already done so, I try to keep those reports out of the Social Security file or insist that I be allowed to cross examine any outside experts. (Since there is no provision in the Social Security Act to do this, it can be difficult and requires that the report not have been previously sent to Social Security so they have to issue a subpoena for it after a hearing.)

(5) I try to get one or more national experts on chemical sensitivity, who did not treat my client, to testify by telephone. I also submit synopses of the current state of research into MCS, such as recent studies by Canada and Australia, as well as the new ICU 10 Rules in Germany which recognize MCS and eliminated prior references to somatoform disorder for MCS.

(6) I try to emphasize that MCS is probably not an “allergy” as traditionally thought, but is more probably some type of disorder of the central nervous system in which the nerve and brain cells have become hypersensitive to minute amounts of chemicals and overreact when molecules of those chemicals enter the cells. This is not really a part of how medicine is practiced to date, including allergy medicine and neurology, and is more a question of biochemistry or molecular biology in which the experts used by Social Security are usually not well versed.

(7) I usually limit the cross examination of any experts called by Social Security to bring out that they do not have much, or any, direct experience in the treatment of MCS nor have they attended any seminars or read any articles on the subject. I then contrast their lack of experience with that of the experts I have called.

In other words, “Less is More.”

(8) I get the vocational expert to admit that if my client would have to leave work more than once or twice in a month throughout the year, there would be no jobs that would be considered to be available, and that it would be impossible to police all of the chemicals which would cause that sort of reaction, particularly chemical fragrances in a workplace situation that the worker could not control.

Hearings do not generally provide you with much time to get into extensive cross examinations of experts and I find that trying to do that not only usually lands you in trouble, but gives the illusion that “you had a chance to cross examine the witness,” when you were really being rushed along by the judge who had only allocated one hour total for the entire hearing including the testimony of the claimant and the claimant’s witnesses. It is very rare to score any points with an expert on cross examination in their area of expertise even when you have the benefit of pre-trial depositions and discovery, neither of which you have in a Social Security hearing.

By and large I have found this approach to be successful, and have won about 75% of my MCS cases overall. This compares favorably with the more general rate of success for non MCS cases on a national level. On those cases that we lose, we consider further appeals or a re-filing, or both. More on that next time.

To be continued.

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Michael 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.

Continue Reading

Tags: Disability Rights, Indoor Pollution, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Support, Work

Multiple Chemical Sensitivity and Social Security Disability, Part 3

Posted on Jul 22, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

If you are unable to do your regular job, the Social Security Administration will define how much work you can do based on medical opinions, and plug you into the “Grid” to make their determination.

Post by Michael Walkup, attorney at law.

This is Part 3 on Multiple Chemical Sensitivity and Social Security Disability.

This post was revised on 7/27.

Step 5: Vocational (continued from Part 2)

It used to be that the Social Security Administration had a vocational expert and each and every hearing. Vocational experts are people who are experts on jobs. Many of them do job placement for workers compensation insurance carriers. Not only was it expensive to have a live expert at each hearing, but the opinions varied widely. This is not an exact science.

To solve these problems, SSA promulgated regulations in 1978, which set up criteria to be followed to analyze vocational issues. The results were put together in a chart, which looked like a spreadsheet and quickly came to be known as the “Grid.” Under the Grid certain questions are asked, which are: (1) How old is the claimant? (2) How far did the claimant get in school? (3) Does the claimant have any skills? (4) Are any of those skills transferable to lighter work? And, (5) how much physical work can the claimant do despite the impairment or impairments?

In terms of “age,” the only point where that is really considered for most people is if they are over 50. If you are under 50, you have to be unable to do all forms of work. They then proceed in five year increments so there is one category if you are 50 to 55, another if you are 55 to 60 and the final one if you are between 60 and 65. If you are within six months of the next category, you can be bumped up.

For “education,” again there are categories. The first is “less than a High School diploma,” the second is “High School diploma.” That’s it, other than being “illiterate or unable to read and write English.” College and advanced degrees do not matter except in the sense that they confer skills.

