As disability insurance lawyers, we see clients with a wide variety of disabilities. Some clients may be unable to work due to physical or psychological limitations and restrictions, while most suffer a combination of both. In our decades of experience litigating Long-Term Disability (LTD) insurance benefit disputes, perhaps no other type of disability has proven more complex to litigate and no other client has been so challenging to accommodate, than those disabled due to Multiple Chemical Sensitivity (MCS).
In this article, we will discuss some of the challenges faced by those suffering from MCS in their LTD claims and also the challenges we’ve encountered in our decades of experience representing clients with MCS and ensuring their full and meaningful participation in the litigation of their LTD benefit disputes.
We will also provide some useful information (Tips for Applying for LTD) and encouragement to those disabled from MCS who are unable to work and who are struggling to prove disability to their insurance companies.
Multiple Chemical Sensitivity (MCS) or idiopathic environmental intolerance is a very real and disabling condition, affecting approximately three percent of Canadians, of which a large majority are women (70-80%). Both the Ontario and Canadian Human Rights Commissions have accepted that the condition is a “disability” under their respective human rights codes. Unfortunately, in our decades of experience representing MCS clients in their Long-Term Disability (LTD) benefit disputes, insurance companies often deny LTD benefits to those who become disabled from work due to MCS.
The symptoms and triggers of MCS can vary greatly between people. Symptoms of MCS are often neurological and include headaches, extreme fatigue, unusually heightened sense of smell, body aches, vomiting, difficulties breathing, tremors, burning sensations, rashes, difficulty with concentration or a sense of feeling as though in a “fog”. These symptoms can be triggered when exposed to chemical compounds at levels far lower than the amounts that have been shown to be harmful to the general population. Triggers include scented products, cleaning products, laundry detergents, paints, petrochemicals, cigarette smoke, pesticides, pets, plants, fuels, electromagnetic radiation, moulds and foods.
To complicate matters, frequency and severity of symptoms can also differ greatly between individuals. For example, one person may be able to withstand exposure one day, only to be severely affected the following day. For others, symptoms may increase gradually, the longer the person is exposed. The complexity and variability of the condition can prove challenging for doctors to diagnose and treat and also for LTD insurance companies who are assessing MCS claims for LTD benefits.
Often those with MCS have a number of mental health-related issues, as well. For some, these stem from living with an undiagnosed illness for years, combined with a lack of support from family and healthcare providers. These factors alone can aggravate our clients’ mental health; triggering mental illnesses such as anxiety, depression and panic. In turn, these mental health conditions may then aggravate their physical symptoms, causing a downward physical and emotional spiral.
Together, the physical, psychological and cognitive symptoms of MCS can be severe and limiting. Our clients often describe not being able to go anywhere without encountering a trigger and aggravating their symptoms. We have had clients who are not only disabled from work due to triggers in their workplace, but are also unable to live in their homes and are forced to live in their cars, year-round.
The same triggers that exist at work, also exist in doctors’ offices, medical clinics and hospitals, which can deter MCS sufferers from seeking treatment for their disabling conditions and also for other potentially serious illness and injuries. Compounding their issues are the psychological effects of isolation, alienation, not being believed, and feeling alone and misunderstood. Depression and anxiety further complicate the existing cognitive impairments/symptoms of MCS (such as “brain fog” and communication difficulties).
To further complicate matters, many MCS patients are often diagnosed with other various types of “invisible disabilities” such as chronic pain conditions and chronic fatigue syndrome and mental health related conditions (such as personality disorders and bipolar disorder). In the context of LTD claims, these other diagnoses can be a double-edged sword; on one hand they may serve to help prove disability or on the other, they may serve to add complexity to our clients’ LTD claims by providing insurance companies additional support for their position in the Court Action.
In our law practice, we have seen clients who have struggled for years to uncover the cause of their symptoms; often undergoing invasive testing and seeing countless doctors, specialists and other health professionals. Without a diagnosis and treatment plan, our clients feel lost and defeated. They may be told by their friends, family and even their doctors that their symptoms are all “in their head”. When we see them, their insurance companies have recently denied or terminated their LTD benefits, putting their entire future financial situation at risk. This is sometimes the proverbial “straw that breaks the camel’s back”.
The difficulties in proving eligibility for LTD benefits for MCS is similar to the difficulties encountered in proving claims for other types of so-called “invisible conditions”, such as chronic pain conditions and chronic fatigue syndrome. The problem with “invisible conditions” like MCS, is that they are extremely difficult to diagnose using objective testing. Insurance companies tend to like clear diagnoses with objective evidence to support the diagnosis and the severity of symptoms. In other words, without “objective” evidence to confirm a diagnosis of MCS and support the severity of symptoms being claimed, insurance companies have very little to go on to approve LTD claims for MCS.
