Part 11: Employment and disability

11.1.0 Income security: job and/or disability benefits

Note: A Section for Canadians is in the works. Until then, you can find answers on the HepCAN
list, and in the hepc.bull (www.hepcbc.ca).

11.1.1 How do I handle problems about my job?

If your work is, or will likely be, affected by your illness, educate your boss about your condition. Do this soon.
You may need their support later when more problems may arise, and it will be easier to educate them while you are still relatively productive and “credible”.

Understand that you might have to make some severe changes: a change of job, or perhaps an involuntary loss of your job and a shift to disability benefits.

Beware of the trap of losing important disability benefits if you switch to part time work. Many HCV patients whose health was spiraling downwards had switched to part-time work to preserve their place with their employer. Later, when their health deteriorated even more and they needed to seek disability benefits, they found out too late that those benefits for a part-time employee did not include a livable income, whereas if they had gone straight from full-time to disability, the disability payments were much more livable. Be careful.

11.1.2 What problems do I face in seeking disability benefits?

You can order a Disability Workbook for Social Security Applicants for $20.00 from: Physicians’ Disability Services, Inc., P. O. Box 827, Arnold, Maryland 21012

11.1.3 Applying for SSI / SSDI

According the to Social Security Administration’s SSA Pub.No. 05-10029 April 1995, the definition of “disability” is as follows:

“Disability under Social Security is based on your inability to work. You will be considered disabled if you are unable to do any kind of work for which you are suited and your disability is expected to last for at least a year or to result in death.”

Are you working? If you are and your earnings average more than $500 a month, you generally cannot be considered disabled.
Is your condition severe? Your impairments must interfere with basic work-related activities for your claim to be considered.
Is your condition found in the list of disabling impairments?
We maintain a list of impairments for each of the major body systems that are so severe they automatically mean you are disabled. If your condition is not on the list, we have to decide if it is of equal severity to an impairment on the list. If it is, your claim is approved. If it is not, we go to the next step.
Can you do the work you did previously? If your condition is severe, but not at the same or equal severity as impairment on the list, then we must determine if it interferes with your ability to do the work you did in the last 15 years. If it does not, your claim will be denied. If it does, your claim will be considered further.
Can you do any other type of work? If you cannot do the work you did in the last 15 years, we then look to see if you can do any other type of work. We consider your age, education, past work experience, and transferable skills, and we review the job demands of occupations as determined by the Department of Labor.

If you cannot do any other kind of work, your claim will be approved.

If you can, your claim will be denied.

To get information from the Social Security Administration, call 1-800-772-1213.

11.1.4 Winning Your Social Security Disability Claim: 15 Mistakes You Cannot Afford to Make!

by Scott E. Davis, Esq. and Scott M. Harris, Esq.

This article reprinted with permissions from the Hep C Connection in Denver Colorado. Although written with the US population in mind, the issues raised below apply equally to filing for disability in Canada. In Canada, however, there is a network of community advocates, paralegals and legal aid lawyers in place who will represent you for free if your finances are limited.

Mistake #1: Assuming that what SSA tells you is true.
Unfortunately, some of the advice that Social Security Administration (SSA) employees provide to the public is incorrect. So if you aren't happy with what SSA told you over the telephone, you'll be glad to know it may not be correct. The problem is, many people don't file a disability claim for years (and go without benefits they deserve) simply because an SSA employee gave them bad information.

Advice: Don't give up on your claim until after you have reviewed your case with a disability lawyer. Disability lawyers know more about the law than SSA employees and will give you correct information.

Mistake #2: Assuming the Social Security Administration will approve your claim.
Many people believe that because they have paid into SSA, their claim should easily be approved when they apply for disability benefits. Many people believe it's just a matter of filling out the forms and going through the process. But this isn't true. SSA denies 70 to 75% of first-time claims. SSA denies 82% of claims that are appealed for Reconsideration. However, the good news is that when cases are heard before judges, nationwide over half (53%) are approved.

Advice: Appeal every denial within 60 days of receipt. Build a strong case by understanding what information Social Security requires. Make sure to present your case properly.

Mistake #3: Assuming the disability forms you fill out will win your case.
Usually they will not. Claimants hurt their case by overstating what they can do. In most cases, SSA and judges rely heavily on medical records as well as your doctor, psychiatrist, and/or psychologist's opinion about your ability to work full-time. If the judge isn't happy with you, if he doesn't believe what you're saying, or if he is looking for a reason to deny your claim, he may look for inconsistencies in answers you provided earlier on the forms. For example, if you answer one way on the form and testify at a hearing to something else, the judge may use the answer on the form to undermine your credibility and support a denial of your claim.

