Chapter Thirteen
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Disability Issues
Workplace Accommodations and Applying for Disability Benefits
Facing the reality of not being able to continue working is painfully difficult and can be downright terrifying. Consequently, some people who are very ill with disabling sensitivities push themselves to continue working much longer than they should, and their bodies often pay the price in increased disability. On the other hand, many sensitized people are forced out of jobs prematurely because of their employers’ refusal to provide appropriate accommodations.
If there is any way of making your work environment safe, remaining in the workforce allows you to keep your income, benefits, work-related self-esteem, contacts with other people, and sense of productivity. Deciding whether you have the option of continuing to work may be easier if you understand something about the principles of the Americans with Disabilities Act (ADA).
The Americans with Disabilities Act
The employment provisions of the ADA apply to all employers with fifteen or more employees, including private employers; labor unions; government and nonprofit institutions, departments, and agencies; public transportation systems that receive federal financial assistance; and all public entities that provide public transportation.
Although you are not automatically covered by the ADA just by virtue of having disabling sensitivities, you may be covered on an individual basis (as with other disabling conditions). To qualify individually, you must meet one of the three prongs of the definition of “handicap,” as defined in both Section 504 of the 1973 Rehabilitation Act and the ADA. These prongs are:
1. Having a physical or mental impairment that substantially limits one or more of the major life activities
2. A record of such an impairment, or
3. Being regarded as having such an impairment (ADA 1990, Sec. 3).
Workplace Accommodations for Environmental Sensitivities
Although employers sometimes argue that the accommodations required for MCS are so inclusive they are impossible to adhere to, this is usually not true. If you are fortunate enough to have your own individual workspace (office, classroom, etc.), you have many immediate opportunities to improve the quality of your work environment. You can use an air cleaner, specify less toxic cleaners, and reduce the amount of dust, fresh paper, smoke, and fragrance in your personal workspace. You can also request that no toxic paints, pesticides, or other chemicals be used in your individual office. You can unplug or turn off equipment and lighting that emit electric or magnetic fields if they trigger any symptoms. Changing airflow and heating is more difficult. If your workspace is taking in toxicants from other parts of the building, you may have to ask to relocate your office.
Accommodations may not be as easy to control if you share a workspace or common areas with others. In this case, you will have to ask for help with some of the problematic exposures. Air fresheners, for instance, may add unwanted toxic fragrances to bathrooms, but it may not be too difficult to talk employers into using the new citrus-based fresheners once they see how effective they are. Simple baking soda and fragrance-free kitty litter, changed on a regular basis, will also absorb odors. If you want to use alternative air fresheners, you may have to buy the first container and ask your employer to order it from then on. The citrus-based products are sold at most health food stores. Some of the same companies make citrus-based cleaners. If you are sensitive to ammonia, chlorine, or solvent-based cleaners, you may be able to get your office cleaning staff to do a trial with these products or other safe cleaners (see Appendix B for product sources). With paints, you may have to ask for advance warning so you can prepare to be out of the office for a period of time after painting. Or, you can try to arrange that your office use totally safe paints. Milk paints are the least toxic, but hardest to work with, and they do not cover enamels well. It may be easier to convince employers to use some of the low or no volatile organic compound (VOC) or clay paints (see Appendix B for product sources). Regarding pesticides, you may be able to speak with the person who manages pest control and provide him or her with information on integrated pest management (IPM). This management system uses the least toxic solutions for bug problems, with toxic applications always used as the last line of defense.
The Fragrance Problem
Fragrance on co-workers is a difficult issue. Some co-workers may not be sympathetic to your need for a fragrance-free space in which to work. The least threatening strategy for gaining some cooperation may be to have individual conversations with co-workers. Some people may understand right away when you explain that you become ill from fragrances. However, you must be very clear about what it does to you. Many people interpret a complaint about fragrance to mean that you simply find it irritating. Also, bear in mind that some people wear fragrances because they are attempting to cover up a medical condition, or what they perceive as their own body odor, and they will be uncomfortable disclosing this information. For example, co-workers with bowel or bladder control problems may feel that they are unable to stop wearing fragrance and may be ashamed to tell you why or to discuss alternatives. Explaining that it causes you debilitating symptoms may help.
Fragrance has “slid” by without receiving the negative attention that it deserves, given that it is probably no safer than smoke, solvents, or pesticides. An article in the November 2004 issue of “The Ecologist” lists the ingredients in Eternity and their adverse effects. Like many other fragrances, Eternity is a mix of a large number of poisons, some of which already demonstrate negative health effects. The Environmental Health Network of California has attempted through a petition to get Eternity declared misbranded and a warning required on its label. (See www.ehnca.org.)
There are many studies that demonstrate the harmful effects of fragrance, and that show how many people in the population complain of illness caused by perfume. These studies, combined with clippings about some of the fragrance-free sites and activities now in place, may help to convince co-workers that your complaint is justified. The following are only a few of the many that may be helpful:
Studies that Find Fragrance Harmful
Ø Anderson and Anderson (1998) allowed groups of mice to breathe one of five commercial perfumes or “zero-grade medical air” for one hour. Three of the perfumes caused airflow limitations suggestive of asthmatic-like constriction. All five perfumes caused signs of being toxic to the nerves or nervous tissue (i.e., neurotoxicity) that worsened with repeated exposures. Effects of the perfume varied by dose and included changes in breathing patterns, and indications of neurotoxicity, including altered posture and gait, twitching and tremors, and exaggerated responses to stimuli. Some of the perfume-exposed mice developed limb paralysis and/or convulsions; some lapsed into coma; five mice died. None of the mice in the control group died. Furthermore, air tests found a large number of toxic chemicals in the perfumed air, including benzene-dicarboxylic acid.
Ø Luckenbach and Epel (2005) found that certain musks inhibit a system that cells normally use to resist the effects of toxics. In tissue from the California mussel, musk impaired the multidrug/multixenobiotic resistance (MDR/MXR) efflux transporters, proteins that keep toxics out of cells. For several of the musks tested, this system was still impaired 48 hours later. Luckenbach and Epel point out that the MDR/MXR efflux transport system also operates in mammals, that these fragrance chemicals accumulate in human tissues, and that they are chemosensitizers. They suggest that musks and other environmental chemicals should be screened for these effects.
Ø Lorig and Schwartz (1988) found that fragrance alters the human electroencephalogram (EEG) pattern, and that similar fragrances can have very different patterns. The effects from nose breathing were greater than those from mouth breathing. And, fragrance levels in room air were able to stimulate the nervous system, thus affecting EEG patterns, even when fragrance was not detectable through odor.
Fragrance-Free Organizations/Zones
Ø The University of Minnesota School of Social Work became fragrance-free in 1997. Both faculty and students who enter the building are asked to wear no fragrance.
