Multiple Sclerosis

Multiple Sclerosis Social Security, Long Term Disability Insurance and Other Disability Benefits. Issues in Proving Disability – What you need to know. John V. Tucker, Esq. The Law Offices of Anderson & Tucker 2101 Fifth Ave. North, St. Petersburg, FL 33713 (727)323-8886 erisa@andersontucker.com

Types of Disability Benefits Disability Insurance – Short Term Disability (STD) Long Term Disability (LTD) Employer Pension Disability Disability Premium Waivers – i.e. Life Insurance Social Security Disability

STD & LTD - Disability Insurance Disability Insurance - 2 different categories: • Benefits you have through your Employer – covered by the Employee Retirement Income Security Act (ERISA) [Note: Does not apply to government or church employees]; • A disability policy you purchased on your own, through an insurance agent. See http://andersontucker.com/fq_FAQ.htm

Group Short and Long Term Disability • Short Term Disability provides benefits to a person for a short period of time. The duration is usually 6 months, although this can vary somewhat from policy to policy. These benefits are provided weekly and pay a varying percentage of a person’s salary, again depending on the policy. • Long Term Disability provides benefits to a person for a much longer period of time. Typically until the person turns age 65. These benefits are provided monthly and typically pay 60%, 66 and2/3% or 50% of person’s salary.

Employer Benefits – ERISA • ERISA is a federal law that limits your rights – convoluted appeals system • Insurers are given great leeway • No jury trials • Federal judges make decisions if you have to file suit to get your benefits • You may have to pay your own attorney fees.

Individual Insurance(includes non-employer groups) • Typically no convoluted appeals • Faster than ERISA claims • If denied, can file a lawsuit • Juries (not lifetime appointee judges) make the decision on your case • If you win, your insurance company must pay your attorney fees in Florida

ERISA Plans: Benefit based on % Employer picks exclusions and limitations Cheaper – and your employer may pay Individual Coverage: Specific $ per month You can select (buy) better coverage with less exclusions More Expensive and you pay all the premium Other Differences Between ERISA and Individual Coverage

Common Exclusions & Limitations That Impact MS Patients • “Self-Reported” Symptoms • Mental and Nervous Conditions • “Objective Evidence” requirements • Deduction for Other Benefits Social Security Disability Veteran’s Benefits Some plans even deduct 401K checks

What Coverage Do You Have? Read Your Plan or Policy • Without it, you don’t know the rules. • If you don’t have it, ask for it from your employer or insurance company – IN WRITING – CERTIFIED MAIL, RETURN RECEIPT REQUESTED!

Self-Reported & Mental Symptoms Often, Disability Insurance Companies will place a limitation on the amount of time they will pay a claimant for both mental and nervous impairments, and, any condition which they believe is not “objectively”♦ verifiable. They call this limitation a “self-reported symptom” limitation. Sample Limitation language: “Disabilities, due to a sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism or drug abuse, have a limited pay period up to 24 months.”

Self-Reported Symptoms (cont.) Sample definition for “self-reported symptoms” : “Self-Reported Symptoms” means the manifestations of your condition which you tell your physician, that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine. Examples of self-reported symptoms include, but are not limited to headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.

Objective Evidence Many LTD policies contain a provision stating that you must provide the Insurance Company with “objective evidence” of your condition or disability, or they do not have to approve your claim. Look in the portion of the policy titled “Proof” or “Proof of Loss” which explains what a claimant must supply to the Insurance Company. Sample Language: The following items, supplied at Your expense, must be a part of Your proof of loss. Failure to do so may delay, suspend or terminate Your benefits: (and then listed as one of the “items” you are required to submit would be the following) -- Objective medical findings which support Your Disability. Objective medical findings include but are not limited to tests, procedures, or clinical examinations commonly accepted in the practice of medicine, for Your disabling condition(s).

BEWARE POLICY EXCLUSIONS! These exclusions and limitations are often a problem for someone who suffers from MS. Before we discuss why, lets talk about other benefits that may be available.

