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Knoxville Personal Injury Law Blog

OHSA citations protects workers against workplace injury

During the middle of April this year, the Occupational Health and Safety Administration cited a company after an inspection. The safety inspection was done after two incidents in which two workers each suffered a workplace injury. OSHA fined the company, alleging that it has repeatedly violated safety requirements. The role of OSHA is to act as a watchdog against employers in the United States, including Tennessee, who do not ensure safe working conditions.

In this instance, the hand of one of the injured workers was seriously crushed, while the second injured worker's hand had to be partially amputated. After the investigation was completed, the company was fined for 12 safety violations, all serious, as well as one willful violation and one repeat violation. The company faces $76,900 in potential fines for several of the serious safety violations cited by OSHA.

Tony Farmer Works on Workers' Compensation Bill

     The administration bill dealing with workers' compensation was amended and passed last night to add an escape clause back into the bill. This is due to the negotiations and hard work of Tony Farmer and others.  

AMENDMENT #2 revises the provision of Workers' Compensation Law, described in (7) of the Bill Summary, that authorizes an injured employee who does not have a meaningful return to work to obtain more benefits than the employee would be eligible to receive when applying the appropriate multipliers to the employee's impairment rating if at least three of the following facts concerning the employee are true as determined by the workers' compensation judge based on clear and convincing evidence:

  1. The employee lacks a high school diploma or GED, or the employee cannot read or write on a grade eight level;
  2. The employee is 55 years of age or older;
  3. The employee has no reasonably transferable job skills from prior vocational background and training; and
  4. The employee has no reasonable employment opportunities available locally considering the employee's permanent medical condition.

     This amendment changes the maximum award that is available in cases where the cap is exceed from up to 450 weeks multiplied by the employees compensation rate adjusted to account for the amount of the employee's post injury wage to up to 275 weeks multiplied by the employees compensation rate, inclusive of the employee's permanent partial disability award.

     For more information about other changes taking effect for injuries on or after July 1, 2014, please go here.

Tennessee street racing car wreck tragically kills 19-year-old

Street racing or drag racing is something that happens in the streets across Tennessee and the rest of the United States. During April 2013, a 20-year-old male was killed on the streets of Tennessee, after two street racers crashed into his car. One year later, another young male, aged 19, died in a car wreck during a drag race.

According to the deceased victim's brother, the teenage boy was a spectator at the race, just like most other Saturdays. The police reported that the deceased was turning left at an intersection, when a red Mustang traveling west crashed into his vehicle. The victim's girlfriend, a witness of the accident, reported that the deceased's seatbelt was stuck and she immediately tried to undo it. Other bystanders also came to help and pulled him from the wreck.

Tennessee campaign attempts to decrease fatal car accidents

Road safety officials in Tennessee have made it their goal to try to contain the number of fatal car accidents caused by distracted drivers by creating an awareness of the dangers of distractions while driving. In Tennessee, hundreds of car accidents are caused yearly by drivers, who are distracted, particularly by mobile phones. It is estimated that approximately 50 percent of fatal accidents can be ascribed to drivers who are distracted.

The new initiative, called Drive to Zero, is focused on decreasing the number of fatal accidents. The viewpoint taken is that every fatal accident is one too many. During the launch of the campaign, one official provided a disturbing image. In his talk, he indicated that to receive or send a text message requires that the driver look away from the road for 4.3 seconds. In that minute amount of time, a driver can travel the complete length of a standard football field while not paying attention to the road.

New Process for Veteran Social Security Disability Claims

     There is some good news for disabled veterans going through the Social Security Disability or SSI process! Effective March 17, 2014, the Social Security Administration (SSA) began expediting disability claims for veterans receiving VA service-connected disability and who have a rating of 100% "Permanent and Total" disability form the Department of Veterans Affairs. The SSA announced:

The VA rating only expedites Social Security disability claims processing and does not guarantee an allowance for disability benefits. These veterans must still meet Social Security eligibility and entitlement requirements for a disability allowance.

     The expedited processing of claims will occur at levels of the disability systems (application, reconsideration, hearings, etc.). The veteran must provide the rating letter demonstrating 100% Permanent and Total disability for service-connected disabilities.

     Even if the veteran has not been deemed 100% Permanently and Totally disabled for service-connected disbilities by the VA, he or she may still have the claim expedited for Wounded Warrior status.

Appeals Council Statistics for Social Security Disability

     If a Social Security Disability or SSI claimant loses at a hearing before an administrative law judge (ALJ), the next step of the process often is an appeal before the Appeals Council (AC). At the AC, the SSA looks to determine if the ALJ's decision is not supported by substantial evidence or errors of law were committed requiring reversal or remand. The SSA recently released statistics about the AC for 2013.