Ø The National Women’s Studies Association’s annual meeting has been completely fragrance-free since 1997.
Ø The Association for Women in Psychology’s annual meeting has been fragrance-free since 1997.
Ø The executive committee of Division 35 (Psychology of Women) of the American Psychological Association has had fragrance-free meetings since 1996.
Ø In 1991 the U.S. Architectural and Transportation Barriers Compliance Board issued a scent-free policy for its meetings such that “Persons attending Board meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants.” This came about as a result of the efforts of a few strong MCS activists. (http://www.access-board.gov/ABNEW/about/policies/fragrance.htm)
Ø The city of Halifax Nova Scotia promotes scent-free environments and has raised the ire of the perfume industry in doing so.
How to Request Accommodations
To begin, you may decide to informally ask your immediate supervisor for the accommodations that you feel would help you to function safely and productively in the workplace. You can provide physicians’ letters and explain your problem to the best of your ability. If your documentation can state that you are sensitive to—or become ill from—chemicals, and that it threatens your health to be exposed to them, this will be helpful. These letters should be tactful, tasteful, and not reveal too much personal information. You need to maintain your dignity at work. (For example, giving your employer a letter stating that you have toxic encephalopathy, which means brain damage, may not be exactly what you want your documentation to say.) The letter also should be tailored to you as an individual. Some physicians, for instance, use form letters that may request accessibility accommodations to include products that may be a problem for you (e.g., vinegar).
It is best to put your request in writing. Your employer is not required to provide any accommodations if you do not request them. If you encounter resistance to getting the necessary accommodations, you will need to speak with those who have more authority until you receive help. Depending on the structure of your workplace, you may save a lot of time and energy by speaking to someone with a lot of power right at the start. At the least, you need to talk to someone who has enough influence to implement changes once convinced to do so.
You can also write a “Request for Reasonable Accommodation.” This legal document states that you have a disability covered by ADA, and that: “In accordance with Title II of the Americans with Disabilities Act and section 504 of the Education Act, I am in need of the following accommodations for my disability in order to be safe working in . . .”
You can then list your needed accommodations. Be judicious, however, and ask only for what you really need so as not to be interpreted as asking for the impossible. Toni Temple reminds people with MCS that it is important to be reasonable in requesting accommodations. Remember that employers are not required legally to make expensive renovations. An employer does not have to make an accommodation that imposes an “undue hardship” on the operation of the business. Undue hardship means “significant difficulty or expense” when taking into account (on a case-by-case basis) the structure and resources of the institution or workplace.
Although you may be unable to perform some minor functions of your job, you must be able to perform its “essential functions” to qualify for ADA accommodations. If you are a typist, for example, and sustain an injury that renders you unable to type at all, then you are unable to perform the essential function of your job and your employer does not need to modify your job for you. However, if you are unable to stand over the photocopy machine, and this is a minor part of your job, then your employer must accommodate your need.
Many accommodations can be made easily and with little expense. Limiting smoke and perfume in the workplace is not costly or difficult. Using less toxic air fresheners or paints, likewise, is not cost-prohibitive. Providing an air cleaner for employees is also a reasonable strategy that is fairly easy to implement. The booklet, Multiple Chemical Sensitivities at Work: A Training Workbook for Working People, by the Labor Institute (1993) is a helpful workbook that details possible interventions for MCS. You can purchase it to give to your employer. Although some suggestions for accommodations are listed below, the booklet may lend credibility to your request.
Once you receive cooperation, looking ahead to prevent future mishaps is critical. If you know that some process, such as painting or spraying, is being considered, finding out when it will be done and what chemicals will be used may save you from another toxic insult.
Specific Workplace Accommodations That
May Be Helpful for Sensitized Workers
1. Work near a window that opens rather than in a sealed area of a building.
2. Reduce fragrance use by co-workers if possible.
3. Eliminate the use of toxic pesticides and implement the substitution of less toxic alternatives, such as boric acid for ants and roaches.
4. Initiate flexible work hours that allow you to leave during highly toxic exposures, e.g., painting, and/or to work during off-hours to avoid photocopy and other office fumes, and rush hour traffic.
5. Receive notification of impending pesticiding, painting, and construction/repair that may generate fumes or cause other harmful effects.
6. If you are electrically sensitive, minimize the amount of time spent under fluorescent lights or in the vicinity of any transformers, electric cable, computers, or other electromagnetic field sources that trigger symptoms. Some people with MCS get substantial relief simply by unplugging electrical equipment.
7. Eliminate “air freshener” in bathrooms. Install fans, open windows, or use nontoxic alternatives.
8. Relocate your work area to a safer part of the building.
9. Place an air cleaner in your work area.
10. Vent the photocopy machine appropriately.
11. Use less toxic cleaners and eliminate ammonia, solvent, phenol, or chlorine-based solutions.
12. Delegate errands to toxic areas, photocopying, and other small nonessential tasks to an employee who does not have chemical sensitivities.
Getting Help from Your Independent Living Center or Vocational Rehabilitation Center
Vocational Rehabilitation Services (VRS) exists to help people with disabilities achieve employment that matches their abilities. The Centers for Independent Living (CILs) are organized as part of Vocational Rehab to facilitate independent living in the community for people with disabilities. You may be able to get help from one of these agencies in your struggle to acquire accommodations in community facilities or work, to retrain for work that you might be able to do with sensitivities, or to acquire assistive technology or training to allow you to organize a home business. When I researched people’s experiences with these two agencies, I found that many people with MCS were not familiar with these resources. Only half of 100 were familiar with vocational rehabilitation services and 25 had applied to VRS for help. Of these 25, 14 received help and 11 did not. Fourteen found VRS to be accessible, and 10 found the staff to be familiar with MCS. However, 6 reported that their counselor was scented. Eighteen requested accommodations from VRS for the visit and 14 of these requests were honored. Of these 18 requests, 7 were for VRS to come to the respondent, to meet outside, or do a phone consult; 5 of these were granted. Of the 25 applicants, only 5 received help in finding employment. VRS required psychological evaluations for 8 people and proposed job training for 9. When asked if they thought the response of VRS was “reasonable with respect to your disability,” 14 respondents said “yes” and 11 said “no.”
Nine people of the 12 who went to VRS described receiving tangible helpful services. Three people received home computers with appropriate alterations, 3 received home office equipment, 2 received air filters, and 2 were given personal assessment. Other services received by one person each included school tuition, temporary employment, accommodation letters, work clothing, dietary supplements, and aid in acquiring SSD. Most impressive perhaps was that one respondent received six months of treatment by an environmental physician including transportation. Negative experiences included being greeted by perfumed personnel who simply said "goodbye" and shut the door when the respondent explained that she couldn’t meet with perfumed people, or being outright refused any services. Two people were referred to testers who would not make accommodations in the testing site. One tester in particular created a report that completely ignored the sensitivities and depicted the person as being mentally unbalanced and personality disordered. (The respondent read the report to me.) VRS then spent in the respondent’s words “much more money fighting my request for computer training than they would have spent training me.” Others complained about red tape type reasons given for the failure of VRS to help. For example, one person was told that VRS could not help because she was employed by a government agency. Services provided to respondents by VRS are listed below.