Other Disability Benefits PENSION DISABILITY: You may also qualify for a disability pension through your employer’s (or a former employer’s) pension plan. Similar to taking early retirement, however, in this case, you are taking your pension early due to a disability. ERISA applies to most and benefits are based on the actuarial calculations of the pension plan.

Other Disability Benefits (Cont.) SOCIAL SECURITY DISABILITY & SSI: Government benefits Social Security regulations govern SSD – Title II of the Social Security Act SSI – Title XVI of the Social Security Act

SSD Not for indigents Based on earnings IRS tells SS Many receive over $1500 per month Earnings limitations after approved Medicare eligibility SSI Indigent Program Not earnings based $545 per month Earnings & Asset Limitations after approved Medicaid SSD vs. SSI

Other Income and LTD – How much you may get per month Under nearly every group LTD policy, the insurer will subtract what you get from Social Security. This is not always the case with individual insurance.

The Key to ALL Benefitsis Proving You Are Disabled Under the Applicable Rules • Know the rules • How does your condition meet the rules? • Strongly consider attorney representation EARLY in the process – even before you stop working if you know your condition is degenerating. PLAN! • Insurance rules often conflict with the rules of Social Security – be prepared to coordinate multiple claims and monitor your representative(s). • You may need to make choices between benefits.

How Does MS Fit In? • Remember that under any system of disability, you do not have to rely solely on MS as the basis of your disability. • Describe all problems that affect your ability to work when you apply – from your hair to your toenails. • Understanding MS and how to prove it exists and that it affects you is crucial.

What is Multiple Sclerosis? Multiple sclerosis (MS) is a life-long chronic disease diagnosed primarily in young adults. During an MS attack, inflammation occurs in areas of the white matter of the central nervous system (nerve fibers that are the site of MS lesions) in random patches called plaques. This process is followed by destruction of myelin, which insulates nerve cell fibers in the brain and spinal cord. Myelin facilitates the smooth, high-speed transmission of electrochemical messages between the brain, the spinal cord, and the rest of the body.

How Does MS Reveal Itself? Symptoms of MS may be mild or severe and of long duration or short and appear in various combinations. The initial symptom of MS is often blurred or double vision, red-green color distortion, or even blindness in one eye. Most MS patients experience muscle weakness in their extremities and difficulty with coordination and balance. Most people with MS also exhibit paresthesias, transitory abnormal sensory feeling such as numbness or "pins and needles." Some may experience pain or loss of feeling. About half of people with MS experience cognitive impairments such as difficulties with concentration, attention, memory, and judgment. Such impairments are usually mild, rarely disabling, and intellectual and language abilities are generally spared. Heat may cause temporary worsening of many MS symptoms. Physicians use a neurological examination and take a medical history when they suspect MS. Imaging technologies such as MRI, which provides an anatomical picture of lesions, and MRS (magnetic resonance spectroscopy), which yields information about the biochemistry of the brain. Physicians also may study patients' cerebrospinal fluid and an antibody called immunoglobulin G. No single test unequivocally detects MS. A number of other diseases produce symptoms similar to those seen in MS.

What Causes Multiple Sclerosis? While the exact cause of MS is unknown, most researchers believe that the damage to myelin results from an abnormal response by the body’s immune system. Normally, the immune system defends the body against foreign invaders such as viruses or bacteria. In autoimmune diseases, the body attacks its own tissue. It is believed that MS is an autoimmune disease. In the case of MS, myelin is attacked. Scientists do not yet know what triggers the immune system to do this. Most agree that several factors are involved, including: • Genetics • Gender • Environmental Triggers (Possibilities include viruses, trauma, and heavy metals (toxicology)

Types of Multiple Sclerosis People with MS can expect one of four clinical courses of disease, each of which might be mild, moderate, or severe. 1. Relapsing-Remitting Characteristics: People with this type of MS experience clearly defined flare-ups (also called relapses, attacks, or exacerbations). These are episodes of acute worsening of neurologic function. They are followed by partial or complete recovery periods (remissions) free of disease progression. Frequency: Most common form of MS at time of initial diagnosis. Approximately 85%. 2. Primary-Progressive Characteristics: People with this type of MS experience a slow but nearly continuous worsening of their disease from the onset, with no distinct relapses or remissions. However, there are variations in rates of progression over time, occasional plateaus, and temporary minor improvements. Frequency: Relatively rare. Approximately 10%.

