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Knoxville Personal Injury Law Blog

Workers' compensation claims -- how dangerous is your job?

The results of a recently conducted census into fatal workplace injuries did not bear good news for many workers. An increase of two percent in workplace fatalities is reflected in the preliminary results of the annual Census of Fatal Occupation injuries. In some industries across the United States, including Tennessee, the increase in fatal injuries increased a lot more than two percent, which may lead to an increase in workers' compensation claims.

The results of the census undertaken by the U.S. Bureau of Labor Statistics showed that three industries – mining, law enforcement and agriculture – are without a doubt the most dangerous. Both mining and law enforcement showed a 17 percent increase in work-related fatalities, while agriculture showed a 14 percent increase. Two more industries have shown significant increases in the number of fatal workplace accidents: manufacturing (9 percent) and construction (6 percent).

Supplemental Security Income (SSI) - ABLE Act

Recipients of Supplemental Security Income (SSI) can only have a limited amount of income and resources before their benefits are reduced or eliminated.  While a cap on income and resources for Supplemental Security Income (SSI) is a worthwhile requirement in most circumstances, it is often a drastic and punitive measure for those that are severely disabled from a young age.  Those individuals often never had a chance to work and build earnings.  In 2014, Congress passed legislation to provide relief for those that suffer disabilities at a young age and allow them to accumulate funds.

The Achieving Better Life Experiences (ABLE) Act became law in December of 2014.  It allows SSI recipients who became disabled before age 22 to open 529A accounts to be used to disability-related expenses.  The holdings in the accounts can grow without the earnings being taxed and up to $100,000 can be held without affecting the recipient's SSI eligibility.  Each state will have to set up its own framework for 529A accounts.  Additionally, the IRS and Treasury Department recently released a Notice of Proposed Rulemaking for ABLE accounts (80 Fed. Reg. 35602) addressing such things as who can establish an account, how disability will be determined and recertified, how residency is determined, etc.  

2 drivers indicted for fatal Tennessee truck accident in February

The Tennessee family of a 34-year-old mother and her 10-year-old son who lost their lives in February are still struggling to come to terms with the tragedy. The victims were knocked down by a vehicle while they were trying to help some car accident victims.  We wrote about this tragic truck accident on Feb. 24 ("Good Samaritans killed while helping at car wreck"). A grand jury in Williamson County recently indicted two drivers in relation to the deaths. 

According to a February accident report, a 49-year-old driver lost control of his SUV on Interstate 65, causing it to overturn during a spell of paralyzing weather conditions in the region. When the mother and boy came across the wreck, she stopped and rushed to the aid of the occupants, taking her young son with her. An approaching 63-year-old semi-truck driver apparently failed to keep a proper lookout, and his vehicle struck and killed them both. Five people occupied the SUV, two of whom suffered critical injuries.

Social Security Disability Insurance (SSDI) - Epilepsy or Seizures

I often get calls about qualifying for Social Security Disability Insurance (SSDI) and SSI due to epileptic seizures.  The Social Security Administration (SSA) has stringent rules for those seeking Social Security Disability Insurance (SSDI) or SSI based only on epilepsy at the listing level of the sequential process.  The regulations require:

11.02 Epilepsy - convulsive epilepsy, (grand mal or psychomotor), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once a month in spite of at least 3 months of prescribed treatment.

A. Daytime episodes (loss of consciousness and convulsive seizures) or

B. Nocturnal episodes manifesting residuals which interfere significantly with activity during the day.

11.03 Epilepsy - nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal manifestations of unconventional behavior or significant interference with activity during the day.

Most often a person seeking benefits does not qualify for benefits based only on the listing.  However, the person can qualify if the combined effects of the seizure disorder and any other conditions prevent work at past employment or other jobs that exist in the local or national economy.



Arrest made after fatal Tennessee car wreck

Recently, a fatal accident in Tennessee between two cars led to the arrest of one of the drivers.  The car wreck happened shortly before 1:15 a.m. Tennessee police report that a victim died at the scene of the accident, while another was injured.

The arrest followed after a car operated by a 31-year-old man hit another vehicle from behind. Reports indicate that he was speeding. The driver struck from behind passed away at the accident scene. A female passenger traveling with the speeding driver was injured and taken to a hospital. No details regarding the extent of her injuries were provided.

Social Security Disability Insurance (SSDI) - Why the Backlog?

On August, 29, 2015, I wrote about waiting times and approval rates for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) at the hearing level. I try to blog on this subject every month or two because these statistics are so important to people waiting for their Social Security Disability Insurance (SSDI) or SSI to be heard at a local hearing office. Today, I will look at some information behind the statistics in an effort to figure out why the processing times continue to increase at the hearing office or better known as the Office of Disability Adjudication and Review (ODAR).