Only a third of the 100 respondents claimed to be familiar with the Centers for Independent Living. When asked why they hadn’t contacted a center, even those claiming familiarity with the centers replied with statements such as this: “I would not want to live somewhere other than my own home.” Fifteen people asked an Independent Living Center for services (13 in the U.S. and 2 in Canada) and only 7 received services. Three people described a scenario where they never got beyond the initial phone call. Of the 12 who went to a facility, only 3 people found the facility accessible and 6 found the staff to be familiar with MCS. Two people encountered scented advocates. Five requested accommodations for their visit and the ILCs met these for 4 people. Seven people asked the ILC personnel to come to them, meet outside, or meet by phone and in 5 cases this occurred. Seven people reported that their ILC helped them with their request and 4 thought that the ILC response to them was “reasonable.” Of these 4 people, one received computer and office equipment for a home business, one was helped to obtain improved financial benefits, one received advocacy on her behalf with her local library, and one had a home visit from a “nice man.” Others were not happy with their experience. None of the 4 people who asked for help with housing was satisfied. One person received only a list of available apartments, one did not receive any help or suggestions and believed the staff to be uninterested in helping, one was never contacted, and one was told that no services were available for housing. In addition the fourth person was told that there were already too many disability issues and they were only “focusing on a few.” One person’s request for help in purchasing oxygen was refused and the two people who went to the Canadian facilities received no help. One asked for transportation assistance with a fragrance-free driver and was told that they could not ask drivers to leave off perfume. The second asked for help with employment and was told that they did not help people with mental illnesses.
In summary, people’s experiences with these agencies were very uneven. However, helping people with MCS falls within the purview of both. All offices of these agencies have been sent a copy of the booklet I wrote for Independent Living Resource Utilization (Understanding and Accommodating Multiple Chemical Sensitivity) due to efforts from within their own organization to educate the advocates regarding MCS. If you are aware of this, you can ask that they review the booklet in hard copy or on line, download and send them a copy, or even bring a copy to your first appointment. The Independent Living Movement brings grass roots sensitivity to the issue of disabilities in general, but has not yet understood that environmental sensitivities need to be included under this umbrella. It might be worth requesting help and attempting to establish an understanding with your appointed advocate. I am not very supportive of the idea of requiring psychological evaluations for people with sensitivities as a prelude to offering them any help. The reason given is often to see what mental disabilities you may have, and if you can benefit from their help, etc. However, I have on numerous occasions seen the process turn against the testee when an evaluator has no knowledge of MCS, requires the person to sit for hours in a toxic room, and then describes any negative performance as indicative of mental pathology that excludes the person from receiving benefits. So if you can avoid taking a psychological exam, I would suggest doing so. If you can’t, then you may have to weigh the possible benefits against any potential harm.
Following are the services received by people in my study of 100 persons:
Services Provided by Department of Vocational Rehabilitation Services
Services # of clients
Home computer with appropriate accommodations
(shielded, vented, laptop) 3
Home office equipment 3
Air purifier 2
Testing 2
Temporary job with accommodations 1
School tuition 1
Housing search and will pay when found 1
6 months of treatment by environmental
physician including transport 1
Job search 1
Resource referrals 1
Intercession with employer 1
Letters regarding accommodation requests
in person’s town 1
Offer to help with business plan and
educational fees 1
Work clothing 1
One hour per week of therapy 1
Dietary supplements 1
Help getting SSD 1
Total n applying for help = 25
Services Provided by the Independent Living Centers
Services # of clients
List of available apartments 1
Computer, printer, fax for home business 1
Help in acquiring improved benefits 1
Intercession with library for person’s access 1
Home visit 1
Total n applying for help = 15
Applying for Disability: Receiving Assistance
When You Can No Longer Work
It is possible that regardless of how hard you attempt to “hang on,” you may reach a point when you are no longer able to work. This may be temporary or permanent, but unless you are independently wealthy, you may find yourself in the position of having to apply for disability compensation. There are several types of disability compensation available, including private disability insurance (if you have a policy), the Social Security Administration’s Disability Income and Supplementary Security Income, and workers’ compensation.
Private Insurance
In addition to health insurance, many employers offer disability insurance for a modest fee. If you have the opportunity to purchase this insurance, it can be an excellent investment. Read the policy carefully to be sure that no conditions that resemble MCS or EMS are excluded. If the policy does not exclude sensitivities, you may want to purchase the highest level of coverage possible. Some policies allow you to choose a premium based on what portion of your current salary would be paid to you monthly should you become disabled.
Having disability insurance does not mean that the insurance company will not try to avoid payment. Private insurers have access to the same detractors who testify for employers against people applying for any other types of compensation for sensitivities. However, purchase of the insurance (along with excellent medical records and documentation of symptoms experienced at work) will lay the groundwork for future benefits should you ever become disabled. If your employer does not offer disability insurance, you may be able to purchase it privately.
Social Security Administration Benefits
Established in 1956 by Title II of the Social Security Act, the Social Security Administration (SSA) provides Social Security Disability Income (SSDI) for people who are disabled to the point of being unable to work. Cash benefits generally begin six months after you become disabled. In order to qualify, you must be under 65 and must have paid into the FICA tax for five of the last ten years or half of the preceding calendar quarters. The required contribution was $900 per quarter in 2004. Younger people may qualify with less time. If you were self-employed, you have to have paid into FICA directly to qualify. If you have income that is not from your current work, such as investment income, it does not affect you ability to get SSDI. Your spouse’s income, likewise does not affect your ability to qualify for SSDI. The amount of SSDI received by a worker varies based on past income. If you receive SSDI you will qualify for Medicare 24 months after your first SSDI payment.
Supplemental Security Income (SSI), which was established by Title XVI in 1972, provides monthly cash payments to aged, blind, or disabled people whose financial resources are below a required threshold. Because this is a program based on need rather than ability to work, your spouse’s income will affect your ability to qualify. Some applicants receive both SSDI and SSI. SSI pays a standard amount to all claimants. Individuals who qualified for SSI in 2004 received $564 per month; couples (where both qualified) received $846. If you receive SSI you will become eligible for Medicaid immediately.