Types of Multiple Sclerosis 3. Secondary-Progressive Characteristics: People with this type of MS experience an initial period of relapsing-remitting disease, followed by a steadily worsening disease course with or without occasional flare-ups, minor recoveries (remissions), or plateaus. Frequency: 50% of people with relapsing-remitting MS developed this form of the disease within 10 years of their initial diagnosis, before introduction of the “disease-modifying” drugs. Long-term data are not yet available to demonstrate if this is significantly delayed by treatment. 4. Progressive-Relapsing Characteristics: People with this type of MS experience a steadily worsening disease from the onset but also have clear acute relapses (attacks or exacerbations), with or without recovery. In contrast to relapsing-remitting MS, the periods between relapses are characterized by continuing disease progression. Frequency: Relatively rare. Approximately 5%.

Diagnosing Multiple Sclerosis. There are no laboratory tests, symptoms, or physical findings that can, by themselves, determine if a person has multiple sclerosis. Furthermore, there are many symptoms of MS that can also be caused by other diseases. Therefore, the MS diagnosis can only be made by carefully ruling out all other possibilities. The long-established criteria for diagnosing MS are: 1. There must be objective evidence of two attacks (i.e. two episodes of demyelination in the central nervous system). An attack, also known as an exacerbation, flare, or relapse, is defined clinically as the sudden appearance or worsening of an MS symptom or symptoms, which lasts at least 24 hours. The objective evidence comes from findings on the neurologic exam and additional tests. 2. The two attacks must be separated in time (at least one month apart) and space (indicated by evidence of inflammation and/or damage in different areas of the central nervous system). 3. There must be no other explanation for these attacks or the symptoms the person is experiencing.

The Clinical Exam in Diagnosing Multiple Sclerosis. Because there is no single test that can be used to confirm MS, the role of a clinical exam in process of diagnosis is important. During this clinical exam, the physician will be do the following: 1. Obtain evidence from the person’s history (looking for Symptoms), 2. Perform a clinical examination (looking for Signs), 3. Have the patient undergo one or more laboratory Tests. A physician often requires all three (Symptoms, Signs and Tests) in order to rule out other possible causes for symptoms and to gather facts consistent with a diagnosis of MS.

Symptoms of Multiple Sclerosis. The range of symptoms experienced by people with MS varies dramatically from person to person. The most common symptoms of MS include: • Fatigue (also called MS lassitude to differentiate it from tiredness resulting from other causes) • Problems with walking • Bowel and/or bladder disturbances • Visual problems • Changes in cognitive function, including problems with memory, attention, and problem-solving • Abnormal sensations such as numbness or "pins and needles" • Changes in sexual function • Pain • Depression and/or mood swings

Symptoms of Multiple Sclerosis (cont). Less common symptoms include: • Tremor • Incoordination • Speech and swallowing problems • Impaired hearing All of these are considered primary symptoms of MS because they are a direct result of demyelination, the destruction of myelin-the fatty sheath that surrounds and insulates nerve fibers in the central nervous system-and of damage to the nerve fibers themselves. Demyelination and neuronal damage impair transmission of nerve impulses to muscles and other organs, resulting in impaired function. Many of these symptoms can be managed effectively with medication, rehabilitation, and other management strategies.

Signs of Multiple Sclerosis The physician will do a series of tests to check for signs that can explain the symptoms or point to disease activity of which a person may not be aware. “Signs” are indications of the disease that are objectively determined by a physician. Some signs might even explain a person’s symptoms, but others have no corresponding symptom.