For skill levels there is “unskilled,” “semi-skilled,” and “skilled.”

“Transferability of skills” has to do with how long it would take to learn a new job to which your skills could transfer, i.e. 30 days, 60 days, or longer. You can’t transfer skills from unskilled.

[...]

Continue Reading

Tags: Disability Rights, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Work

Multiple Chemical Sensitivity and Social Security Disability, Part 2

Posted on Jun 25, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

In order to be determined “disabled” under the Social Security Act, a five step Sequential Evaluation procedure is employed.

Post by Michael Walkup, attorney at law

This is Part 2 on Multiple Chemical Sensitivity and Social Security Disability.

History

When Congress originally passed the Social Security Act in the 1930s, it did not provide any disability benefits, only retirement income for people over 65. In the 1960s it was amended to also allow for recovery of the same benefit amount that would be realized on retirement, if a wage earner became unable to continue to work prior to age 65 due to physical or mental impairments.

In the 1970s, provisions were added for payment of fees for people representing a claimant in a successful disability claim, to be limited to 25% of the total recovery in retroactive benefits. Attorneys were able to receive the fees directly from the government out of the client’s retroactive benefit check, subject to approval of a fee petition itemizing the time spent on the claim.

In 1979, vocational rules were added to eliminate the need to have vocational experts at every hearing. I will go into more on this later.

In the 1980s, the rules for mental impairments were changed, which had the effect of making it a bit easier to win cases in which mental impairments were present.

In the 1990s, recovery was eliminated for persons whose disability was solely due to drug or alcohol addiction. Attorney’s fees were also modified to allow an automatic payment not to exceed 25% of retroactive benefits provided that the attorney agreed to cap the fees at $4000, which has since been raised to $5300.

Later, a “user fee” of $75 was attached to the direct payment option, to be deducted from the attorney’s fee.

More recently, non attorneys who have been certified by the Social Security Administration to function as representatives were allowed to be paid on the same basis as attorneys. Direct payment of fees was also now allowed on Supplemental Security Income (SSI) claims.

Procedures Used to Evaluate Disability

In order to be determined to be “disabled” under the Social Security Act for either disability benefits (SSDI) or Supplemental Security Income (SSI) benefits, a five step Sequential Evaluation procedure is employed.

Step One: Work

The first step is to determine if the claimant is performing what is called Substantial Gainful Activity (SGA). SGA is defined as work in “competitive employment” at which the individual is earning a certain minimum monthly amount in gross wages (before deductions). The current monthly amount is about $900.

“Competitive employment” means employment that exists in the general employment marketplace and excludes “sympathetic employment” and employment in “vocational workshops.” This may have particular application to Multiple Chemical Sensitivity sufferers who require extensive special accommodations to work, or who are allowed to work from home.

If the claimant is “working” under this definition, he/she is not considered “disabled” and no benefits are payable.

Step Two: Severe Medically Determinable Impairment

[...]

Continue Reading

Tags: Disability Rights, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Support, Work

Multiple Chemical Sensitivity and Social Security Disability, Part 1

Posted on Jun 01, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

MCS and SSD: A chink in the armor?

Post by Michael Walkup, attorney at law

This is Part 1 on Multiple Chemical Sensitivity and Social Security Disability.

You might want to think about the legal system and society in general as wearing a suit of armor, like the Knights of Olde, when it comes to Multiple Chemical Sensitivity/Environmental Illness claims. If the MCS people are right, much of western civilization as we know it is called into question, as it has been based to a large extent on the use of ever increasing amounts of chemicals. They can’t allow that to happen. There’s too much money involved.

The medical profession, unfortunately, has played a large role in this due to their reliance on pharmaceuticals. The legal system long ago embraced the MD’s as the only valid source of information on health issues, to the extent that the word “medicine,” which simply means the use of drugs in the treatment of health conditions, has become synonymous with “health care” and with science itself.

