Overcoming Fibromyalgia Disability Issues
Going through the disability process is enough to give someone Fibromyalgia if they don't
already have it! It can be a long, stressful and tedious process but, I have said this
many times, it is worth it to not give up and to push on.
Not only is the entire disability process hard, making the decision to apply for
disability can be even harder. Then when very sick patients finally do make the decision
to apply, they are often turned down and made to feel like they are not even sick. With an
illness like Fibromylagia and no lab tests to prove how sick you really are, it may seem
like a losing battle. But it doesn't have to be.
Dr. Richard Podell, FM & CFS/ME specialist, has served as a Fibromyalgia disability
medical expert witness on behalf of both insurance companies and patients, and lectures
legal professionals on the process of disability litigation. While the following advice
applies specifically to claims in New Jersey, much of it will be useful in general.
Medical Expert Witness Issue #1
Your insurance company isn't allowed to assume that you are telling the truth just
because you say so.
Insurance companies have learned by hard experience with other forms of illness that a few
individuals exaggerate their symptoms. Therefore, a disability insurance company has not
only the right, but an obligation to satisfy themselves that the claims they pay are, in
Expert Medical Witness Issue #2
Fibromyalgia pain is, by definition, subjective. No one can just look and tell for sure
how you feel. In contrast, most illnesses that disability companies are used to display
objective abnormalities that anyone can see.
People with bad backs have trouble bending; people with bad knees may limp. People with
heart or lung disease can't walk very far. EKG or chest X-ray may show damage. However,
Fibromyalgia disability is different. You may look fairly normal. So, how can the
insurance agent know for sure that youre truthful?
Medical Expert Witness Issue #3
With Fibromyalgia, when you physically push through your limits the expected flare-up
of symptoms might not occur right away.
Often the flare-up is delayed for hours or even a day. This pattern of Fibromyalgia
disability is very different from that of most other illnesses. Insurance industry
representatives – and indeed many physicians – don't yet understand this very basic fact.
Consider the Functional Capacity Evaluation (FCE), the insurance industry's standard test.
A physical or occupational therapist observes a claimant's ability to bend, crawl, push,
and pull things during a single session of two hours or so.
That's fine if the key problems are muscle weakness or stiff joints, where the symptom
flare-up occurs quickly.
But it misses the point for Fibromyalgia, since the expected flare-up often does not
occur. Current FCE protocols make no provision for follow-up; so these delayed reactions
Expert Medical Witness Issue #4
Physically pushing through your limits for just one day might cause only a minor
flare-up. But repeating the same effort – for two, three, four or five days in a row will
usually cause a flare-up that's much more severe.
Current FCE protocols test for just one or two days. But real world work occurs five days
every week. FCE testing therefore is not a realistic test of the Fibromyalgia patient's
ability to actually keep at work.
Practical "Tests" To Substantiate Your Fibromyalgia Disability
We don't yet have an objective lab test to measure how sick you are. However, you can
objectively document how your fibromyalgia disability has affected how you live.
Keep a diary of how you feel each day, how you spend your time, when you
were too tired to undertake a normal task, and how your symptoms were affected when you
tried to do too much.
It's easy to dismiss as self-serving an essay you write the day you apply for disability,
but a six to twelve month long diary should be taken seriously. That's how you can serve
as your own expert medical witness.
Obtain written statements from friends, clergy, employers, neighbors, even
family - who know how your illness has affected or limited your life. This objective
testimony is impossible to ignore.
Be sure your physician actually writes down in his or her office notes the
specific ways that your illness limits your life style and activities. Your doctor's
office notes may be your most important medical expert witness.
Ask your physician to document ALL your fibromyalgia related complaints,
not just your muscle pain. For example: poor stamina and fatigue, prolonged exacerbation
of pain and/or fatigue after modest activity, muscle pain, poor sleep and cognitive
difficulties may be as important as fatigue for affecting your ability to work.
NOTE: Many people with Fibromyalgia disability also satisfy the diagnostic criteria
for Chronic Fatigue Syndrome. In other settings such as social security, the standards for
proving disability due to chronic fatigue syndrome are clearer than they are for
fibromyalgia. However, in other settings it's the opposite. As a practical matter, if you
qualify for both diagnoses, it may be best to present them both.
Consult at least one physician who has special expertise, sympathy and
experience with fibromyalgia.
NOTE: My patients from New Jersey, New York, Pennsylvania, and some states across
the country appreciate that now many rheumatologists, physical medicine specialists,
internists and family physicians do understand that fibromyalgia is a real, difficult and
physical illness. However, they also report that other physicians remain skeptical.
Check with your local fibromyalgia support groups for a read on which local doctors are
both knowledgeable and sympathetic.
You, your physician and your attorney should discuss the pro's and con's
of accepting your disability insurance company's invitation to undergo functional capacity
evaluation (FCE) testing.
As currently performed on a single day, without attention to the typical delayed symptom
flare-up, the FCE is a misleading test of your ability to function in the workplace on an
on-going basis. And, if you are very ill, the physical effort involved in the FCE testing,
might make you worse for many weeks or for months.
Consider obtaining a formal evaluation by a psychologist or a
psychiatrist. If depression or anxiety have developed, it's best that you recognize and
Once that's been done, your psychologist or psychiatrist can attest that the physical
aspects of your illness are the main reasons why you are not able to work. Without this
support a skeptic might dismiss your claimed impairment as mainly psychological.
If a major part of your disability claim relates to mental concentration
difficulties, consider formal neuropsychological testing.
This entails several hours of standardized pencil and paper testing, and is expensive. But
it's the most objective way to document cognitive impairment. However, the cognitive
defects we can measure can be fairly subtle. So be sure the neuropsychologist you see has
experience as an expert medical witness testing people with severe fibromyalgia and/or