The burden of proof that you are disabled lies with you. The two and a half million people who apply to the SSA each year for disability benefits must deal with the state agencies called Disability Determination Services (DDS). The DDS conducts disability determinations for the SSA. Disability Insurance (DI) and SSI are the two major benefit programs for people with disabilities. These two programs define disability as “the inability to engage in any substantial gainful activity by reason of a severe physical or mental impairment that is medically determinable and is expected to last at least twelve months or result in death.” As of January 1, 2005 you cannot earn over $830 per month (unless blind, in which case you could earn $1,380 per month). Douglas Smith says that earning over the limit could trigger a review and risk losing your benefits (http://www.disabilityfacts.com/resources/earnings1.html). (See appendix C for a list of SSA publications that may help in the application process.)
Qualifying for Benefits
You do not have to be completely and totally disabled to qualify for SSDI, only unable to engage in paid work. But you should apply as soon as possible after you become disabled because it takes at least sixty to ninety days to process your initial claim. The qualifying process involves filing an application and supporting documentation through a local field office that then forwards the materials to a state Disability Determination Services (DDS) office.
A DDS examiner then works with a medical or psychological consultant to study your documentation and make a determination. Additional data may be requested. (Note: At this level the applicant does not have any personal contact with any of these professionals.) If the application is denied, the applicant can ask DDS to reconsider. A new examiner/consultant team then reviews the application. If your application is denied a second time, the next step is an appeal to an Administrative Law Judge (ALJ) in the SSA Office of Hearings who will hold a hearing where the applicant can testify and present new evidence. If denied at this level, the applicant can appeal to SSA’s Appeals Council and then bring suit in federal court.
The SSA is supposed to use the following five-step sequential evaluation process to determine whether an applicant qualifies for benefits:
1. Is the applicant engaging in substantial gainful activity? (The answer must be “no.”)
2. Does the applicant have an impairment that has more than a minimal effect on the applicant’s ability to perform basic work tasks? (The impairment must be expected to last twelve months or result in death.)
3. Does the applicant’s impairment meet or equal the medical criteria for an impairment in SSA’s listing of impairments? (This list includes over 150 categories presumed to meet the severity test. You can bet that chemical and electrical sensitivities are not on it.) If the impairment is not listed or the condition does not match listed criteria, then it must be the “medical equivalent” of one of the listings. Criteria for mental impairments are more subjective and focus more on subjective evaluation of the person’s functional limitations than those for physical impairments, which must be documented by medical fact. Some conditions, however, must be assessed by functional limitation, e.g., musculoskeletal conditions. But awards for musculoskeletal conditions are infrequent. Sensitivities fall into the category of impairments that are difficult to document by medical fact, and therefore proving functional limitation is crucial.
4. Comparing the applicant’s Residual Functional Capacity (RFC) with the physical and mental demands of the applicant’s past work, can the applicant perform his or her past work? If medical evidence does not substantiate a condition of adequate severity in SSA listings, the adjudicator must determine what the applicant can still do in a work setting. The examiners must use “all relevant medical and nonmedical evidence,” such as statements from others about the applicant’s symptoms. If it is determined that the applicant can still perform past work, the claim is denied.
5. Can the applicant perform other work in the national economy? This is determined using the RFC, age, and educational and skill level of the applicant.
The application process is standard, but leaves room for complex decision making by the adjudicators. For example, if the person cannot be deemed disabled on the basis of medical evidence only, the adjudicator must then decide if the applicant can perform prior or other available work despite their condition. The SSA’s medical vocational rules suggest that older, less educated, and less skilled people are more likely to be given benefits. (See discussion of this process later in this chapter under “Is the Application Process Fair?”)
Stresses of the Disability Application Process
The application process is extremely stressful, as applicants must often face skeptical examiners with unsafe offices and struggle to maintain their self-esteem despite acquiring incorrect and stigmatizing psychiatric labels. They must also endure severe financial problems during the waiting process, and come to terms with a new self-definition that does not include work. How could it not be stressful under such conditions? According to people in my research, the most difficult parts of their application process were the appointments with Social Security Administration (SSA)–appointed medical examiners.
People often are humiliated and frustrated by psychiatric labels that render their physically caused complaints invisible and invalid. Interestingly, psychiatric labels can be assigned at any point in the application process, even if the applicant’s personal physicians provided only physically based diagnoses. For example, only seventeen people in my study filed for disability with a psychiatric diagnosis included in their petition (either in combination with MCS or as a stand-alone classification). Twenty-seven, however, were granted disability benefits for psychiatric reasons. When an SSA-chosen expert assigns a psychiatric diagnosis, this diagnosis can be used for disability eligibility even if none of the applicant’s personal health providers believe the applicant has a psychiatric diagnosis. For example, one woman filed for disability for chronic fatigue syndrome (CFS) and was granted disability for paranoid schizophrenia.
Some people choose to allow the use of psychiatric diagnoses in filing because of their financial desperation. One woman decided to “accept a psych diagnosis rather than starve” and gained benefits on her first attempt. Likewise, another woman who had endured a long wait for benefits chose to cope with adjusting to a psychiatric diagnosis rather than fight to prove physiological impairment. She said, “It took one and a half years to accomplish my being granted disability benefits, during which time I became homeless due to no employment, no income, and depleting my savings.”
One woman who successfully acquired Social Security Disability Income and work insurance (but not workers’ compensation) after filing three times for Social Security benefits, four times for workers’ compensation, and three times for work disability, described the process as:
“Worst fight of my life. Pure hell. I gave in to PTSS [posttraumatic stress syndrome] as it was the only way to get disability. . . . We have spent over $200,000 getting medical care and diagnosis for disability. Became homeless . . . My husband was under such pressure fighting for my rights that he had a heart attack and double bypass.”
—Twenty-four-year-old woman with MCS
Not every applicant knew what diagnosis was used to determine disability. Some knew only that the Social Security Administration had “determined them to be disabled.”
MCS was not the only reason for discrimination in the application process. One woman said she was finally granted Supplemental Security Disability Income after five applications in a ten-year period because she was ”too old to fill scarce job slots.” Physicians did no laboratory tests, documentation was scarce, and on each new application, she was sent to a psychiatrist. Legal Aid had refused to help.
Because of lack of income, many disability applicants live with their parents or extended family during the application process and risk further health decline because of the chemicals in the home environment. Some applicants have no permanent place to live, and survive on porches or in recreational vehicles or cars.
Documenting Invisible Disabilities
The challenges of proving an invisible disability are considerable, especially because “not looking sick” may prevent the applicant with environmental sensitivities from receiving consideration or from being seen as needing help. It is a frustrating fact that people can be more sympathetic when a handicap is more obvious. Nonetheless, in a court situation, you have the difficult task of convincing a judge about the reality of your invisible health condition.