Up until very recently, the Social Security Administration rules did not even allow any evidence to be considered as coming from an “expert” unless it came from an MD, DO, or PhD in psychology. If your chiropractor submitted a report, it was treated as a “lay observation” and was accorded the same weight as a letter from you next door neighbor (Joe the Plumber).

In the previous articles, I have talked about how difficult it is to obtain any benefits or compensation from: (1) disability insurance plans; (2) workers compensation claims; (3) litigation; and (4) the American with Disabilities Act.  I should point out as well that I have not been talking about greedy people wanting to get money out of somebody or greedy lawyers looking for fees. What is usually involved in these cases is simply keeping a roof over someone’s head who has lost their job and can’t work anywhere else, and perhaps enabling them to pay for some health care treatment. No one is getting rich here. We just want to live.

So, what else is there? Is there a “chink in the armor” someplace?

Maybe.

Sometimes.

I handled my first Social Security Disability case in the late 1970s.  At that time no one had really heard of it, and you could count the lawyers representing people in that field, even in a major metropolitan area, on the fingers of one hand.

Over the ensuing years, I took in more and more such cases until, by the late 1980s, it was the bulk of my practice. After developing Fibromyalgia Syndrome (FMS) myself in the mid-’80s I started handling a disproportionate amount of those cases compared to my expanding field of colleagues. Even so, I had never encountered a client with chemical sensitivities and had never heard of it until I met “Doris” (not her real name).

Doris worked with my wife and lived a block away from us in our city neighborhood, so I got to know her and her husband quite well. Both were journalists like my wife and we had a lot in common. We went to each other’s houses for dinners and went out to eat at local restaurants. She and my wife car pooled to work.

I happened to also be the precinct captain for our precinct for our local reform oriented city councilman and in that capacity had been to every home in the precinct. Shortly before Doris and her husband had moved in, I had stopped by a two-flat building where I was greeted by the young owner who was in the middle of renovating it before he rented it out. This seemed like a positive development. What I did not know was that he was using Urea Formaldehyde foam insulation in all of the exterior walls.

Everything was normal after Doris and her husband moved in and remained that way for the two years that we knew them. Then Doris got another journalism job working in a building that was undergoing renovation. She also became pregnant around that time. Suddenly, we were no longer in their social loop and, even after the baby was born, weren’t invited over to see her. It was a mystery.  Had we said something?

Then I got a call from Doris. It seems that she hadn’t been working for some time and had applied for disability benefits. She hadn’t wanted to hire me because she was embarrassed about it, but now she had gone to a hearing using another lawyer and had lost and wanted me to do the appeal. We were invited over now to see the baby.

When we got to their apartment it had been stripped bare. Her husband had been an art critic and his entire art collection had been removed from the walls which were now covered in tin foil. Doris confided in us both that she had developed a strange health problem which she eventually learned was an “environmental illness” after seeing Dr. Theron Randolph (whom I had not heard of prior to that).

To make a long story short, I won the appeal only by having her go to see a psychologist and we were granted a new hearing. In the meantime, Doris and her family had moved into her parent’s home in a nearby city. When I went to meet her before the hearing, I had to stand outside on a stepladder and talk to her through a plate glass window. Her house had been completely stripped down and she and her husband slept on bedsprings. She could not read or watch TV or listen to the radio.

Her husband had to shower in the basement when he came home from work and put on fresh clothes before coming upstairs. One day when he had stopped in a bookstore on the way home, she noticed it even though he had taken and shower and changed clothes. I began to think from that there might be something going on here.

We did the hearing, with her husband being the only witness, and won based on the psychological evidence. This, however, caused her to lose the disability insurance benefits due to their exclusion for mental impairments. I tried to explain to her that this would have happened anyway but she wouldn’t listen, and I didn’t hear from her again for 20 years. By the time she called, I was able to tell her that I had MCS myself and had closed my office and gone on disability.

Over the intervening years I had a few more such cases. They were all pretty much approved based on mental impairment issues, even though the clients seemed more or less normal. I ran into one of them again years later after we had moved out to the far suburbs and I had developed the MCS problem myself. She was at our 200-member church, and neither of us had recognized each other until I got up one Sunday and told the congregation about my problem, and she introduced herself afterward.