Advice: When completing the forms, be honest, accurate, and brief! You should always answer the question in the space provided--do not attach additional sheets of paper or write in the margins. Also, it is important to assume you are back working full-time on a sustained basis (8 hours per day, 5 days per week) when answering questions about what you are capable of doing.

Mistake #4: Assuming that your medical and/or psychological symptoms will be enough for the judge to approve your claim.
Not true. You need detailed medical records, which document your symptoms and limitations and specific opinions from your doctor, psychiatrist, and/or psychologist if you hope to win your case. Their opinions will only be given weight by the judge if you have received continuous and consistent medical treatment. If you are not meeting regularly with your doctor, you are jeopardizing your case!

Advice: It is critical that you receive continuous and consistent medical treatment and care so you can provide SSA and a judge with current and complete medical records which support your doctors' opinions.

Mistake #5: Assuming your diagnosis will win your claim.
It won't. It's true that SSA needs a diagnosis. But SSA also needs medical proof that your diagnosis causes limitations that are so significant and severe that they preclude your ability to work full-time on a sustained basis.

Advice: Disability cases are won based on your limitations, not your symptoms. Make sure you provide detailed medical records from your doctor that reflect your symptoms, the diagnosis, and your limitations.

Mistake #6: Assuming SSA will be persuaded by any type of medical treatment you choose.
It will not. You can choose any alternative therapies and holistic treatments you desire. After all, you should do whatever it takes to try to get better. However, be aware that SSA and judges are most persuaded by mainstream doctors (M.D., D.O., and psychologists) and how you respond or fail to respond to mainstream treatment. If you are not taking medications or are not receiving mainstream treatment by a mainstream doctor, you may be jeopardizing your claim.

Advice: To win your claim, try to exhaust every medical treatment your mainstream doctors recommend, so you can prove that in spite of doing so, you continue to be unable to work full-time on a sustained basis.

Mistake #7: Assuming your family doctor's opinion is the only one you need.
This may not be a good choice depending upon your diagnosis. If your diagnosis is usually made and treated by a specialist (M.D., D.O., Ph.D.), you should treat with both a board-certified specialist and your family practitioner. From a legal standpoint, you want to show the judge your diagnosis is correct and that you are receiving the best possible medical care. You have a stronger case when your doctor is a specialist who is skilled and experienced at treating people who have your condition. Social Security law generally gives more weight to the opinions of a specialist than a general practitioner. As a result, SSA and the judge will look more closely at the credentials of the doctor who is providing the opinion.

Advice: Get your medical treatment from a specialist because the more skill and experience your doctor
has, the more likely you are to win your claim. Note: If you are a member of an HMO and they will not allow
you to go to a specialist, consult with your disability lawyer, who can help you get appropriate treatment.

Mistake #8: Assuming your doctor will support your claim for disability benefits.
He may not. Some doctors refuse to help patients with their disability claims. Many doctors do not know SSA's definition of disability and believe that one has to be bedridden to qualify. In general, doctors are very conservative in their opinion about a patient's ability to work. Because SSA and a judge will want to know if your doctor supports your claim, it is critical you know the same information! After you have established a relationship with your doctor you should discuss with them the fact that you have filed a claim for disability. Ask if they will support your claim, and if they will not, you should consider finding another doctor because their opinion is not likely to change! It is critical your doctor supports your inability to work full time on a sustained basis!

Advice: As soon as practicable, you should learn whether your doctor supports your disability claim. If not, consider finding a more compassionate doctor who will. One place to find a referral is to attend a local support group for individuals who share your diagnosis.

Mistake #9: Assuming you have to go to SSA's doctor for a medical examination.
Often, SSA wants to a claimant to go a disability examination with a doctor/psychiatrist/psychologist it chooses. Unfortunately, the doctor is not really "independent" and probably performs many of these examinations for SSA each month. In my experience, the majority of the time the doctor will conclude you are not disabled and can return to work. Once this opinion is included in your file SSA and a judge will have sufficient evidence to deny your claim. Here's the good news: SSA rules allow your doctor to perform the disability exam and SSA should pay for all or at least part of it. Naturally, if your doctor supports your disability claim he will probably conclude your condition precludes your ability to work. Once your doctor's exam report is in your file with a conclusion that you are disabled, SSA and a judge may have sufficient medical information to approve your claim.