Time and time again, we have heard MCS clients express, not only frustration but also disappointment when test results repeatedly come back as “normal”. Our clients have explained that an abnormal test result, indicating a serious condition would be better than “not knowing” and better than a diagnosis of MCS. They tell us that a diagnosis such as Lyme Disease or MS would serve to add legitimacy to their complaints, provide them with greater certainty with respect to their prognosis, direct their treatment and be more readily believed by their family, friends, doctors and of course, their LTD insurance companies.
For those suffering from MSC, submitting a claim for LTD benefits can sometimes be more challenging (or at least more challenging in different ways) than it is for those suffering from other disabling conditions. Completing forms and gathering medical information can be emotionally and physically taxing, not to mention a logistical nightmare; having to attend various offices to meet with doctors and to drop off and pick up forms and medical records; each time risking exposure to triggers and aggravating symptoms. (Hopefully, with procedural changes due to COVID-19, healthcare providers will be better able to manage these appointments and requests virtually).
To help, we have compiled the following list of three important tips for applying for LTD. In addition to these three tips, we stress the importance of finding a team of supporters to assist in the application, appeal and litigation of the LTD claim. In our experience, no other tip is more important than this for those struggling with MCS. Clients with MCS who have the support of doctors, social workers, family, friends and lawyers fare far better emotionally, physically and financially than those who lack support.
If you are suffering from MCS and you are not able to work, we encourage you to consider the following tips for applying for LTD benefits:
Always focus your answers and remind your doctor(s) to focus answers to questions on forms and in telephone calls, on your functioning; that is what you can and can not do, as a result of your symptoms. This is what the insurance company should be most concerned with in assessing your LTD claim.
Many people believe that a diagnosis is necessary to be successful in an LTD claim. Often with MCS (as with other “invisible conditions”) it takes a long-time to get a diagnosis and sometimes, the cause of your symptoms might never be determined or you might even be misdiagnosed. Approval for LTD does not hinge on a specific diagnosis or identifying a specific trigger. For LTD, it’s all about whether you meet the definition of disability under the plan/policy.
In terms of meeting the definition of disability, it will help your LTD claims representative to know the specific duties of your “own occupation” and what specifically prevents you from doing those duties. For example, pain and fatigue may prevent you from standing, walking, sitting, concentration, memory, communication, emotional regulation, etc. These are all functions you might need for your job. Therefore, the insurance company needs to understand that your symptoms prevent you from doing both the physical and cognitive demands of your job on a consistent basis or at all.
While treatment is extremely important for you medically, it is also important for proving your LTD claim. This holds true for all LTD claims, but especially so for claims for MCS. The nature and extent of your treatment tell the insurance company a lot about the severity of your condition, about your self-reported restrictions and limitations, and about your credibility. When all you have to rely on is what you are telling your doctors, you need another means to support your claim. Treatment is one of the best ways to prove to your insurance company that you are not able to do your job and that you are not malingering or exaggerating your condition.
Follow your doctor’s orders; meaning you should be filling prescriptions, attending specialists’ appointments, getting investigations done (such as x-rays, blood tests, MRI’s, medical assessments, etc.); regularly attending therapies that are recommended or prescribed (such as physical therapy, massage, acupuncture, cognitive behavioural therapy, group therapies, etc.); and following your doctors’ recommendations regarding your functional limitations and restrictions (such as, trying to go on walks, not overdoing it, rest as needed, limiting exposure to triggers, etc.). Do not be afraid to advocate for yourself by researching your condition and talking to your doctors and specialists about all possible referrals or treatments.
Your insurance company will be more likely to be convinced of the severity of your condition and of your self-reported functional restrictions and limitations if there are medical records that document consistent self-reporting that is consistent with what your doctors observe (and which might be observed in the insurance company’s surveillance).
If your family doctor has referred you for countless tests and investigations and to various specialists, that would suggest that your doctor believes you and believes that your condition is so severe as to warrant these investigations and referrals. Specialist reports will lend additional credibility and validity to your self-reports, as they will also be consistent with what your family doctor and you are reporting.
It should be clear to the insurance company, from all the testing and appointments and treatments that you are not choosing to be disabled. Who would opt to spend their days avoiding triggers, going from doctor to doctor, being poked and prodded, and undergoing often painful (emotionally and physically) treatments, if they were able to work and earn their full salary?
