Avoiding the Pitfalls of a Tricky MS Disability Claim

April 08,2008
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Within the disability spectrum, our clients who suffer from Multiple Sclerosis tug at my heartstrings just a little bit more than most. Perhaps because they are invariably vibrant, successful people who are totally blindsided by the disease, they are very sympathetic clients and we usually expect their claims to be decided favorably.
However, there are two reasons why winning an MS disability case is not always as easy as it might appear at first glance.
The first is that in many cases, people suffering from MS are not actually diagnosed or treated until many years after their symptoms arise. They might see many doctors before they are correctly diagnosed, or they might not see a doctor at all. Just this week I reviewed a set of records where the claimant was diagnosed with MS and spent the next year treating for Lyme Disease before accepting that MS was the cause of his problems and starting to take Copaxone.
The result of a delayed diagnosis in some cases is a loss of retroactive benefits. In the worst case scenario, a correct diagnosis is not reached until after the claimant’s disability coverage has expired, and no claim at all can be brought. Other than asking a doctor for a retrospective opinion, which the judges often do not credit, we can’t do much about this problem.
The other reason that MS claims can be tricky to win is that very often the medical records don’t contain all of the claimant’s relevant medical complaints or they state that the claimant is “doing well.” There are two reasons that happens, and both can be dealt with by an experienced attorney.
Often, patients don’t tell their doctors the full extent of their problems, and sometimes the doctors either are not paying attention or do not see the need to record the patient’s medical complaints in detail. Both of these situations can be remedied by having the client make a special appointment with their physician to go over their complaints, and to make sure that their chart is accurate and that the doctor notes the length of time the complaints have been present.
When the records say “doing well,” it usually means “no change,” or is in relation to a baseline that relates to the patient’s medical condition, not that he or she has no problems or limitations. When we see a notation like that in the records, we have the doctors complete a Functional Capacity Assessment in which they have to note the patient’s specific limitations and the findings that support them. Most neurologists who deal frequently with MS patients are quite willing to complete these forms for us.
My best advice to anyone with MS fighting a disability claim is to seek treatment immediately, and make sure to tell your doctor about all of your medical complaints. And that goes back to what I always tell ALL of my clients when they ask me “what do I have to do?” I tell them: “your job is to try to get better, and we’ll take care of your claim.”
Lew Insler, Esq.