Advice: This strategy is only possible if you are certain your doctor supports your claim and is willing to do the examination. If you do not have a doctor, or your doctor will not perform the examination, you must go to SSA's doctor or risk having your claim denied or closed out. This strategy really should only be employed by a disability lawyer because complex regulations are involved and must be complied with.

Mistake #10: Assuming an entire year has to pass before you can file a disability claim.
Not true. SSA law requires that before you can be approved one of the following must be true: (1) you have already been disabled and out of work for one year, or (2) your doctors expect that you will be unable to work for a minimum of one year from the date you last worked, or (3) your medical condition is expected to result in death. Too many people have told me that an SSA employee said they could not file a claim until one year had passed since they last worked. This information is totally incorrect and if followed, will almost certainly cost you disability benefits and medical insurance!

Advice: Apply for disability benefits as soon as you or your doctors believe your medical and/or psychological condition will preclude you from working for at least one year. Waiting to file will only cost you benefits that you may not be able to recover.

Mistake #11: Assuming that if you lose before a judge at a hearing, you can simply file another claim.
When you have a hearing before a SSA judge, you do not want to lose. This is because, practically speaking, your best chance at winning is at your first hearing before a judge. True, you can file a second application if you lose at a hearing; however, the second time you go through the process, SSA and a judge will know your first claim was denied. In my opinion, this may have a detrimental effect on your second claim as the second judge will know.

Advice: Make sure your case is properly prepared so you can present your strongest case at the first hearing.

Mistake #12: Assuming you can handle your case without a disability lawyer.
Most people can't. SSA disability laws are complex; even many lawyers do not understand them. To win your claim, you need to very carefully prepare your case from the very beginning. In addition, it is critical to understand what you need to prove legally in order to win your case; if you do not know what you need to prove, why would you risk going before SSA or a judge without knowing how to win your case? The fact that you and your doctor agree you are disabled is not enough to win your case.

Advice: Retain only an experienced disability lawyer. They will help build your case, develop a case strategy, and obtain a complete set of your medical records and critical opinions from your doctor that will maximize your chances of success. More often than not, your doctor will not be familiar with the stringent criteria that SSA and a judge will utilize in determining whether you meet their definition of disability.

Mistake #13: Assuming any lawyer can help you win your claim.
Not true. You want a disability lawyer who is familiar with SSA laws and regulations. Similar to doctors, attorneys generally specialize in a certain area of the law. You wouldn't go to a dentist for a physical examination, so do not pick just "any" attorney to represent you in your disability claim.

Advice: Choose a disability lawyer whose practice is dedicated to representing clients because your odds of winning will increase. A seasoned disability attorney will understand the strategy and tactics that are crucial to helping you win your claim.

Mistake #14: Assuming you should not hire a lawyer until your case has initially been denied.
Not true. You can hire a lawyer any time you wish. Unfortunately, many employees at SSA will tell you that it is not necessary to hire an attorney until you have been initially denied. Following this advice could be fatal to your claim! Why? Because in general, SSA will begin preparing a case against you from the day you file your application!

Advice: You should consult with and/or hire a disability attorney as soon as possible after you file your application. The attorney can explain how the process really works and lay the proper foundation for your case by developing a case strategy. The attorney can also guide your case through the myriad of rules and regulations that are certain to have an effect on your entitlement to benefits.

Mistake #15: Assuming that you cannot afford a lawyer.
Not true. In almost every case, you will only pay the attorney a fee if and when you have won your case and received benefits. SSA law limits the amount of money your lawyer can earn from your disability claim. Generally, by the time you win your claim you will have accrued back benefits. The law mandates the fee can only be 25% of your past benefits and is capped at $4,000. In other words, if your back benefits total $1,000.00, the attorney's fee would be $250.00. The law does not allow your lawyer to charge a fee on your future benefits.

What may be at stake? By way of example, assume a claimant is 45 years old and their monthly disability benefit is $1,000.00. If the person never returns to work before age 65, their disability benefits would total $240,000.00! This amount does not include the value of the lifetime health insurance they would also receive through Medicare or Medicaid.

Advice: Because the amount of the benefits can be staggering, the truth is, you can't afford not to hire an experienced disability attorney!

Scott E. Davis and Scott M. Harris are attorneys who specialize in Social Security and long-term disability claims. More than 50% of their disability practice is devoted to individuals with FMS and/or CFIDS. Mr. Davis and Mr. Harris are located in Scottsdale, Arizona and represent clients throughout the United States. They invite your questions and inquiries about representation by email harris.davis@azbar.org or FAX at (602) 482-4300.