Signs of Multiple Sclerosis Common signs that can be detected by the doctor during a Physical Examination include: • altered eye movements and abnormal responses of the pupils • subtle changes in speech patterns • altered reflex responses • impaired coordination • sensory disturbances • evidence of spasticity and/or weakness in the arms or legs. The physical examination may consist of the following: • an eye examination, which may reveal the presence of damage to the optic nerve • a check of muscle strength, by gently but firmly pulling and pushing a person’s arms and legs • measuring coordination, usually with a finger-to-nose test, in which a person is asked to bring the tip of an index finger to the nose rapidly, with eyes open and then closed • an examination of body surface sensation, tested with a safety pin, and by a feather or a light touch • a test of vibratory sense, with a vibrating tuning fork placed against a joint or bone so the person experiences a buzz-like sensation • a test of reflexes, using fingers or a small rubber mallet.

The role of Tests in Diagnosing Multiple Sclerosis Laboratory tests may be the crucial element of the diagnosis process. The preferred test, which detects plaques or scarring possibly caused by Multiple Sclerosis, is magnetic resonance imaging (MRI). However, the diagnosis of MS cannot be made solely on the basis of MRI. There are other diseases that cause lesions—areas of damage—in the brain that look like those caused by MS. There are also spots found in healthy individuals, particularly in older persons, which are not related to any ongoing disease process. On the other hand, a normal MRI cannot rule out a diagnosis of MS. About 5% of patients who are confirmed to have MS on the basis of other criteria, do not show any lesions in the brain on MRI. These people may have lesions in the spinal cord or may have lesions that cannot be detected by MRI. Eventually, however, the vast majority of people with MS will have brain and/or spinal lesions on MRI. The longer the MRI remains negative, the more questionable the diagnosis becomes. If the MRI findings continue to be negative more than a year or two after the initial diagnosis is made, every effort should be made to identify another possible cause for the symptoms.

Additional Tests Used in Diagnosing Multiple Sclerosis A clear-cut diagnosis might be made based on an evaluation of symptoms, signs, and the results of an MRI, but additional tests may be ordered as well. These include tests of evoked potential, cerebrospinal fluid, and blood.

Evoked Potential Tests Evoked potential tests measure electrical activity in certain areas of the brain in response to stimulation of specific sensory nerve pathways. These tests are often used to help make a diagnosis of MS, because they can indicate dysfunction along these pathways that is too subtle to be noticed by the person or to show up on neurologic examination. In people with MS, dysfunction is caused by the destruction of myelin—the fatty sheath that surrounds and protects nerve fibers in the central nervous system. Demyelination causes the nerve impulses to be slowed, garbled, or halted altogether, producing the symptoms of MS. The EP test most widely accepted as an aid to an MS diagnosis is the Visual Evoked Potential (VEP). The person sits before a screen on which an alternating checkerboard pattern is displayed. The other EP tests used are the Brainstem Auditory Evoked Potentials test in which the patient hears a series of clicks in each ear, and the Sensory Evoked Potentials test in which short electrical impulses are administered to an arm or leg. While evoked potentials are used to help make a diagnosis of MS, other conditions also produce abnormal results, so the tests are not specific for MS. The information the tests provide needs to be considered along with other laboratory and clinical information before a diagnosis of MS can be made.

Cerebrospinal Fluid (CSF) Cerebrospinal fluid (CSF) is a clear, colorless liquid which bathes the central nervous system. While the primary function of CSF is to cushion the brain within the skull and serve as a shock absorber for the central nervous system, CSF also circulates nutrients and chemicals filtered from the blood and removes waste products from the brain. Examining the fluid can be useful in diagnosing many diseases of the nervous system, including MS The CSF of people with MS usually contains elevated levels of IgG antibodies as well as a specific group of proteins called oligoclonal bands. Occasionally there are also certain proteins that are the breakdown products of myelin. These findings indicate an abnormal autoimmune response within the central nervous system, meaning that the body is producing an immune response against itself. An abnormal autoimmune response in CSF is found in a number of other diseases, so the test is not specific for MS. Conversely, some 5-10% of patients with MS never show these CSF abnormalities. Therefore, CSF analysis by itself cannot confirm or rule out a diagnosis of MS. It must be part of the total clinical picture that takes into account other diagnostic procedures such as evoked potentials and magnetic resonance imaging (MRI).