Next article: Light at the end of the tunnel?

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Michael 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.

Continue Reading

Tags: Disability Rights, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Work

Multiple Chemical Sensitivity and the ADA

Posted on May 03, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

Americans with Disabilities Act.

Post by Michael Walkup, attorney at law.

I get a lot of emails from people who are still trying to work and are attempting to get their employers to provide them with some type of accommodation for their chemical sensitivities. Basically, they are trying to force a reluctant employer to do something that the employer is not willing to do and want to know if they can use the Americans with Disabilities Act (ADA) or the federal counterpart.

Until very recently, this has not been a fruitful approach. When the ADA was first passed, a lot of people were hopeful, or apprehensive depending on their situation, that it would revolutionize the workplace. If you just read the language of the ADA, it would seem to require employers to do all sorts of things to accommodate people, and might have a substantial impact on how work injury claims are handled as well.

I remember being deluged with seminar offers in the early 90′s about the ADA. Speakers went into dizzying detail about all of the provisions and their impact on employment law, workers compensation, and disability benefits. A lot of these were really thinly disguised marketing efforts by lawyers looking to get hired by employers. They put quite a scare into them.

Then the federal courts got a hold of the cases on appeal and basically shut down the entire ADA by the restrictive way they interpreted it. I think they were trying to avoid having their already crowded dockets flooded by a wave of ADA cases, but the end result is that the law in its application was essentially gutted. The seminars mainly stopped as well. Employers no longer needed to worry and hire lawyers.

Under the ADA, you have to file a complaint with the Federal Equal Employment Opportunity Commission.  They will try to informally resolve the matter, and may schedule a conference or hold a hearing. The EEOC is also charged with handling all cases involving racial, gender, age, and other forms of discrimination prohibited by the Federal Civil Rights Act, and already had their hands full before the ADA came along.

As a practical matter, it is difficult to ask an employer to make an accommodation for someone with Multiple Chemical Sensitivity and/or Environmental Illness (MCS/EI). An employer does not want to regulate the wearing of perfume by other employees, pull out the synthetic carpet, install windows that open, or change what chemicals the cleaning crew is using. Similarly, they may not feel comfortable with having an employee work solely from home. This, at least, seems to be the way the EEOC has viewed it up to now.

There have recently been some minor language changes in the ADA pertaining to the definition of disability so we will have to wait and see what effect that has on MCS/EI cases. There is also a recent Canadian study where they suggest a number of accommodations that employers could make (although they mention in the same study that the American rules are much more restrictive).

In the meantime, although I can work with clients in any part of the country on ADA issues, I also tell them that they may wind up having to quit and apply for disability. These are actually the reasons that people with MCS/EI are disabled.  It’s not that they can’t do the job, it’s that people won’t cooperate, and these exposures can’t be avoided outside of the home environment.

Link to all columns by Michael Walkup.

###

This series on Multiple Chemical Sensitivity and disability rights is written by Michael Walkup, attorney at law.

Michael 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.

Continue Reading

Tags: ADA, Disability Rights, Environmental Illness, Law, MCS, Multiple Chemical Sensitivity, Worker's Rights

MCS and abuse: Assault parallels for subsidised housing

Posted on Apr 18, 2009 by Susie Collins in Blog, Disability Rights, Linda Sepp, MCS

People with Multiple Chemical Sensitivities who live in shared housing have a right to protection from chemical assault.

(Editor’s Note: Although she’s enriched the conversation at The Canary Report for many months, this is the first post by our chief media researcher Linda. Along with her invaluable contributions to The Canary Report, Linda also has contributed to MCS America and other MCS and environmental health organizations. Diagnosed with MCS in 1994, she is a Canadian mother of both two- and four-leggeds, and  hopes to have safe housing soon, where she can recover enough to become a storyteller who inspires people to do the right thing simply because they can. Read Linda’s full bio on our Contributor’s page.)

