Lourdes Salvador's Column
...Co-founder of MCS America discusses the latest Multiple Chemical Sensitivity issues.
Lourdes Salvador volunteers as a writer and social advocate for the recognition of multiple chemical sensitivity (MCS). She was a passionate advocate for the homeless and worked with her local governor to provide services to the homeless through a new approach she created to end homelessness. That passion soon turned to advocacy and activism for people with MCS and the medical professionals who serve them. She co-founded MCS Awareness in 2005 and went on to found MCS America in 2006. She serves as a partner for Environmental Education Week, a partner for the Collaborative on Health and the Environment (CHE), and a supporter for the American Cancer Society: Campaign for Smokefree Air.
Walkup Talks Disability: Representing Your Claim
by Michael Walkup, Attorney at Law
One question people always have is whether or not to retain a representative on their disability claim, and if so, when in the process is the best time to do this. They may also want to know if it is best to get an attorney or a non attorney, and if they should hire someone in their immediate area or someone from a national firm.
Anyone is allowed to serve as a representative in a Social Security disability or SSI claim. Only attorneys and those representatives who are certified by SSA can get direct payment of their fees, however. Others have to be paid directly by the client. Attorneys are automatically allowed to both represent claimants before SSA and to obtain direct payment of fees. Other people who wish to have withholding and direct payment of fees have to take a national test and be certified by SSA.
Attorneys can practice before SSA in all 50 states so long as they are a member of the bar in any one state. Other representatives can likewise practice in any state.
One advantage of hiring an attorney rather than a non attorney is accountability for malpractice. Attorneys will generally have malpractice insurance, and this can be verified by checking with the bar association that registers attorneys in the state or states in which they are licensed. Non attorneys have no such insurance.
Another advantage of an attorney is the training they receive in the practice of law, which is readily transferable to SSD claims, and their years of experience in the court systems. There are no training programs as such for non attorney representatives, although some of them are trained as vocational experts, nurses, paralegals, insurance claim representatives, etc.
If you do hire someone, be sure that you find out exactly what their experience is in Social Security disability claims, and possibly in the area of your particular impairments as well. When it comes to MCS, most attorneys, even those who specialize in disability claims, often have little experience.
My website http://www.mcslegalhelp.com/
contains a list of “Ten Questions To Ask Your Lawyer”, which can give you further guidance.
When to get a representative
Many people who consult representatives before they are at the hearing level are told to call back when their case gets to that point. In MCS cases, however, it is my feeling that the sooner in the process you talk with someone, the better. There are many pitfalls that you can get into in filling out the application and other forms, going for medical examinations, and getting reports from your doctors, not to mention seeing other doctors who may be more specialized and knowledgeable about MCS and getting more specialized testing performed. Also, the longer you are seeing a doctor before the hearing, the more weight is attached to his or her opinion, so it pays to get on the right track with the right doctors as soon as possible.
As I discussed earlier in this series, just going for medical appointments and/or the Social Security offices may be problematic for MCS sufferers, and we try to work out accommodations for each of those things for you before you agree to go.
I therefore recommend that MCS clients get in touch with me before they even make the application, or maybe while they are still working and trying to get accommodations from their employers.
National or local
Every major city will have dozens of lawyers and other representatives who advertise their availability for Social Security disability representation. There are also a few “mega-firms” that advertise nationally. Some of those are law firms and some are not.
One of them advertises that they are “America’s Most Successful Social Security Advocates”. When questioned about this they say it is based on the fact that they have won more cases than anyone else. I suppose that is true in the sense that if you handle more cases than anyone else, you will win more cases than anyone else. It also means that you will lose more cases than anyone else, so they could just as accurately be called “America’s Least Successful Social Security Advocates.”
My experience has been that even with lawyers who are well versed in Social Security disability and have many years of specialized practice, MCS cases are still a rarity. I have seen the results of many hearings where it appeared to me that the attorney did not understand MCS and was trying to dance around it using psychological impairments or confusing it with “allergies”. It is my view that you have to be up on the science in this field to make up for the lack of understanding of most mainstream doctors.
