THE WORK REALITY AND WHAT DEFINES DISABILITY

By Joshua Potter, Esq., Attorney at Law, Pasadena, California

If you are unhappily working with FMS or CFS, but working nevertheless; or if you have had to leave the workplace because of your illness, private long term disability (LTD) and federal social security disability (SSD) are your safety nets. However, to be sure that you land in these nets (should you need them), you have to know who they are designed to catch. In other words, on what basis are awards of disability made and why?

The disability evaluation process has evolved primarily around back and cardio/pulmonary complaints. This is a historical feature left over from a time in which most work disabilities arose out of injuries sustained in heavy manufacturing. For good or bad, our society has evolved into one in which heavy industry has been replaced with lighter work. Injuries and disability are now affecting body systems other than the heart, back and lungs. Presently, the edge of the disability frontier is FMS and the uncharted territories are the realm of severe carpal tunnel syndrome in both wrists (e.g., impingement of the nerves going through the wrists that supply the hands with sensation).

All too frequently, people seeking social security or private long term disability ask, "What do they want? Do I have to be dead first?" While death is a simplistic statement, it may not be far from the mark. Our society's notions of disability are limited in scope and are strict. We are a society which defines itself by exclusion rather than inclusion. The disability process operates in the same restrictive fashion. It is quite possible to obtain disability benefits for a terrible back injury, for a severe lung injury, or for cancerous diseases. It is more difficult to establish disability when the disorder has no definitive blood or urine test...when no known drugs or cures exist.

FMS, like any other "testable" injury can lead to an award of disability benefits in either the federal or private systems. Perspective and perseverance are, however, necessary for success. The mere existence of a disorder such as FMS is not tantamount to a disabling condition. Many people, without investing their last full measure of devotion, are able to work and be productive with chronic disease. The majority of individuals with FMS are working despite their diagnosis. Only a distinct minority of individuals with FMS cannot work (roughly 15-20%). In order to overcome the obstacles in the disability system, it is essential to appreciate and understand what constitutes disability.

Disability does not exist just because FMS prevents you from doing your current or past job. It exists when all work activity is precluded. Individuals who can honestly admit to a high degree of variability in their symptoms are most likely to succeed in getting disability. In our society, we not only expect people to work long and hard, we expect that their work activity at whatever exertional level, in whatever industry, will be performed punctually, regularly, and consistently. We are bound to a time clock and it is for this reason that individuals with severe and chronic FMS cannot work. Disability arises only out of the few days each week in which the FMS symptoms are so severe that it is impossible to leave one's house, to attend a medical appointment, to attend to basic needs such as cooking, shopping, or cleaning. Disability with FMS does not lie in the overwhelming majority of days in which damnable pain and fatigue drive you crazy. You can have 3 to 4 days a week of flu-like symptoms and 1-2 days a week of higher functioning and still not be disabled. Disability exists as a result of employers not being tolerant of random sick days. If employment were truly flexible so that missing one-two days per week at random from your job in each week of the work year could be tolerated, FMS would cease to be a disabling condition in its own right. It is the erratic and unpredictable nature of acute days which define FMS as a potentially disabling condition.

Frequently, individuals lose sight of the fact that the people who are evaluating disability may themselves suffer from impairments which are chronic and irritating. The difference between those individuals and people with severe and chronic FMS, is that those who are working are able to meet the regular attendance demands of the workplace. If you are a skilled employee, perhaps with a degree and not working in an assembly line type job, there is a greater tolerance for absenteeism. However, the upper end of tolerance is approximately three days per month. Employers of unskilled and assembly line workers have significantly less tolerance for health-related absenteeism: generally, the maximum tolerance for health-reiated absenteeism is seven days per year.

Recently, while preparing for yet another disability hearing in which the primary complaint was FMS, I had the pleasure to read a medical report in which a physician scolded a long term disability (LTD) carrier. The doctor wrote, "You continually want me to fill out your forms in which you ask: How much weight can my patient lift? How long can my patient stand on her feet? How long can my patient walk for? These questions are ridiculous. You are not listening to me when I tell you that FMS is not a disease in which such questions are appropriate."

What this means is that an inquiry as to general physical abilities is absolutely meaningless. It poses the wrong questions. The correct question is not how far can you walk, rather it is are there any days in which you are absolutely and unequivocally unable to attend work, and if so, how many days?

If you are unhappily working in spite of your FMS and multiple symptoms, hopefully this will put matters in focus and help you muddle through. For the minority who have left the workplace because of their illness, maybe this information will allow you to put your disability denials in perspective and to formulate a new strategy that will result in the benefits you deserve.

Employment Tips

Disability is a tough road to travel. Here are a some tips you may find helpful:

Take action before things get bad. If your sick days are already irritating your employer, or if you've already had a bad performance review, you've waited too long. Any changes you might want to discuss with your employer will go over much better if they still want you around! It is helpful to be able to emphasize how important your special skills are to a company when you ask your employer for job place modifications.

Work with an occupational therapist (OT). Clearly explain to your physician what your work situation is and ask for a referral. An OT can perform workplace and home assessments and develop a plan of action with you. Suggested changes should make both environments less stressful to your body. And if you approach your employer about changes to your workstation, he or she will be more likely to accept the changes if they are recommendations from an OT.

Look for flexibility. If your job duties vary, separate your work into hard and easy tasks. Save the easy tasks for days when you aren't feeling as well. Or use them to break up the day and reduce the stress of some of the more difficult tasks. Also work with your employer to adjust your hours, set up flex-hours and/or modify your duties. Less hours or lighter work are reasonable alternatives to disability if you are barely holding on.

Stay focused. Don't get side-tracked at work. Save your energy for the tasks that your boss wants you to get done. By keeping your focus, you are more likely to get the most important things done and keep your immediate supervisor happy. You certainly don't want to give him or her extra reasons to be upset with you!

Show your commitment. If your OT recommends an assistive device or you think it may be helpful to you and the cost is not too great, buy and begin using it right away. Be willing to share the relatively inexpensive costs of workplace modifications with your employer to show them that you are serious about helping yourself.

April 1996 . Fibromyalgia Network

All too frequently, people seeking l social security or private long term l disability ask, "What do they want? Do I have to be dead first?"

Upcoming Changes in Disability As part of Social Security Disability reform more cases will be heard without an administrative law judge (ALJ). On the surface this streamlining maneuver may seem good, but remember that ALJs tend to apply care law and take expert medical testimonies, which results in the payment of truly meritorious claims (e.g., ALJs may be more open?minded in their rulings). As part of the proposed reform, social security administration (SSA) attorneys and advisors will be reviewing many cases, which may mean a more strict adherence to written rules and less reliance on collateral expert testimony. That may translate into a tougher time receiving disability for FMS patients without an attorney's assistance. To stream line the disability process, claimants will not be allowed to add evidence or other material to their file when appealing a claim that has been initially denied. That means you need to get your claim in correctly the first time. And in order to do that, everyone should seek legal council up front...otherwise it may be too late! To locate a disability attorney in your town, you may want to contact NOSSCR at (800) 431-2804. Currently, disability attorneys operate on contingency and a fixed fee schedule set by the SSA. If you don't win your case, you don't have to pay legal fees. If you do win, the SSA deducts the attorney fee (25% up to $4,000) from back pay that is usually owed to you. Congress had been flirting with the idea of getting out of the attorney 'fee business,' which could make it much more difficult to find an attorney. Mercifully, disability attorneys are still in business and hope to continue to slug it out on the "Fibro" front with the ALJs or whoever will be hearing your case.