If we have MCS, and share housing, we are almost guaranteed to be subjected to assaults from other people’s chemicals entering our air and our brains and bodies. We often cannot afford safe housing.

Women who are abused and are in need of subsidized housing can be fast-tracked. I think we should work on having a similar form for Multiple Chemical Sensitivities.

Anyone able to help with this?

[...]

Continue Reading

Tags: Chemicals, Disability Rights, Housing, MCS, Multiple Chemical Sensitivity

Litigation and Multiple Chemical Sensitivity

Posted on Apr 01, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

Litigation, as used here, refers to lawsuits against individuals or corporate or governmental entities that may be responsible for inflicting some insult that triggered or aggravated an MCS/EI condition.

Post by Michael Walkup.

In my previous articles in this series, I discussed disability insurance plans and workers compensation benefits claims for people who have developed Multiple Chemical Sensitivity/Environmental Illness (MCS/EI). Before going into a detailed discussion of Social Security Disability, I wanted to touch on one more potential option for recovery, namely litigation.

Litigation, as used here, refers to lawsuits against individuals or corporate or governmental entities that may be responsible for inflicting some insult that triggered or aggravated an MCS/EI condition. These would be similar in concept to suing the person who rear-ended your vehicle while you were stopped for a traffic signal. What you are trying to show is that you were injured because the other party was “negligent.” Negligence means the doing of something that a reasonable person would not have done under the circumstances, or the failure to do something that a reasonable person would have done under the circumstances.

There is also another concept known in the products liability field of “strict liability” where a maker of an “unreasonably dangerous” product may be responsible regardless of actual negligence. Governmental bodies, such as municipalities, state governments, the federal government, on the other hand, have “qualified immunity” in which they are immune from liability unless they have acted with “gross negligence” or were “willful and wanton.”  This can also mean that they acted with a “reckless disregard” of the consequences of their actions or inactions.

Contrary to popular belief, there is no such thing as someone being liable automatically if there is an injury “on their property.” You still have to prove that they were negligent.

Finally, in order to become liable for an injury, the other party has to have owed a “legal duty” to the person who was injured to avoid injuring them. If you produce or sell a product, sell or rent a house to someone, or take your car out on the roadways, you owe a duty to anyone who might reasonably be expected to become injured if you are negligent.

One question I hear a lot is, “Can I sue the doctor that the insurance company sent me to for an examination?” Basically, no. A doctor who examines you for the purpose of a claim or lawsuit, or to qualify you for insurance, does not owe you a “duty” in terms of medical malpractice or negligence and cannot be sued by you if he/she, for example, exposes you to something to which you are sensitive and makes you worse. The insurance company that sent you there might, if they know about your condition, be liable, but not the doctor. If you were sent to the doctor by the government, such as for a Social Security Disability claim, the government is immune and cannot be sued.

You also can’t file a lawsuit for anything that is covered under the workers compensation laws of your state. What this means is that if you were injured or exposed at work, you cannot sue your employer in court. You are limited to going through the workers compensation system in your state and are limited to the types of benefits that are payable there. The up side to this is that you don’t have to prove negligence in a workers compensation claim. More is covered on this in my previous article.

You may, however, be able to sue a third party even if your injury or exposure was work related. A third party would be someone other than your employer who may have been negligent and whose negligence may have caused or contributed to the problem. An example of this would be if your employer rents space in a building but does not own the building, and you develop problems associated with sick building syndrome. You can then sue the owner of the building. Even if your employer does own the building, you might be able to sue the builder or the architect, or both. This is what happened in the county courthouse building I described in the last article.

Such a suit would be in addition to any workers compensation claim you may have. There would also not be any offset of the settlement per se but the responsible party would have to reimburse the workers compensation carrier for a portion of the benefits paid which can reduce your end of the recovery.

Mold Cases

Mold cases have been more successful but you may have difficulty tying the mold exposure to a more global sensitivity to general environmental exposures or proving that you became completely disabled from the mold exposure. I will be taking up the medical/legal issues further in a later article.