Respondents used some of the following strategies to help them legally prove the reality of MCS. Some people recorded their symptoms through detailed written descriptions of their reactions. One woman sent a videotape to the judge who was deciding her case that was recorded while she was experiencing a chemical reaction. Another individual who had been denied benefits after three appeals had friends and neighbors testify as to her decline in health since becoming chemically sensitive. This same woman also provided the judge with photographs of her safe bedroom and car with air filters. One respondent even reported having had a life-threatening reaction while she was in court, which convinced the administrative law judge (ALJ) that she really was ill.
However you choose to document your symptoms, it need to be concrete and detailed enough to help a judge understand that chemical exposures lead to disabling symptoms. One woman with MCS explained:
“[It is] best to explain, in detail, how you are disabled, i.e., ‘when I am around perfume I get dizzy and lose my memory and sometimes lose coordination,’ etc. They usually deny first claim[s] and insist you can find a place to work [that] is ‘safe.’ You must reply why it is not safe for you, how you have no control over what others wear and use, etc. List each item and what it does to you in detail. . . ”
You might want to make a list of the chemicals you are exposed to in a normal working day, including the identification, severity, and duration of each symptom caused by the chemical reaction. You can make the case that you cannot control exposures in the workplace—they are inevitable. Cumulatively, the symptoms you are exposed to at work keep you debilitated to the point that it is impossible for you to function.
The level of persistence needed is sometimes astounding:
“Getting disability and work[ers’] compensation benefits while suffering from MCS-related pain has only been obtainable through tenacious persistence. They (workers’ comp and the private carrier) will stop benefits and will only be persuaded by well-organized appeals.”
—Forty-one-year-old woman with MCS
In a sense, it is a full-time job just to apply for benefits, and the effort must be seen in context of your long-term health and survival. The process will require collecting extensive medical documentation, educating Social Security Disability Income (SSDI) officials and examiners, and making numerous phone calls. Some people even contacted their state senators for assistance. It is very difficult to do this type of work while you are feeling poorly, but even if there is no one to help in the process, you must find a way to get it done.
Physician Assistance
Obtaining documentation from physicians regarding your sensitivities may be the most important component of the disability application process. It is essential that the documentation be from doctors who are knowledgeable about and supportive of chemical sensitivity. Being certain that your physicians will testify or provide written statements for a hearing is also important. Of course, this in itself is a hardship for people with MCS, as their medical needs are often reported to be unmet (Engel, Gibson, Adler, et al. 1996). In addition to the difficulties of finding physicians who are educated about disabling sensitivities, you have the added obstacle of coping with their office environment. Nonetheless, reports from physicians are extremely important. Be sure to review any physician reports before they are submitted. Even with excellent documentation, it will be challenging to win environmentally related disability cases.
Be aware: Documentation varies widely. Well-documented physician reports must include some general education about environmental sensitivities as well as a statement that the applicant is disabled to the point of being unable to engage in substantial gainful activity. On the other hand, there are some reports that even a sympathetic judge would not take seriously. For example, in one instance, a physician scratched two sentences on a prescription pad something along the order of: “Please grant disability to . She can hardly walk from place to place let alone work.” Needless to say, this woman was not granted benefits.
A physician’s letter needs to be serious. It should be written or typed on professional letterhead and detail the reasons why you should be considered for disability benefits. I suggest that you explore this issue when you first begin seeing a physician, even if you are not currently disabled. Ask the physician what she or he would do to help you if you ever became disabled, and what type of documentation/report would be submitted. Knowing ahead of time that your physician would desert you should you need this assistance can save a lot of heartache. There are physicians (even MCS experts) who want no part of the disability application process. One physician told her patient that she would no longer be able to treat him if he went on disability.
At the very least, your physician needs to be aware of the process used by the Social Security Administration (SSA) in determining disability, particularly regarding the emphasis on functional capacity. If your medical documentation can explain in detail what you can and cannot do, and how your ability to work is compromised by chemical exposures in the workplace (and that these chemical exposures are in every workplace), this will help the Disability Determination Services worker to see that your Residual Functional Capacity is low. Douglas Smith has discussed some of the problems and complications involved in physician evaluation of functioning in the disability application process:
“Treating doctors typically fill out an SSA form that has 10 questions. Government doctors then evaluate these SSA treating doctors' forms, using other SSA forms that have more than 100 questions and multiple choices on physical function and another 100 on mental function. Therefore, it is not surprising that SSA often finds treating doctor reports inadequate; the agency looks for answers to questions it did not ask. The system seems designed to promote inadequate reports.” (See http://www.disabilityfacts.com/faqs.html#13)
Available on Smith’s website is the booklet “Disability Evaluation in a Nutshell: A Three Minute Guide to Effective Medical Reports,” written to help your doctor prepare an effective report for your claim.
Is the Application Process Fair?
A recent report by the General Accounting Office (GAO) (1997) suggests that the process of determining disability qualification has not been fair. For example, the report found that 65 percent of those who apply for Social Security Disability each year are denied. One-third of these appeal to an administrative law judge (ALJ), and two-thirds of these eventually get benefits. Overall, approximately 49 percent of those who apply receive benefits; 71 percent of awards are made at the initial determinations or reconsiderations and 29 percent are made on appeal. The differences between the likelihood of being awarded benefits at the initial determinations (by DDS) and at the ALJ level has brought the Social Security Administration (SSA) under scrutiny both from within and outside of the organization. The Government Accounting Office report explored the fact that ALJs are more likely to grant benefits. Although ALJs work for the SSA, safeguards protect their independence. For example, SSA management does not control their pay or subject them to performance appraisals. This independence allows ALJs to reverse decisions made by DDS without retribution. According to the Government Accounting Office (1997) report, the following four reasons account for the discrepancy in benefit awards granted by the DDS and ALJs:
1. Residual Functional Capacity (RFC) is often assessed differently, with ALJs finding many more people to have severe limitations in the workplace. The classification that the person’s RFC is “less than the range of sedentary work” often leads to receiving benefits. ALJs rated 66 percent of cases as such while DDS saw less than 6 percent of applicants as fitting this category.
2. Although the DDS has medical or psychological consultants determine RFC, an ALJ may or may not respect these findings, and has the authority to determine RFC independently. ALJs may request that an Independent Medical Examiner (IME) see an applicant, but they rarely do. IMEs were involved in only 8 percent of cases in which benefits were awarded at the ALJ level. (This has probably worked in favor of those with MCS.)
3. The reasons for denial at the DDS level are often not clearly explained in the paperwork given to the ALJ. This encourages the ALJ to start from scratch in making a determination. This probably works in favor of those with MCS also, but is targeted for change as part of SSA’s attempt to make the process more congruent at the two levels. SSA plans to require that reasons for denial be clearly indicated so that they can be better used as “a solid foundation for subsequent appeals.” (This will likely make it more difficult for people with disabling sensitivities to obtain benefits at the ALJ level.)