When completing forms or speaking with the insurance company representative who is assessing your claim, remember to be open and honest. You should also be careful not to be overly optimistic about your return to work or overstate your actual functional abilities. You should include all of your symptoms in your claim (physical, neurological, cognitive, psychological, etc.) and explain the waxing and waning of those symptoms.
Remember, it is not unreasonable to assume that the insurance company wants to pay legitimate claims. Since you are legitimately struggling with your functioning, be clear about what you cannot do, but also be clear about what you can do. You do not need to be bedridden everyday or in the hospital to be eligible for LTD benefits. You must only satisfy the insurance company that you are not able to do the “essential duties of your own occupation” or after the initial period (usually 24 months), that you are not able to do the duties of “any occupation”. (Note: the definitions of disability in your policy might be slightly different.)
If the insurance company finds a medical record or conducts surveillance and finds inconsistencies in what you have reported to them versus what you are doing in the “real world” or what you have reported to your doctors, your credibility comes into question and your claim becomes that much more difficult to prove.
Overstating your abilities or optimism for your recovery can be relied on by the insurance company to deny or terminate your claim. It may be difficult to admit to ourselves and others that we are not doing well and that we are not coping as well as we would like. While optimism and positivity may be key to recovery or key to living with a disabling condition, your insurance company could easily misconstrue these sentiments and use them as a basis for denying/terminating your claim or initiating rehabilitation and return to work efforts, well before you are ready.
If in response to the information submitted in support of the LTD claim, the insurance company denies or terminates the claim, continuing to pursue the claim for LTD benefits may seem like an altogether impossible feat for MCS sufferers.
Most people submit all of the information they have about their disability at the initial application stage and on an ongoing basis as requests come up from the insurance company (which can be quite frequent in the early days of an LTD claim).
When the insurance company comes back and says that the information submitted is not sufficient to prove disability and denies or terminates LTD benefits, it can be difficult to imagine what “new information” is available or could be obtained to successfully appeal the insurance company’s decision. If no “new information” is available to appeal the decision or if “new information” is provided but the appeal is unsuccessful, those suffering from MCS may seriously consider throwing in the towel and walking away from their benefit dispute with the insurance company; foregoing their entitlement to LTD benefits, altogether. For those with MCS, “avoidance” is a common protective strategy and one that may ultimately leave them isolated and without an income.
However, If walking away from LTD benefits is not an option (either due to financial reasons or as a matter of principle), the only other option is to fight for LTD benefits by filing a court action with the help of a lawyer and others such as social workers and doctors. Unfortunately, even with the offer of help, for those with MCS, the health and logistical barriers to litigation, such as a serious lack of energy, focus and concentration and the inevitable risk of exposure to triggers that will be encountered in the course of litigation and will aggravate symptoms, may seem too great to bear. Despite the inevitable financial and psychological repercussions, even those who do want to pursue their LTD benefits in court will often be deterred by the limitations and restrictions of their condition. This poses a serious concern for access to justice.
For example, for those with MCS, hiring a lawyer and suing the insurance company is riddled with complications, extreme stress and anxiety. Normally, for a person who is disabled from some other types of condition, pursuing the denial of their LTD claim it is a question of finding an experienced lawyer; meeting with him/her; signing paperwork; providing information and updates to the lawyer; continuing treatment; attending meetings; attending examinations for discovery and mediation; and instructing the lawyer regarding settlement or trial. However, for those of our clients with MCS, these tasks are not so simple; they may be overwhelmed by a whole host of barriers that make it appear impossible to pursue their LTD benefit claims by way of a court action.
Despite the financial and psychological repercussions, even those who want to or desperately need to pursue their LTD benefit claims in court will be deterred by the limitations and restrictions of their condition. This poses a serious concern for access to justice to those with MCS. The question becomes how can full and meaningful participation in a lawsuit (as required by the Canadian Charter of Rights and Freedoms) even be possible when faced with the limitations and restrictions imposed by symptoms of MCS?
It is important to remember that MCS is considered a “disability” in the Ontario and Canadian Human Rights Codes. As such a number of protections are in place that should ensure people disabled with MCS are accommodated to the extent that they are able to pursue court actions for LTD benefits. Pursuant to human rights legislation, accommodations must be offered by law firms and the courts and those accommodations must be made short of “undue hardship”. The concern is that it can be extremely difficult to accommodate MCS clients and litigants and it is possible that the accommodations required may exceed what is reasonable and cause “undue hardship”.
Fortunately, MCS litigants have the added protection of the Canadian Charter of Rights and Freedoms which is meant to ensure that everyone has the right to equal protection and benefit of the law without discrimination based on mental or physical disability (among other grounds).