Product Cases

There have been a lot of cases involving various products, especially pharmaceuticals. Usually these are done as class actions so that the huge expert witness expenses can be spread out over a large number of cases. Again, good luck in showing that you have developed a sensitivity to perfumes from a pill you took, and which prevents you from working for the rest of your life and forces you to live in a tent in the desert, but some type of recovery may be possible on at least a limited basis.

Federal Court

You want to stay completely out of federal court if you have MCS/EI that you are trying to tie to something to which you were exposed.

The issues of what causes what, and whether you can develop a more generalized impairment from exposure to some particular thing, are hard enough, but the federal courts impose an evidentiary rule which they made up a few years ago that makes it virtually impossible to do anything on a chemical sensitivity case.

The rule to which I am referring came out of a case in which the plaintiff’s name was Daubert and is therefore now called the Daubert Rule. The purpose of this was to limit what was referred to as “junk science” from the federal courts, and requires that before any expert evidence is admissible; it has to be shown to be generally accepted in the medical or scientific community. It is very easy for people defending these cases to find an expert who will say that MCS/EI is not generally accepted, and that anyone who attempts to treat it and says otherwise is a quack and charlatan. Once this happens, the case pretty much is over unless you can bring in other types of evidence from other sources or call the condition something else.

Again, it is important that you consult with an attorney in your state on any particular litigation case you think you may have as these are often matters of state law which may vary. There have been some success stories in recent years, so there may be some hope.

Link to all columns by Michael Walkup.

###

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.

Continue Reading

Tags: Disability Rights, Environmental Health, Environmental Illness, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Work

Multiple Chemical Sensitivity and workers compensation

Posted on Mar 01, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

In order to obtain workers compensation benefits, you must be able to show the work place “caused, aggravated, or accelerated” your impairment.

Post by Michael Walkup.

In my last article, I discussed the pitfalls of going after disability insurance benefits for people who have become unable to work due to Multiple Chemical Sensitivity (MCS) and/or Environmental Illness (EI). Here, I will discuss workers compensation benefits.

Workers compensation benefits involve state, rather than federal law, and therefore may differ somewhat from state to state. You should consult with a workers’ compensation lawyer in your state if you are seriously contemplating pursuing a workers compensation claim.

Having said that, most workers compensation laws are broadly similar and tend to be patterned on the earlier states to enact them, which includes my state. I used to practice extensively in workers compensation claims in my state before I developed MCS.

In general, workers compensation claims are intended to provide an alternative to lawsuits where an individual becomes injured as a result of the conditions of their employment. Benefits are limited to weekly payments usually of two-thirds of pre-injury earnings, payment of medical expenses related to the injury, and, in some cases, lump sum payments. They are handled outside of the court system in special administrative agencies in each state which generally have a relatively informal arbitration system in place to resolve disputes. Appeals may then be taken to court. Appellate review is typically limited to determining if the decision of the agency is “against the manifest weight of the evidence.”

In order to obtain workers compensation benefits, you have to be able to show that the work place “caused, aggravated, or accelerated” your impairment. Additionally, you must show that the employment “increased the risk” of the injury or impairment beyond that which would be experienced by the public at large outside of the employment.

In MCS/EI cases, work related connections tend to fall in one of two broad categories: (1) exposure to noxious chemicals; and (2) “sick building syndrome.”

Chemical exposure cases

What I am calling “chemical exposure cases” refers here to exposures in the workplace to chemicals that are generally regarded as dangerous and toxic, and which are not usually found outside of the workplace. As an example, one of my clients worked as a custodian for a school district which had an indoor pool. There were two lines that fed chlorine on the one hand and an acid on the other, which ran through the area in which she worked. One night the lines had both sprung leaks and the liquid from both had combined on the floor to produce a pool of hydrochloric acid. When she arrived in the morning she was greeted by a cloud of hydrochloric acid fumes and developed lung problems.