4. New evidence can be presented at the ALJ level and in approximately 75 percent of the appealed cases it is. The ALJ level is the first opportunity applicants have to testify in person as to their impairment, and this personal testimony allows the ALJ to judge the person’s credibility. (This could work in favor of some applicants.) Applicants also may engage the services of an attorney at this stage, and attorneys are financially motivated to obtain awards. In addition, 10 percent of people applying for benefits switch to a mental/psychological diagnosis for the hearing.
According to the General Accounting Office report the disability determination process has been under scrutiny since 1994 with SSA aiming to “make the right decision the first time,” thus saving time and money.
Some of the planned changes include more clearly indicating any reasons for denials, sending a number of applications back to DDS rather than ALJs for appeal, and encouraging ALJs to engage the services of independent medical examiners. In fact, a 1996 ruling reinstates a policy that an ALJ must use “expert medical opinion” in demonstrating that cases that do not match disorders on their lists are actually equivalent in severity. None of these changes will help those with sensitivities. However, the SSA plans to conduct a “predecision interview” with a disability examiner before rejecting an application, which will give the applicant the opportunity to speak to someone in person.
Medical Evidence and Opinion
Adjudicators must determine disability from medical opinion and evidence. Medical opinion may be gathered from physicians or psychologists who have ongoing relationships with the applicant, clinics or others who have treated the applicant shorter term, and consultants. Medical evidence can include medical history, clinical examination findings, laboratory test findings, diagnostic statements of disease based on signs and symptoms, and treatment suggestions and prognoses (expectations as to probability of improvement). Statements from physicians as to what the person can do in the workplace are also needed as medical evidence. These statements should detail the person’s limitations for performing workplace tasks, interacting with co-workers, understanding and carrying out instructions, and stamina for workplace stress.
One important issue to consider is the weight that is accorded to medical opinions, especially given that MCS and those who treat it get very little institutional respect. The SSA is supposed to consider the following factors when deciding what weight to give a medical opinion:
1. More weight is to be given to a physician who examined the patient than to one who didn’t. (Therefore, avoiding hostile examiners is very important, because the fact that they saw you will give their testimony more weight.)
2. A physician who has a treating relationship should be given “controlling” weight, if the opinion is well supported by the documentation (i.e., consistent with the medical evidence).
2. Weight given should be commensurate with the length of relationship, number of medical visits, and extent of examinations and testing performed or ordered by the physician. (See your physician regularly and leave an appropriate paper trail, if possible.)
3. An opinion is given more weight if it is supported by evidence (e.g., lab tests) and is clearly explained.
4. Consistency with the case record should give an opinion more weight.
5. Specialists must be given more weight in their area of specialization.
Adjudicators must evaluate whether your condition could produce the symptoms you describe. For this task, you can submit statements from family, employers, and others in addition to medical evidence. Adjudicators are not supposed to reject a claim simply because the medical evidence does not clearly support your statements. To evaluate your pain and other symptoms, they should consider what factors aggravate pain and symptoms, what medications are used and their side effects, treatments used, and other factors. For MCS, you can see that, theoretically, it should be possible to gather statements from others, explain that symptoms are aggravated by unavoidable exposures in the workplace, document that medications are difficult to use due to sensitivities, and educate the examiner that treatment involves no exposures. This seems logical, but requires reasonable documentation from physicians, which generally has not been available to those with MCS.
Scott Davis is a disability attorney who specializes in pain and fatigue. On his website he has listed eleven articles to help people with their disability claims (http://www.scottdavispc.com/articles.html). One of his recommendations is that you get your personal file from any place of employment that might have documented difficulties with attendance or other ways in which your health negatively impacted your ability to work (See his article for advice on how and when to use such a file.) Davis also recommends using brief, notarized affidavits from friends and family members as corroborating evidence in cases of invisible disabilities.
Reviews
It is important to understand that the reality of remaining on disability benefits long-term is an ongoing process and is not ever a “done deal.” In fact, remaining on disability compensation may require periodic reviews when you will be required to demonstrate that you still are unable to work. Reviews often mean entering toxic offices, facing skeptical examiners, having expensive testing, and a renewed bout of stress, much as in the original application process.
You can be reviewed any time for earning over $810 per month ($1,350 if you are blind), in six to eighteen months if your condition is expected to improve, in three years if it is possible (but not necessarily predicted) that you will improve, or every five to seven years if you are not expected to improve. However, whether or not these seemingly logical guidelines are followed is open to skepticism. In the video When Billy Broke His Head and Other Tales of Wonder a women who is blind explains that she periodically has to bill out papers that she cannot read to prove that she still is blind despite the fact that her sight will never improve (Golfus & Simpson, 1994).
According to Douglas M. Smith (2004), you can be required to complete a full medical review or a mailer review. A full medical review requires you to complete Form SSA-454-BK about your medical treatment and any money you have earned in the past year. Notice can be as short as one week and Smith suggests asking for more time if you need it. The mailer review is a Disability Update Report through the mail and according to Smith is sent to those whom SSA does not expect to have improved enough to lose benefits. If SSA tries to terminate your benefits you may need to appeal this decision. Smith has a publication to help you prepare for your review. (See Appendix C).
Impending Changes to the Disability
Decision Process
SSA has allowed examiners to more easily approve “meritorious claims” (such as ALS, aggressive cancers, and end-stage renal disease) on the first application because they eventually are approved anyway. They also, however, are attempting to somehow reduce the number of claims approved at the ALJ level because the administration sees ALJs as being too lenient. This would be done with oversight of ALJs (by a panel of two Administrative Law Judges and one Administrative Appeals Judge) and “end-of-line” reviews that could overturn an ALJ decision, leaving the claimant only the federal courts for appeal. This tendency would be problematic to those with sensitivities because this is the level where you are able to appear in person and use creative ways of proving your case (such as videos of yourself both before and after you became ill). The claimant would not have access to the oversight body, which would see only the documentation.
The SSA has also designated ten states as “prototype states” for the testing of a revised process since 1999. In Alabama, Alaska, California (Los Angeles North and West), Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York (Brooklyn and Albany areas), and Pennsylvania the second step of asking for reconsideration from Disability Determination Services (DDS) has been eliminated and appeals go directly to the Administrative Law Judge (ALJ). Claimants have generally been notified if DDS intended to deny a claim, giving them the opportunity to supply any missing information or correct any errors involved in their case. But in June 2002, SSA stopped giving this warning. According to the National Organization of Social Security Representatives, it is therefore wise for claimants to contact DDS periodically to be sure that all of their documentation has arrived, particularly in these states that now have only two potential steps in the process (http://www.disabilityfacts.com/resources/NewDisabProcess.html). If this truncated process appears to work in these states it could be instituted in the other states in October 2005 or thereafter.