Finally, there is a third protection in place for Canadians with MCS: The United Nations Convention on the Rights of Persons with Disabilities. This Convention is an international agreement that promotes and protects human rights for persons with disabilities. According to the Convention, persons with disabilities have the right to be treated equally, make their own decisions, have their rights respected, and participate in society. Specifically, Article 12 states that Canada (and other countries who signed the Convention) shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
Together, our laws are available to rely on to ensure that those with MCS are able to pursue their legal rights to sue for the LTD benefits to which they are entitled. To do so lawyers and the court must not only make available reasonable accommodations but also “take appropriate measures” to allow for MCS litigants to be able to have full and meaningful participation in their court actions.
Clients with MCS have complex LTD cases and their individual needs and accommodations in litigation can be equally complex. We understand that without these accommodations in how we serve these clients and without accommodations by opposing counsel and by the courts, these clients will have no alternative than to walk away from their LTD benefit disputes. In our view, few other disabled clients are more often overlooked in our profession’s efforts to provide equitable access to justice.
In our practice, we start by validating our MCS clients’ suffering; letting them know that we see them and we believe them and that we will help them to get the LTD benefits they are entitled to. In addition to asking questions about their symptoms and client service needs, we find out about their specific triggers, limitations and restrictions and then make best efforts to accommodate them in our representation and also in the litigation.
For example, we accommodate MCS clients in the following ways:
Applying for LTD for a condition stemming from MCS is a difficult task, at the best of times, and even more so when you are struggling with the symptoms of your disability. It is important that you get help where you can to ensure that your application is complete, accurate and most of all, persuasive to your insurance company to increase the likelihood that your claim will be approved and to avoid the stress of appealing or litigating a denial.
From decades of experience litigating LTD claims from both sides (as in-house counsel for insurance companies defending LTD claims and as plaintiff’s counsel, representing disabled persons in their complex LTD disputes with all insurance companies in Canada), MK Disability Lawyers knows that MCS LTD claims (as well claims for chronic pain, chronic fatigue and mental health conditions) are one of the most common types of claims that are denied or later, terminated. We understand why these claims were not successful and how to persuade insurance companies of their legitimacy and resolve these disputes for our disabled clients.
Together, our three law partners have over 50 years of LTD litigation experience representing professionals, self-employed individuals, teachers and other employees with MCS and similar “invisible” conditions. Based on that experience, we have put together the above list of the Three Most Important Tips for those with MCS applying for or appealing their LTD claims. It is our hope that our suggestions will increase the likelihood of these claims being approved early on so that you can focus on your recovery without the added anxiety over possibly losing your income and other health-related benefits and possibly, losing your job or business.
We encourage you to contact us at MK Disability Lawyers if your STD or LTD claim has been denied or terminated by your insurance company. We offer free consultations to help you decide whether to appeal the denial of your claim or whether to proceed straight to litigation. Remember, there is no requirement that you appeal the denial or termination of your STD/LTD claim. (Note: Unionized employees may be required to grieve STD and/or LTD denials/terminations, depending on the wording of their collective agreements. We are able to review collective agreements for jurisdiction over STD/LTD issues.)
As an added support, we are offering free consultations at the sick leave/STD/LTD application stage. If you are considering sick leave and/or applying for STD or LTD for MCS (and/or for another “invisible condition”), we encourage you to contact us to schedule a time for us to discuss the details of your disability claim. We will discuss the claims process with you, provide you with direction with respect to what to include in your initial claim and review of your claims forms before you submit them. Every claim is different and it is important that you use wording and provide medical evidence that will be most supportive and persuasive to the insurance company and result in the approval of your claim.
We appreciate that there are a number of resources available to help you in your LTD claim application and appeal. Unlike many other resources provided by your employer and insurance company and union, we have the unique perspective that comes only from seeing and litigating countless LTD claims for conditions, such as MCS (and all variety of other medical conditions) that have been denied or terminated and we can use that insight and experience to help you avoid those outcomes. One of our partners, Courtney Mulqueen, also has the added insight that only comes from having worked for insurance companies defending LTD claims.
If you have specific questions about LTD, please contact us to schedule a free individual consultation. We also invite you to visit our website www.mkdisabilitylawyers.com, where you will find an extensive collection of blog articles about LTD, including our most recent articles:
“LTD and COVID-19: Applying for Disability Benefits During COVID-19,” “LTD and COVID-19: Mental Health Claims Related to the Pandemic” and “Struggling to Be Seen and Believed: Making an LTD Claim for an “Invisible Condition” and our “Guide to LTD for Union Representatives”, as well as other information related to applying LTD.