This is clear enough. The problem came next. After this exposure, not only did she become sensitive to hydrochloric acid and other strong chemical fumes, but to perfumes and other normally occurring chemicals. Although she was moved out of the maintenance department and given a job working in a classroom, she continued to experience symptoms from fragrances, cleaning products, etc., and sought total disability from the school district.

Unfortunately, I was advised by the workers compensation attorney in her state to whom I had referred her, that the state’s Industrial Board would only recognize her as having limitations to the type of chemical to which she was exposed, and was unlikely to be willing to expand that to a recognition that she could develop a sensitivity to chemicals to which other people do not react. We had a similar case in my state which involved my own EI doctor as the expert witness. This is probably common in many states and you should check with a local attorney who is knowledgeable in workers compensation in your state for further advice.

“Sick building” cases

The second broad area in which these claims can arise is the so called “sick building syndrome” in which people who are confined in newly constructed or newly remodeled buildings where the windows don’t open develop symptoms. We had a well known case in our state where one of the large suburban counties built a new complex for their court system and moved everyone out there from the older turn of the century buildings that had been used up to that time.

Shortly after everyone had moved in, a number of people started complaining about symptoms. Over the next few weeks the number of complaints grew to the point where they had to completely close down the new complex and move everyone back into the old buildings. It took over a year of retrofitting of the new building before they could move back in, and many of them filed workers compensation claims. I practiced there at the time and can tell you it was very inconvenient to keep shuttling back and forth.

Ironically, I happened to run into the architect for the building at a party shortly afterwards and listened to him complain at length that there was nothing wrong with the building and it had all been a case of “mass hysteria.” I explained to him that it wasn’t so much his design of the building as the fact that it was filled with new carpeting, synthetic fabrics, new computers, etc., and the windows didn’t open.

My own allergist has been on the local high school board for 25 years and insisted that the new high school, which my daughter attended right after it was finished, be hypo-allergenic and chemically safe. The building is constructed of cinder block, has no carpeting on the floors, and has windows in every room that can be opened. The computers in the computer lab are vented to the outside. No one has had any complaints since it opened.

If you do elect to pursue a workers compensation claim, you need to check out the case history in your state to see what they will recognize. Any such case will probably cost you several thousand dollars in expert witness fees and may or may not be successful.  Again, some states are much more enlightened than others on this issue.

Be aware that any benefits you receive under workers compensation may cause a reduction or “offset” on any disability benefits you may receive from Social Security, as well as on any disability benefits under an insurance policy. See my website for information on how this may be avoided in some cases.

Link to all columns by Michael Walkup.

###

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.

Continue Reading

Tags: Air, Chemicals, Disability Rights, Environmental Illness, Health, Indoor Pollution, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Work

Multiple Chemical Sensitivity and disability insurance claims

Posted on Feb 17, 2009 by Susie Collins in Blog, Disability Rights, MCS, Michael Walkup

It’s important to understand the difference between two types of disability insurance plans, as the rules and procedures are quite different for each.

Post by Michael Walkup.

More on disability insurance claims

In the last article, I briefly reviewed some of the various disability programs that are potentially available to someone who has become unable to work due to Multiple Chemical Sensitivity and related conditions. I recommended that disability insurance claims be undertaken with some reticence for various reasons, and that a claim for Social Security Disability and/or Supplemental Security Income might be a better idea, at least initially.

In this article I will explain further the pitfalls in pursuing disability insurance claims for MCS and Environmental Illness.

First of all, it is important to understand the difference between two types of disability insurance plans, as the rules and procedures are quite different for each.

Employer Sponsored Plans

For most people, the only type of disability insurance they will have when they become unable to work is one provided by their last employer. These plans, which are known as employer sponsored plans, are governed by a special federal law known as the Employee Retirement Income Security Act, or ERISA.

As has become common in recent years (the “Clear Skies Initiative,” ” No Child Left Behind,” “Patriot Act,” etc.), the name for this law is the opposite of what it really does, which, in this case, is to take away legal rights from people who have either health, disability, or retirement  insurance through their employers.