Guidelines for Diagnosing Multiple Sclerosis. Previous Standard – The Poser Criteria The Poser criteria were proposed in 1983 as an update to the Schumacher Criteria for diagnosing multiple sclerosis. They were developed to reflect the advances of detection techniques (MRI scans and spinal taps) that have helped neurologists to determine the existence of lesions and other paraclinical evidence. The Poser criteria are: • Clinically definite MS • 2 attacks and clinical evidence of 2 separate lesions • 2 attacks, clinical evidence of one and paraclinical evidence of another separate lesion • Laboratory supported Definite MS • 2 attacks, either clinical or paraclinical evidence of 1 lesion, and cerebrospinal fluid (CSF) immunologic abnormalities • 1 attack, clinical evidence of 2 separate lesions & CSF abnormalities • 1 attack, clinical evidence of 1 and paraclinical evidence of another separate lesion, and CSF abnormalities • Clinically probable MS • 2 attacks and clinical evidence of 1 lesion • 1 attack and clinical evidence of 2 separate lesions • 1 attack, clinical evidence of 1 lesion, and paraclinical evidence of another separate lesion • Laboratory supported probable MS • 2 attacks and CSF abnormalities

New Guidelines – McDonald Criteria In 2001, the International Panel on the Diagnosis of Multiple Sclerosis, chaired by W.I. McDonald, FRCP (Royal College of Physicians, London), issued a revised set of diagnostic criteria (Annals of Neurology 2001; 50:121-127). In addition to the traditional requirements, the revision provides specific guidelines for using findings on MRI, cerebrospinal fluid analysis, and visual evoked potentials to provide evidence of the second attack and thereby confirm the diagnosis more quickly. These guidelines also facilitate the diagnostic process in those patients who have had steady progression of disability without distinct attacks. These new criteria have become known as the McDonald Criteria after their lead author.

McDonald Criteria

McDonald Criteria What Is An Attack? • Neurological disturbance of kind seen in MS • Subjective report or objective observation • 24 hours duration, minimum • Excludes pseudoattacks, single paroxysmal episodes Determining Time Between Attacks • 30 days between onset of event 1 and onset of event 2

McDonald Criteria How Is "Abnormality" In Paraclinical Tests Determined? • Magnetic resonance imaging (MRI) Three out of four: • 1 Gd-enhancing or 9 T2 hyperintense lesions if no Gd-enhancing lesion • 1 or more infratentorial lesions • 1 or more juxtacortical lesions • 3 or more periventricular lesions • (1 spinal cord lesion = 1 brain lesion) • Cerebrospinal fluid (CSF) • Oligoclonal IgG bands in CSF (and not serum) • or elevated IgG index • Evoked potentials (EP) • Delayed but well-preserved wave form What Provides MRI Evidence Of Dissemination In Time? • A Gd-enhancing lesion demonstrated in a scan done at least 3 months following onset of clinical attack at a site different from attack, or • In absence of Gd-enhancing lesions at 3 month scan, follow-up scan after an additional 3 months showing Gd-lesion or new T2 lesion.

How Do LTD Insurers Define Disability: Typically, you will be required to prove that you are not capable of performing the duties of your job due to your impairments. Usually, after a period of time – 24 months is common, you will have to show there are no jobs you can do based upon your education, training and work experience.

LTD Disability • Know your policy’s definition. • A few words can make a big difference. • Usually no earnings requirement, so they may be able to show you can flip burgers and prove you are no disabled….but you should challenge this. • Some policies have Partial Disability.