You can read the proposal in the Commissioner's Statement before the House Committee on Ways and Means Social Security Subcommittee, view a chart of the proposed changes, and submit comments and questions at http://www.ssa.gov/disability-new-approach/index.htm.
Workers’ Compensation
Workers’ compensation is a system of insurance to which employers contribute money to cover wages and financial damages for those injured on the job. In exchange, workers’ compensation laws protect some employers from lawsuits by employees. Employees who are eligible for workers’ compensation are not able to sue their employers for a greater benefit. However, they are able to sue other parties, such as architects, manufacturers, and building owners. In addition, there are some exceptions to employers’ protection. If employers are also the building owners, they are not protected from lawsuits. If they intentionally expose workers to unsafe conditions (they do not have to have intended harm), or if the illness would not normally be expected as a result of that employment (e.g., toxic exposure is not expected in offices), then the employer is not protected from lawsuits. Your workplace has the forms you need to file for workers’ compensation if you believe you were injured on the job.
There are three types of disability that can be granted. Temporary disability is the most common disability compensation paid under worker’s compensation, and is awarded if you are seen as only temporarily unable to work. Permanent partial disability is awarded to people who are able to perform some work, but are not expected to be able to earn the amount of money that they previously could. If you are unable to work at all and not expected to recover, you can be granted permanent total disability (Repa 2002).
There are constant political pressures and rule changes regarding workers’ compensation. For example, in California, a new law passed August 1st 2004 gives more control to industry by allowing industry and insurance companies to have specific provider networks for medical treatment needed as a result of injury on the job. Workers need to appeal to an Independent Medical Reviewer for the right to see their own doctors. HR California, the website for the California Chamber of Commerce says, “We fought hard for workers’ comp reform to help California businesses like yours” (Update: Workers’ comp reform” 2004). On the other hand, proposed changes in Illinois appear to favor the worker (“Illinois lawmakers” 2004).
Forty-two states have laws against retaliation against persons who apply for worker’s compensation. Prohibited actions include threat of or actual termination, discrimination, harassment, suspension, intimidation, and interference with exercise of rights (Repa 2002).
A search of MCS and State Case Law in the legal database Lexis Nexis found that of 45 people who sued for workers comp benefits for MCS, 33 received no benefit and four were sent back to a lower court due to some error. The major reason (19 cases) for people not getting benefits was because the court found that their condition was not directly caused by a work incident or work environment. Two cases were said to be inconclusive because of the presence of psychiatric conditions. Another two persons were unable to get benefits because the statue of limitations had expired. In one of these two cases, the court actually found that there was substantial evidence that the person had an illness/rash that was caused by the chemicals, but the time to report this had passed. In another two cases the court did not find significant evidence of disease, or there was no accident or unusual working environment (no evidence of illegal/high levels of chemicals in place). In other cases people were denied benefits because they had a history of other illnesses before employment, were found to be reasonably employable or not totally disabled, the disease was not viewed as permanent, or they failed to establish medical evidence to support the case. In one instance a woman with MCS refused allergy testing by physicians other than her own (the State Teacher’s Retirement Board wanted to have her tested by their physicians). The Ohio court decided in this case that the STRB had full authority to decide whether a disability was worthy of receiving benefits. Since she was unwilling to be tested by doctors who did not fully believe in MCS, she was not awarded benefits. Three of the people denied benefits had them prior to the case and the court decided that they were no longer entitled to them.
Only 8 of the 45 plaintiffs actually received something for their efforts. Of these, one woman was found to suffer brain damage as a result of exposure to pesticides in her employment and awarded $1,750. Another woman was found to have suffered an accidental injury in her work environment and determined to be permanently disabled. She received 50% permanent partial disability as well as $30,000 in attorney fees. In New York, a self-insuring defendant was ordered to pay a worker’s hospital bills totaling over $64,000 when she was determined to be permanently disabled. Another retained her award despite an appeal by the defendants.
Beyond Disability: Damage Suits
You may decide that your workplace was instrumental in robbing you of your ability to support yourself, and therefore you may decide to file a lawsuit for further compensation. You will need to find out the statute of limitations regarding toxic exposures in your state. If the claim is a workers’ compensation claim, it must be filed within twelve months of the incident, or within twelve months of the time that you found out the incident was responsible for your negative health consequences. You must notify your employer’s insurer within thirty days of the incident. Without this notice, there is no case. Therefore, Baiz (1997) suggests that you use a written notice with return receipt requested.
If the incident is not a onetime exposure, but rather an extended repeated series of exposures, then occupational disease laws may be more appropriate than workers’ compensation, which is for work-related accidents. Baiz says that under the Occupational Disease Act, you must file a claim to your employer, its insurer, or the Department of Labor within two years from the date you knew or should have known that your disability resulted from an occupational disease. In the event that death results, your beneficiaries have one year to file a claim.
With legal advice and help, toxic tort lawsuits can be filed on a variety of bases. Although success depends on a wide number of factors (locale, attorney, judge, jury, your documentation), Plunkett (1993) shows that there are a number of ways that legal theory supports gaining compensation for workplace-engendered MCS. She reports that most states have had plaintiffs win cases for sick building syndrome or MCS on the basis of negligence, strict liability, breach of contract, express or implied warranties, and fraud and misrepresentation. Each is mentioned here, not as legal advice, but to allow you to assess whether you would like to consider the matter with an informed attorney.
Negligence
Negligence is failing to exercise the level of care that a reasonable person would exercise to protect others against unreasonable risk of harm. Personal injury cases from indoor air pollution are often based on negligence. Proving negligence requires that the defendant owed a “duty of care” to the plaintiff, that the duty had been breached, and that the breach resulted in harm.
Strict Liability
Strict liability refers to liability for damage from a dangerous activity, and does not require negligence as a factor. In strict liability, reasonable care could not have eliminated the risks. For example, products that are dangerous by manufacture or design are often the targets of indoor air pollution lawsuits. Plunkett (1993) says that to succeed, a plaintiff “must demonstrate that he or she was injured by a defective product which was unreasonably dangerous because of its manufacture, design, or lack of warning” (p. 9). Strict liability applies to manufacturers, engineers, architects, contractors, and others, and can be targeted at heating systems, glues, photocopy chemicals, and any other toxic materials to which people are exposed in the workplace.
