Disability and Foot Pain
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Dr. Fenton of www.footlaw.com Discusses Disability and foot Pain

Dr. Fenton, I am writing to inquire about plantar fasciitis and disability. I am on a newsgroup, www.heelspurs.com/bbs and many there cannot walk, etc. because of the foot pain. It is virtually impossible to find a doctor that will put us on permanent disability for this crippling disease. Most of us on the ng have seen more than one podiatrist, orth. surgeon, etc. and we are still in pain. Is there anything you can do to help facilitate many of us to get Permanent Disability? I live in San Francisco, and the others live all over. If you don't mind, I would like to post your response to the group.

Sincerely,
Shaira G


Ms. G:

Disability Insurance coverage can be provided for in usually one of three ways: (1) through Workers' Compensation; (2) through Social Security Disability; or (3) through a private disability insurance plan (whether individually purchased or supplied by the employer). Each method has different requirements in order to qualify for disability. These will be discussed below.

What all of these methods share in common is that the patient's physician, whether a podiatrist, orthopedic surgeon, or other physician, must certify that the person is disabled. This is probably the most difficult hurdle for most people to overcome, and judging by your letter, it is the area that has given you the most frustration.

Unfortunately, most physicians do not consider a person with plantar fasciitis to be disabled. Most physicians view the condition as a treatable condition in which the patient can continue to walk.

The myriad of treatment options, many of which are delineated on www.heelspurs.com, demonstrates that there is no "silver bullet" cure. Unfortunately, most physicians see the myriad of treatments as steps that a patient must go through in the treatment of the disease. The rationale being that as long as there is a treatment option available that has not yet been tried, then there is a possibility that the condition can be "cured."

Most physicians will not view a plantar fasciitis sufferer as being disabled until they have undergone surgery and have either received no benefit from the surgery or have actually gotten worse. It does not seem fair that a plantar fasciitis sufferer would have to undergo the risks of heel spur or plantar fascial (regular or through endoscopic plantar fasciotomy) surgery just to get a disability rating, but that is the unspoken view of most physicians.

Finding ONE physician to certify the disability is usually not adequate. Most claimants will have to submit to an Independent Medical Exam (IME) to verify the first physician's findings. The physician performing the IME is likely to deny that disability exists. Then the claimant must find a third independent physician to back up the opinion of the first physician certifying disability.

If a physician does certify the person as being disabled, then the legal process can begin.

1. WORKERS' COMPENSATION DISABILITY

In order to qualify for Workers' Compensation disability, the disabled person must show, among other items, that the condition "arose from" the employment. Since there was no injury incident, this can be difficult to prove. Plantar fasciitis can "arise from" employment in several ways. Some ways include standing on concrete floors (even carpeted concrete floors) and simply walking/standing for long hours.

In fact, since there usually is not an injury incident, then often the physician must certify that fact. Just as many physicians are not willing to say that the plantar fasciitis sufferer is disabled, many are not willing to say that the employment caused the fasciitis. This is especially true regarding the obese plantar fasciitis sufferer. Many physicians view that scenario as a life-style choice of the patient and not a work-related accident.

2. SOCIAL SECURITY ADMINISTRATION DISABILITY INSURANCE

The test for SSA DI is extremely tough. There are several "tests" which must be met in order to qualify for SSA DI. The main test is "whether the claimant is employed in a substantially gainful activity." If the answer to that question is "yes," then SSA DI is unavailable for the claimant.

If the claimant is not currently gainfully employed, then basically, it must be shown that the claimant cannot perform "past relevant work" (i.e., work that the claimant is suited to by training or experience). If the claimant cannot perform such past relative work, then if SSA can show that the claimant can perform other gainful employment, then benefits would be denied.

Under SSA DI it is very difficult for a plantar fasciitis sufferer to qualify. The reason being that most often the plantar fasciitis sufferer can be employed, through training or experience, in a position requiring minimal walking. A plantar fasciitis sufferer who has undergone surgery and had severe complication would probably qualify for SSA DI.

3. PRIVATE DISABILITY INSURANCE

Whether a plantar fasciitis sufferer qualifies for disability under a private insurance plan depends upon the particular policy and the policy's definition of "disabled." One of the first steps that an attorney takes is to request a copy of the disability policy and review its terms.

There are as many definitions of "disabled" as there are insurance policies, but it essentially comes down to two classes: (A) OWN OCCUPATION definition and (B) ANY OCCUPATION definition.

Under an Own Occupation policy what needs to be shown is that the person is unable to person the duties of their occupation, even if they could work in another occupation. For example, a concert pianist who losses the function of a hand and therefore cannot perform the duties of that specific occupation is disabled and entitled to full benefits even if the pianist then finds employment as a skilled artisan. However, an Any Occupation policy is almost as difficult as SSA DI. The typical disability policy usually contains a YOUR OWN OCCUPATION definition for the initial year or so of permanent disability and thereafter reverts to an ANY OCCUPATION definition.

The attorneys of The Foot Law Group are available to assist clients in applying for disability coverage or working in an appellate role should the disability application be denied. Nonetheless, as can be seen from above, the outcome of any case depends upon (1) finding a physician to certify the disability and (2) overcoming the hurdles discussed above.

Charles F. Fenton III DPM JD

http://www.footlaw.com

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