     In 2013, the AC processed 176,251 requests for review, which was a 6% increase over 2012, but new receipts of requests for review actually declined. The average processing time at the AC was 364 days! Out of the claims processed, the dispositions were as follows:

  • Review denied in 76.87% of cases;
  • Remands in 17.11% of cases;
  • Dismissals in 4.15% of cases;
  • Fully Favorable Decisions in .8% of cases;
  • Partially Favorable Decisions in .65% of cases; and
  • Unfavorable Decisions in .42% of cases.

     Unfortunately, these statistics are similar to those are to the Application and Reconsideration levels in terms of successful determinations for claimants.

High speed and DUI car wreck -- jury says guilty of homocide

A 21-year-old male will have to wait until May 5 to know what his sentence is, after a jury found him guilty in a vehicular homicide case on Thursday, March 27. The Tennessee trial lasted for two days. The young man stayed calm during the verdict, although earlier, he testified that the deceased of the car wreck had been his best childhood friend. As they heard the verdict, several of his supporting family members were crying.

Testimony by several witnesses provided the facts of the case. The 2012 car wreck happened during the early hours of the morning, when the defendant left a party to go and get cigarettes. He allowed his 20-year-old best friend to get into the car with him despite knowing that he had had too much to drink. Another friend from the party testified that his offer to drive was declined. The BMW in which the two young men were traveling hit a metal sign after the driver lost control and left the highway.

Social Security Disability or SSI Benefits Due to Amputations

     A person can qualify for Social Security Disability or SSI benefits if she has suffered from an amputation or amputations. The Social Security Administration (SSA) follows a step-by-step evaluation to determine if someone is medically qualified for disability benefits. At the third step of the process, the SSA looks to see if the person has an impairment or several impairments that meet or equal a "listing." The listing is as follows:

1.05 Amputation (due to any cause)

A. Both hands;

or

B. One or both lower extremities at or above the tarsal region, with stump complications resulting in medical inability to use a prosthetic device to ambulate effectively, as defined in 1.00B2b, which have lasted or are expected to last for at least 12 months;

or

C. One hand and one lower extremity at or above the tarsal region, with inability to ambulate effectively, as defined in 1.00B2b;

or

D. Hemipelvectomy or hip disarticulation.

     Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities.

     Individuals must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out activities of daily living. They must have the ability to travel without companion assistance to and from a place of employment or school.

     If a claimant does not qualify for benefits based on this Listing, the impairments can still be considered when determining whether she can return to past employment or whether jobs exist in the local and national economy. For instance, if lifting, standing, walking, sitting, or pushing/pulling are significantly limited, these factors might eliminate jobs existing in the local or national economy to the point a claimant is found disabled.

Tennessee man seriously injured and horse killed in car wreck

An early morning accident in the middle of March led to a dead horse and a seriously injured male. The car wreck happened shortly after 6.30 a.m. on a recent Friday morning in the region of the Madison and Carroll County lines. This area of Tennessee includes a great deal of farmland with many people keeping animals in fenced fields along the highway.

It is reported that, on this particular morning, a horse must have gotten out of its paddock and ran onto the highway. The horse was hit by two cars, one after the other. Sadly, the horse was killed, but no persons travelling in either of the cars were injured in accidents.

Federal District Court Overturns Unfavorable Decision in Social Security Disability Claim

     On March 3, 2014, the Federal District Court for the Eastern District of Tennessee sitting at Knoxville overturned the Commissioner's decision to deny Social Security Disability benefits to Rhonda Jackson, one of the firm's clients. The case will be remanded back to the Office of Disability Adjudication and Review for another hearing.

     As noted by the court, Mrs. Jackson worked as a registered nurse from 1990 until 2005, and though she maintains her license as a registered nurse, this license is now in inactive status, and she has not worked since 2005. Mrs. Jackson alleges that she has been disabled since February 2005 due to chronic depression, lack of sleep, panic attacks, anxiety, and hand problems. She adds that she has trouble being around people and even leaving her house, noting that she is depressed as a result of various events that have occurred in her life. Mrs. Jackson testified that her inability to focus, forgetfulness, and pain are the worst of the medical maladies that have prevented her from returning to work.

Under the treating source rule, "the Commissioner has mandated that the ALJ 'will' give a treating source's opinion controlling weight if it 'is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a claimant's] case record.'" Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting 20 C.F.R. § 404.1527(d)(2)). If, however, an ALJ decides not to give the opinion of a treating physician controlling weight, he or she must then apply the following factors in determining the weight to give the opinion: "the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, [the] supportability of the opinion, [the] consistency of the opinion with the record as a whole, and the specialization of the treating source." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. § 404.1527(d)(2)).

     Here, Dr. May and Dr. Bergia, both specialists, provided opinions indicating that plaintiff was suffering from medical conditions and related limitations which, if accepted, support a finding of disability. Indeed, this was the testimony of the vocational expert at the hearing [Tr. 55-57]. The Court finds that the ALJ erred by failing to adequately address, evaluate, and assign weight to these treating source opinions, and thus his opinion was not reached through application of the correct legal standards and in accordance with the procedure mandated by the regulations and rulings promulgated by the Commissioner.

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