Breach of Contract
Breach of contract and express or implied warranties can be between builders or sellers of homes/buildings and buyers. Express warranty is a representation to a buyer whether in written, verbal, or other form. Injuries from indoor air pollution may be the result of a breach of warranty because sold items are implied by law to have the warranties of merchantability and of habitability. That is, they are fit to be sold, and fit to be used for the purpose for which they are sold (e.g., homes are meant to be lived in). If carpets emit noxious fumes or mobile homes have unsafe levels of formaldehyde, then the warranties of merchantability and habitability have been breached. Plunkett (1993) cites a case where a family was granted $16,203,000 from urea formaldehyde particleboard manufacturers because of the breach of the implied warranty of merchantability. The family was able to prove that:
1. The formaldehyde levels in the home were beyond recommended limits.
2. The particle board was the source of the formaldehyde.
3. Serious health effects had resulted.
The warranty of habitability requires that severe damages occur—a home may not merely be an irritant. Although it is more difficult to successfully sue over habitability for commercial buildings, many argue that commercial buildings also fall under the warranty of habitability.
Fraud and Misrepresentation
Misrepresentation involves false statements—either fraudulent or innocent—by builders, sellers, or brokers. It is more difficult to prove fraudulent misrepresentation, as you must prove that the defendant knowingly made a false statement with the intent of getting you to rely on it, and that damage ensued to you as a result.
Other Legal Theories
Plunkett (1993) mentions other legal theories that may be used to recover damages for MCS, but which are pretty much untested in indoor air pollution cases. One is nuisance, which involves interference with or invasion of property. Nuisance cannot be used simply for personal injury, but it may be combined with negligence or strict liability. Under risk of future illness, a plaintiff may be able to recover damages for the increased risk of future illness as a result of a toxic exposure, but there must be some demonstrable damage present. For example, a person hospitalized for smoke inhalation following a chemical fire may then argue that they are at greater risk for lung disease. Even fear of future illness as a result of toxic exposure may be used in toxic tort litigation, and Plunkett cites several successful cases. Plunkett also says that battery might also be used in cases of toxic tort, although there are no known cases. Battery requires that the defendant intentionally caused harmful or offensive contact and that the contact occurred. Contact with a toxin can in and of itself constitute the injury. Contact with asbestos dust, radiation, and other toxins has been the subject of a large number of lawsuits. Plunkett says that battery may be easier to prove than negligence because battery places less emphasis on causation.
State Case Law for Lawsuits
Our Lexis Nexis search yielded eleven cases that claimed negligence, failure to warn, or product liability. In two cases, persons received outright awards. Six persons did not receive compensation - three for failure to submit their claim in a timely manner, two because of inability to prove causation, and two cases because their experts were deemed either unreliable or unacceptable (one of these was also included in failure to prove causation).
Documentation
To solidly document personal injury claims, Baiz (1997) advises the plaintiff to keep good records, including finding out as much as possible about the exposure, and keep a journal of symptoms, medical appointments, consultations, and therapy. He advises noting mental/emotional symptoms as well as symptoms more often thought of as physical. If there are witnesses to the exposure and the effects it had on you, provide names and addresses.
Although damage suits can consume tremendous resources on your part and be terribly stressful to initiate, they have the potential to put polluters on notice, and to prove that checks and balances sometimes actually work. Damage suits set precedents, making it easier for others who are injured by toxins to receive compensation, gain publicity for the issue of a safe workplace, and, if successful, provide you with compensation for some of what you have lost.
Choosing and Working with an Attorney
An attorney chosen to help you in a toxic tort must be versed in legal precedents relating to chemical injury. Many such cases, with rulings both for and against plaintiffs, can be found in Linda Price King’s book Chemical Injury and the Courts: A Litigation Guide for Clients and their Attorneys. As MCS is controversial and misunderstood, suits regarding it have appeared under many different legal processes. A few of the precedent-setting cases discussed by King include the following:
In re Robinson, an early MCS case, a court ruled in favor of the plaintiff’s claim that she had been exposed to chemicals at a furniture class that caused her injury, citing:
“To recover a claimant must prove that the conditions at work were the major contributing cause of the disability. Although specific chemical cause of claimant’s sensitivity is not conclusively established, she has shown by a preponderance of the evidence that the major contributing cause was her work environment . . which exposed her to concentrations of chemicals much greater than she was ordinarily exposed to outside the course of employment.” (King, 1999, p. 133)
In McCreary v. Industrial Commission of Arizona however, a court ruled in favor of the defendant in a workers’ compensation claim, citing that the plaintiff’s work conditions were suitable, exposing him to chemicals in no higher concentrations than he would experience in his nonwork environment.
In Kouril v. Bowen, a woman was found to be disabled, and thus entitled to Social Security awards because her intense allergic reaction to many common chemicals restricted her major daily activities and prevented her from seeking employment.
MCS was accepted as a handicap according to the Fair Housing Amendments Act in 1992. This admission allowed for successful cases such a Lebens v. County Creek Association, where a settlement was reached between a renter suffering from MCS and her community association. Leben’s complaint was that her association had refused to adopt and IPM method of grounds keeping, as an accommodation to her illness. Found guilty of discrimination, the association agreed to discontinue pesticide usage, and also agreed to notify Lebens in a timely manner before the occurrence of any construction that could possibly expose her to harmful chemicals.
King offers guidelines for lawyers working with people with sensitivities as well, pointing out that they must be dedicated to protecting their clients in practical ways, above and beyond their legal representation: They should be prepared to do everything in their power to prevent the legal process from aggravating the very conditions they are trying to prove. Paper, both photocopied and written in pen, should be allowed to fully dry, and optimally air out for several days before being sent to the client. When possible, pencil should be used in lieu of pen, and personnel should not wear perfumes or recently dry-cleaned clothes until the conclusion of the deposition.
Applying for Disability Benefits
The decision of whether to apply for disability compensation is an extremely difficult one. On the one hand you have the difficulty of the process, and if adequate accommodations in your workplace can be made, it may be more beneficial to continue working. However, if your workplace is forcing you deeper and deeper into illness, then it may be necessary to receive benefits so that you can give your body the rest it needs. This area is so new, and interpretation of policy is in such flux, that little is certain about what will really work in the application process. Talk to other people who have applied for disability and determine what helped and what challenges they faced in the process. You can also gather any resources they may have that might help you. See Appendix A for some more information about the application experience of my research respondents. It may be less stressful if someone helps you through the process, and that person need not be an attorney. Many applicants have acquired benefits without legal representation. This legal arena may heat up in the next few years given that corporate interests are already attempting to exclude MCS from being covered by the Americans with Disabilities Act (ADA). The issue of compensation for damage by chemicals in a chemical-dependent economy cuts right to the heart of economic justice, power, productivity, and other cultural issues.
For some, acquiring disability compensation is not the end of work, but is actually a step toward increased rather than decreased productivity. Some people unable to work in traditional contexts have gone on to found organizations, edit newsletters, write books, support others, and foster important political and social change. There are many niches that still need to be filled in the community of people disabled by environmental sensitivities. Perhaps if you are forced to terminate traditional work, it is your calling to fill one of these niches.