July 15, 2021
Emily came to our firm to apply for disability after being out of work for almost two years because of debilitating back pain. At only 35 years old, she was stunned that her back pain was so intense and had lasted so long. When I asked her why she had waited so long to apply for Social Security Disability benefits, Emily said “I always thought my back would get better. I never expected to be a disabled person”.
Nobody expects to become a disabled person. And frequently when our clients become injured, they imagine that their injuries will improve with time and that they will get back to work. In fact, most people who suffer an injury do heal with time and resume work. But some have chronic, debilitating symptoms, such as pain, which prevent them from returning to work.
Emily had been performing the heavy work of a Certified Nursing Assistant since she was 17 years old. She told me stories of helping eldery patients in a nursing home. She loved her patients. Emily loved hearing their stories and talking to them about her pets and her family. She considered it her life’s work to make them smile and make their days a little brighter. However, even simply repositioning an elderly person in the bed could be an immense physical chore. While Emily loved the work and her patients, she admitted that she often found herself in situations where she was lifting amounts of weight that were simply unsafe. It was not uncommon for Emily to be working one on one with people who were unable to stand or move from the bed to the wheelchair on their own. Often these patients were considered “unable to provide assistance” or “unable to bear weight”. This would mean that under the nursing home’s guidelines, two people were supposed to be involved in lifting the patient. However, with staff shortages and budget shortfalls, Emily was often confronted with the choice of trying to lift her patient by herself or waiting for what could be an hour or more for another CNA to help her.
Health Care Workers are At Risk
Certified Nursing Assistants and other health care workers are among the most likely workers to suffer a back injury. One study revealed “66,910 cases of work-related musculoskelatal disorders (WMSD) [occur] in the health care and social assistance private sector. In almost half of those cases…a patient or resident of a health facility was involved.”1 Although there is regulatory guidance which addresses factors such as the amount of weight a health care worker should safely lift, the fact remains that this guidance does not always keep workers safe. The Occupational Health and Safety Administration (OSHA) acknowledges that caregiving tasks frequently entail “high physical demands due to the large amount of weight involved, awkward postures that may result from leaning over a bed or working in a confined area, shifting of weight that may occur if a resident loses balance or strength while moving, and many other factors”2.
Emily recounted one incident where her patient had fallen from the shower chair while Emily was bathing her. Emily was worried about her elderly patient being on the cold tile floor and decided to try to get her back onto the chair without waiting for assistance. This would be a decision Emily would come to regret. She leaned down to pull the woman up, but on trying to lift her, Emily felt a pull in her back and then instant, burning pain. She had to leave work in the middle of her shift and go to the emergency room. When x-rays did not find a problem, Emily thought she had pulled a muscle and was preparing to return to work the next day. Sadly, intense back pain, difficulty with walking any distance and difficulty with sitting kept Emily home from work for three months. At that point she tried to return to “light duty” where the nursing home had carved out a position for her that involved sitting a desk. Emily tried to do that job but left crying at the end of her first shift. There was just no way she could sit for the time required of a desk job or walk and lift as required of her beloved CNA job.
Medical Evidence Matters in a Disability Claim
Emily embarked on the hunt for a medical cure for her back pain. She had already seen her primary (family) doctor and been put on pain relievers and muscle relaxers. She returned to her primary doctor and was referred for physical therapy. Emily tried to engage in physical therapy but the pain was so intense that she dropped out after 3 visits. Next, her doctor referred her to an orthopedic specialist. After two visits, the orthopedic doctor sent her for an MRI. The MRI showed that Emily had arthritis and bulging discs. The orthopedist told her there was nothing she could do for her and referred Emily to a pain management doctor. The pain management doctor provided epidural injections and eventually performed a radiofrequency ablation, which Emily was told, meant that he was “burning the nerve endings to dull the pain”. Emily did get temporary relief from this. She had a decrease in her pain for about 3 weeks. When the pain returned, it returned with a vengence. Emily was in bed for 2 days after trying to pull weeds in her garden. At that point, Emily’s pain management doctor told her that she would have to learn to live with the pain. This struck Emily hard. It was the first time she was being told that she may not get better.
The same week that Emily learned her pain was likely to last, she also received a letter from her employer. After holding her job for a year, they were officially terminating her. Emily did not realize she could be terminated in this way. She was distraught. She laid on the couch for months in a depressed state. Finally, Emily’s sister persuaded her to see a therapist. A year and three months after her injury, Emily began treating in mental health counseling to address what had been called Major Depressive Disorder. In therapy, Emily confronted the notion that she would have to live with pain for the rest of her life. She would not be able to return to the job that she loved. She would have to deal with the financial instability that felt like it was crushing her. Emily decided to re-engage in physical therapy; although this was incredibly painful, Emily wanted to try absolutely everything to attempt to get better. The therapist convinced Emily to call a disabillity attorney. Finally, nearly two years after her injury, Emily reached out to my firm.
The Disability Claim Process Can be Long and Include Several Stages
The road to a disability finding was a long one. Because Emily was considered a younger individual under Social Security’s rules, she would statistically have a much more difficult time being approved for benefits. She was in the group of people who was likely to be denied at the initial stage of the application process. Emily was denied again at the reconsideration stage, and we requested a hearing before an administrative law judge. By this time, Emily was undergoing accupuncture and massage therapy to try to treat her pain.
Because Emily had done so much to seek medical treatment, her file was robust. It was filled with physical exams and objective findings. Another MRI had been performed along the way and so Emily had imaging, objective evidence and ongoing communications with her doctors to substantiate her claims. When her doctor filled out a form that described her significant functional limitations, the information on the form was very consistent with the information throughout her file.
Emily and I discussed what she would encounter in the hearing. We discussed her testimony and worked on ways to make sure she talked about the important points in the short time frame she would have to testify before the judge. Emily testified wonderfully. She spoke her truth and addressed all the important issues. Two months later, she received a 17-page document titled “Fully Favorable Decision”. Emily had won her case. Although I could not help her to cure her medical condition, it was wonderful to be able to help her to get some financial stability and qualify for medical insurance so that she could focus on trying to get better.
1https://doi.org/10.1177%2F2165079917704670 Implementation of a Safe Patient Handling Program in a Multihospital Health System From Inception to Sustainability: Successes Over 8 Years and Ongoing Challenges, Christine Olinski, RN, MSN, COHN-S/CM, Christine E. Norton, PhD, ATC/L