Social Security Disability "Disability" is "the inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." The following terms are defined by current (2003) SSA regulations: • "Substantial Gainful Activity" is the ability to earn an average of $800 per month. • "Medically Determinable Impairment" is a physical or mental impairment that results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. • "Evidentiary Requirements" for disability determination are described by SSA regulation. An acceptable medical source must report signs, symptoms, and laboratory findings diagnostic of an impairment. Although a claimant's reported signs and symptoms are not sufficient to meet the evidentiary requirements for establishing the presence of a medically determinable impairment, all available evidence including the claimant's report of symptoms is used to evaluate the impact of any documented impairment(s) on the claimant's ability to carry out work tasks. • "Severe Impairment" is defined by the agency as any "impairment that more than minimally limits the claimant's ability to do basic work activities."

How the SSA Determines Disability To decide claims for Disability and SSI benefits, SSA must determine whether the claims file includes information from an acceptable medical source that documents the signs, symptoms, and laboratory findings that are diagnostic of a physical or mental impairment. SSA adjudicators also determine whether the impairment would be expected to more than minimally interfere with the claimant's capacity to carry out basic work activities for at least 12 consecutive months or end in death. If a “severe impairment” is identified, the adjudicator determines whether the medical findings meet or equal an impairment in the “medical listings” (basically, a government checklist). If the documented impairment does not meet or equal a listed impairment, the adjudicator must determine the claimant's residual functional capacity (abilities) and consider vocational factors prior to making a final disability determination.

Social Security Medical Listings The Social Security regulations include a Listing of Impairments for each body system that define disability. Often referred to as the "medical listings," this checklist list allows quick disability determinations to be made on the basis of medical criteria alone. The Listing of Impairments describes, for each major body system, impairments that are considered severe enough to prevent a person from doing any gainful activity (or in the case of children under age 18 applying for SSI, cause marked and severe functional limitations). Most of the listed impairments are permanent or expected to result in death, or a specific statement of duration is made. For all others, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months. The criteria in the Listing of Impairments are applicable to evaluation of claims for disability benefits or payments under both the Social Security disability insurance and SSI programs.

11.09 Multiple Sclerosis. With Disorganization of motor function as described in Listing 11.04B; OR Visual or mental impairment as described under criteria in Listings 2.02, 2.03, 2.04 or 12.02; OR Significant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process. The Social Security Medical Listing for Multiple Sclerosis # 11.09

Disorganization of motor function as described in Listing 11.04B • Listing 11.04B. Significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station.

Visual or mental impairment as described under criteria in Listings 2.02, 2.03, 2.04 or 12.02. • Listing 2.02. Impairment of visual acuity. Remaining vision in the better eye after best correction is 20/200 or less. • Listing 2.03. Contraction of peripheral visual fields in the better eye. • A. To 10 degrees or less from the point of fixation; OR • B. So the widest diameter subtends an angle no greater than 20 degrees; OR • C. To 20 percent or less visual field efficiency. • Listing 2.04. Loss of visual efficiency. The visual efficiency of better eye after best correction is 20 percent or less. (The percent of remaining visual efficiency is equal to the product of the percent of remaining visual acuity efficiency and the percent of remaining visual field efficiency.

Visual or mental impairment as described under criteria in Listings 2.02, 2.03, 2.04 or 12.02. Listing 12.02 Organic mental disorders: Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities. The required level of severity for these disorders is met when the requirements in both A and B are satisfied, OR when the requirements in C are satisfied.

Listing 12.02. Organic mental disorders (cont.) A. Demonstration of a loss of specific cognitive abilities or affective changes and the medically documented persistence of at least one of the following: 1. Disorientation to time and place; or 2. Memory impairment, either short-term (inability to learn new information), intermediate, or long-term (inability to remember information that was known sometime in the past); or 3. Perceptual or thinking disturbances (e.g., hallucinations, delusions); or 4. Change in personality; or 5. Disturbance in mood; or 6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and impairment in impulse control; or 7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid levels or overall impairment index clearly within the severely impaired range on neuropsychological testing, e.g., Luria-Nebraska, Halstead- Reitan, etc; AND B. Resulting in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration;

Multiple Sclerosis