What the large national firms do is to assign your case to a clerical person to work up and get the medical reports and records. Then, when the case is ready for a hearing, they try to find a local attorney in your area to handle the hearing and ship them the file a short time before the scheduled date. Usually they do not pay the local attorney very much so they tend to get new lawyers who are trying to break into the business.
To the extent that this may or may not work for the more regular types of disability claims, I think it is ill suited in particular for MCS cases for the reasons stated above. Some of the national advertisers are not even attorneys and some of them are tied in with long term disability insurance carriers from whom the client is referred. The client is told that if they use this firm, they will not be charged a fee. However, this is deceptive as if they get an independent representative, the fee charged will be deducted from the amount of retroactive benefits that has to be re-paid to the insurance company anyway, so there is no charge to the client either way.
The disadvantage here is that the SSD representative is not independent of the insurance carrier.
This comes into play where the insurance carrier decides to cut off the claimant after two years when the definition of disability in the policy shifts or when exclusions kick in. In particular, there are usually exclusions in employer sponsored disability plans for conditions caused “in whole or in part from mental impairments”, and sometimes for conditions which are “self reported”. The policy is then limited to two years of payments.
If someone who has been getting insurance payments for less than two years is referred to a company for representation on a Social Security disability there is an incentive to try to categorize the claim as involving a mental impairment so the insurance company can bail out. Even if they do that, they may still have the temerity to ask for repayment of the retroactive benefits that overlap and the representative may counsel the client that they have to make the payment. (I tell them to blow it off and let the insurance company come after them while we appeal the denial).
Bear in mind as well that there are really no ethical constraints or obligations towards you when you are represented by non attorneys, whereas the attorneys are monitored by their state bars and can be sanctioned.
Big vs. little (The Zen of Law Practice)
While I am on the subject, I wanted to say something about “big” versus “little” in terms of law firms and others practicing in this area.
I was one of the pioneers in attorney advertising in my state, having worked at a legal clinic which actually advertised before it was legal to do so to try and prompt a court challenge on the historic restrictions to lawyer advertising. Someone else beat us to that, however. In those days, advertising was new and mostly in print, and you could do it for a reasonable amount of money.
Another barrier was broken when lawyers started to advertise on TV. This upped the stakes and increased the costs exponentially. My experience is that the quality of the services you as a client may receive may tend to be more or less inversely proportional to the amount of advertising the firm is doing. It’s simple economics. If you are spending a large amount of money on advertising, you have to have a large practice to support it, and you have to cut costs in other areas to make up for the advertising expense.
This is particularly true in Social Security representation where the fees are limited. You don’t get any “windfall” cases like in personal injury where you can potentially make a lot of money on one case to offset the more modest returns elsewhere.
One way that you cut costs is to set up your practice basically as an “assembly line” where you have clerical people do most of the work and then hire cheap recent law school graduates or others to do the actual hearings with little preparation time. I’m not saying that everyone does that who advertises a lot, but the economics of that type of practice are what they are.
The internet has changed that somewhat. We are now able to focus our marketing to certain niches and keep the overhead from becoming unbalanced with large traditional advertising costs. This allows us to maintain a lower case load and give more personal attention. In some situations, like my own, we can even practice out of our homes and reduce the overhead further, thus allowing more attorney time to each case. It’s what you net, not what you gross. Less is more.
This has been my last installment in the 12 part series on disability law as it relates to MCS claims.
Readers are referred to my website, http://www.mcslegalhelp.com/, for more information.
Michael J. Walkup
About the Author
Michael Walkup is an experienced disability practitioner with over 25 years of experience in the disability law field. In 2001 he became disabled due to MCS, CFS, and FM. He is now providing a service to advise clients with potential disability claims who have MCS, CFS, and/or FM. As these programs and law are usually Federal, he is able to practice in all 50 states, so your location does not matter.
Michael is a long time Sustaining Member of the National Organization for Social Security Claimants’ Representatives (NOSSCR), the only national body for disability representatives. He is also certified as a Federal Trial Lawyer and is admitted to the U.S. Court of Appeals for Veteran’s Claims.
For more articles on this topic, see: MCSA News.
Copyrighted 2009 Lourdes Salvador & MCS America