With the Obama Administration, efforts may be made to amend various aspects of ERISA, but for now at least, we have to deal with the law as it stands and has stood since it was signed into law by President Richard Nixon in 1974 immediately before he announced he was resigning in disgrace.

Under ERISA, once you have exhausted your appeals within the insurance policy with the claims department of the insurer, who obviously don’t want to pay you if they think they can get away with it, your only other recourse is to file for a review in court. Although you can file in state court in your jurisdiction, it can be “removed” to the federal court on motion of the insurance company, which always happens.

Once in federal court, the review of the decision of the insurance company is basically presumed to be correct unless you, the insured, can prove that the insurance company’s decision was “arbitrary and capricious.” As you might gather from the way that sounds, this essentially means that you have to prove that the insurance company denial of benefits was basically “out in left field,” and cannot be supported by any rational view of the evidence.

You also have the additional burden in federal court to use only medical and scientific evidence which has been generally accepted by the medical and scientific community. In MCS, this is definitely not the case as there is a huge dispute about the validity of the MCS diagnosis or the mere existence of the condition. You also cannot introduce any new evidence in the federal court than that which you gave to the insurance company on your application and appeals.

Individual (Private) Plans

In some cases you may have a private disability policy. To get one of these you would have had to go out and buy one and pay 100% of the premiums yourself. Usually the only people who have these are self-employed professionals like doctors, lawyers and dentists, or small business owners. Some people may have a variation of this in terms of a policy that pays their mortgage or car payment in case of loss of income due to a disability.

The good thing about the private policies is that ERISA has no application to them. They are treated as regular contracts and you can sue on them in state court as soon as you are denied benefits. Once in state court, you can request a jury trial and the jury decides the case as an original review. This means that if they feel you are disabled, you win. Depending on the state, you may or may not have to contend with the “generally medically accepted” rule of evidence.

On the down side, the case can be removed back to federal court under “diversity” jurisdiction, if the insurance company is incorporated in a state different from yours, or has designated a place of suit in the contract. In that event, you may find yourself having to deal with it in, say, Delaware or California, and getting a lawyer in that state in addition to the one you originally consulted in your state.

Also, a jury trial is very time consuming, and lawyers usually are not going to do it on a contingency basis, especially if it involves a controversial diagnosis such as MCS. You are probably looking at a six figure legal fee, plus thousands in expert witness costs, and the case will take several years.

The Large Print Giveth: The Fine Print Taketh Away

Many insurance policies, whether employer sponsored or not, may also have various exclusions and limitations that can affect your situation in particular.

For example, many policies have a limitation on “mental impairments,” where they will only pay benefits for two years if the claim involves any sort of mental problem. It is easy to put MCS in a category where it is considered to be a mental problem, the most common being to consider it as a “somatoform disorder.” This is not quite the same as saying you are malingering or that it is “all in your head.” What it means is that you have an actual physical reaction, but the physical reaction is being caused by a mental state of some kind. In either event, it can lead to a limitation of benefits, and so is a prime defense in MCS, Fibromyalgia Syndrome (FMS) and Chronic Fatigue Syndrome cases (CFS).

In a new twist, some policies have added a similar limitation if the condition causing the disability is “self reported.” This means that there is no “accepted” medical test that can objectively prove the impairment, so the only evidence is what the patient says about their symptoms, which is typically the case in MCS, FMS and CFS cases. I suspect that this wrinkle was introduced precisely to allow the insurance companies to get out from under these types of claims and avoid endless litigation. Ironically, this may allow for more companies to approve these cases with a settlement where they agree to at least pay the two years of benefits but not after that.

Also, be sure you are aware that there are both Long Term and Short Term disability plans. You have to apply for the Short and then the Long after six months if you are still out of work.

Link to all columns by Michael Walkup.

###

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.

Continue Reading

Tags: Disability Rights, Environmental Illness, Law, MCS, Multiple Chemical Sensitivity, Sick Building, Support, Work