11.1.5 Hepatitis C and disability benefits in British Columbia

Your Doctor(s):
If you have been diagnosed with hepatitis C you should be under the care of a specialist. If you are not, ask your family doctor to recommend one. Your doctors should be your closest allies, both in your battle with hepatitis C and also in obtaining your disability benefits, should you qualify.

Disability Benefits:
There are several types of disability benefits available to residents of BC: Canada Pension Disability Benefits; Disability Benefits from the BC Government; Worker’s Compensation; and various private plans. All have very different qualifications, and procedures, which your local advocate can explain to you.

Advocates:
Advocates are community workers who have a great amount of experience fighting for citizens’ rights in many areas: housing, income assistance, disability benefits, and so forth. Often advocates can be found at community organisations, such as AIDS organisations, or organisations for the disabled, such as the BC Coalition of People with Disabilities, TAPS or the ACPD. They can also be found at various Legal Services Society offices throughout the province. For help in locating an advocate nearest you, you can call the Advocacy Access Project at 1-800-663-1278, or HepCBC at (250) 595-3892.

Often people feel their case is so clear cut that they can take care of it themselves. Big Mistake! Unfortunately, the decision to award disability is not based on how you feel, or even on how you look, but on very special criteria that each disability plan has established. Unless you meet these criteria, you will not get your disability—no matter how deserving you may feel that you are.

Arguing your own case is exhausting. If you are ill, this is the last thing you need. Advocates know the ropes and they are there to help you.

Qualifying for Disability Benefits:
If you are applying for Canada Pension Plan Disability benefits, the most important aspect, aside from your condition, is whether or not you have made enough contributions to the Canada Pension Plan, and when you have made them. If you have not paid into this plan because you have not been working, or have not worked recently, you may not be eligible. Your advocate, or a lawyer from Legal Services, can help you understand whether or not you should apply for CPP Disability. If you are applying for BC Disability Benefits, it can help if you have applied for and received your CPP, but not having CPP Disability will not disqualify you from getting BC Disability Benefits.

Some of the Issues

The Run-around:
Getting disability even if you are really sick is not easy. Often you will need to have lots of papers and doctors appointments and interviews. When you are feeling really sick and tired, it is very frustrating to have to go to one appointment after another, all the while not knowing how you are going to eat, let alone pay the rent.

Hep C and Doctors:
Perhaps the single most important document you will need when making your disability claim is your doctor’s letter. Unfortunately, many doctors, no matter how sympathetic they may be to your plight, do not know how to fill in the form properly. Your advocate can provide you with guidelines that you can give to your doctor, to help him or her fill out the form more effectively, or you may wish to compose a sample letter with your advocate to give to your doctor as a guide.

Sadly, there are still many doctors out there who do not understand the nature of hepatitis C. Many continue to think that it is only a liver disease, and that, unless you are suffering from end-stage liver disease (cirrhosis, ascites, bleeding), you cannot be disabled.

Many doctors and specialists are beginning to understand that hepatitis C, while it does cause liver disease, also causes a host of other problems related to autoimmunity. In fact an article in the American Journal of Gastroenterology states that “up to 70% of patients with chronic hepatitis C” may suffer from autoimmune related disorders.¹

It is the presence of autoimmune activity (your body fighting the hepatitis C virus) that causes the fatigue, muscle aches, confusion, bone aches, feverishness, nausea, itching and mood swings from which people with hepatitis C suffer. Often, none of this can be established by a specific blood test, although some autoimmune disorders do have special “markers” in the blood.

When the Federal Government decided to compensate certain individuals who received tainted blood between 1986 and 1990, they concluded that those under the plan with grade 2 liver fibrosis (a stage of scarring in the liver) would be eligible for “loss of income” payments. In making this decision, the government set a precedent which should make it much easier for anyone with grade 2 fibrosis (non-bridging fibrosis) to qualify for long term disability benefits, which is what “loss of income” payments are.²

Those under the compensation scheme with grade 3 fibrosis (bridging fibrosis) or cirrhosis have been awarded even more because the government recognizes that the more heavily scarred the liver is, the more disabled the person will be.

However, in order for anyone to know to what extent your liver is scarred, you must undergo a liver biopsy, which is not the most pleasant of experiences, but should be standard procedure for everyone with hepatitis C.

Notes:
¹. American Journal of Gastroenterology, Vol 96 number 2, 2001: 910-911.
². Hepatitis C : January 1, 1986-July 1, 1990 Class Actions Settlement, p. 18.

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10.9.0 Help! I Think I Hit a Vein!	Hepatitis C FAQ	Part 12: Important information

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