  • Pending claims at the hearing level as of July 2015 were 1,056,071 nationwide;

  • The number of dispositions per Administrative Law Judge (ALJ) is 3.03 per day as of July 2015;

  • As noted previously, the number of on-the-record (OTR) decisions has decreased in the past several years;

  • Flat funding from Congress over the last five years is reducing the Social Security Administration's (SSA) ability to reduce the backlog;

  • Congressional hearings focused on high disposition and high approval ALJs caused ODAR to put a cap of 720 dispositions per year on ALJs.

I cannot stress enough how important it is for constituents to contact their Congressperson about the need to properly fund the SSA and reduce the back log of claims.

The usefulness of event data recorders in car accidents

An event data recorder (EDR) is what consumers know as the "black boxes" generally referred to in airplane accidents. What many people may not know is that approximately 91.6% of new passenger vehicles manufactured since 2006 already have EDRs installed. The types of data recorded by EDRs have developed a lot since the modules were first implemented. Today, EDRs may be used to add to and corroborate findings from traditional investigations into car accidents in Tennessee.

The National Highway Traffic Safety Administration suggested that it becomes mandatory for all passenger vehicles, SUVs and light trucks manufactured from 2015 onwards to have EDRs installed. EDRs can record important information just before and/or during a serious accident. The recorded data can be downloaded to provide information on the performance of safety systems as well as pre-accident information such as engine and vehicle speed.

Social Security Disability Insurance (SSDI) - Evaluating Symptoms

Last week, I discussed how the Social Security Administration evaluates Social Security Disability Insurance (SSDI) claims.  This week I want to briefly discuss how the SSA evaluates subjective symptoms by claimants in Social Security Disability Insurance (SSDI) cases.  The SSA evaluates symptoms, including pain and fatigue, and the extent to which the symptoms can be accepted as consistent with the objective medical evidence. Cases are won and lost on the determination of the validity, extent, and effect of a claimant's symptoms, such as pain and fatigue.

The SSA follows a two-step process for evaluating symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness. First, the adjudicator must consider whether an underlying medically physical or mental impairment could reasonably be expected to produce the claimant's symptoms. Without such a finding, the symptoms cannot be found to affect the claimant's ability to work.

Second, the SSA evaluates the intensity, persistence, and limiting effects of the person's symptoms to determine the extent to which the symptoms limit the claimant's ability to do basic work activities. If the person's complaints are not substantiated by objective medical evidence, then the adjudicator must make a finding on the credibility of the statements based on the entire record. The regulations provide that symptoms, including pain, will diminish a capacity to work to the extent the limitations can reasonably be accepted as consistent with the objective medical evidence and the record as a whole. When assessing the credibility of a claimant's statements, the SSA considers:

  • The claimant's daily activities;
  • The location, duration, frequency, and intensity of the individual's pain or other symptoms;
  • Factors that precipitate and aggravate the symptoms;
  • The type, dosage, effectiveness, and side effect of any medication the individual takes or has taken to alleviate pain or other symptoms;
  • Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
  • Any measures other than treatment the claimant uses or has used to relieve pain or other symptoms; and
  • Any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms.

The SSA looks at consistency of complaints, medical evidence like medical treatment history, and other sources of information such as public and private agencies, other practitioners, and nonmedical sources like family and friends.

Worker's fingers amputated and reattached after workplace injury

Industrial workers in Tennessee are often exposed to equipment and machinery that can cause debilitating injuries if they are not protected from the working parts. There are strict safety regulations in place, and the Occupational Safety and Health Administration require companies to comply. One of the safety regulations that is often violated involves protective guards on all machinery to prevent a potential workplace injury.

OSHA recently cited a company in another state after completing an investigation into a workplace accident. The inspection followed an incident in which a 45-year-old man lost three fingers while he was operating a table saw, and his left hand got caught in it. Doctors reportedly managed to reattach his fingers, although the tip of one of his fingers had to be amputated.

Social Security Disability Insurance (SSDI) - Evaluating Claims

Whenever I meet with a potential Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) client, again prior to his or her hearing, I find it helpful to discuss how the Social Security Administration (SSA) evaluates claims for disability.  In terms of meeting the medical requirements, the SSA utilizes the same process for Social Security Disability Insurance (SSDI) claims as it does for SSI claims.  The SSA calls the process the five-step sequential evaluation.  The evaluation is done in order and if a decision to approve or deny can be made at any step then the evaluation stops.

1. Is the claimant working and performing substantial gainful activity? Substantial gainful activity is defined as work that involves significant and productive physical or mental duties and is done or intended to be done for pay or profit.  Work activity and actual pay must both be considered. Part-time work can classify as substantial gainful activity.  The regulations state that SSA should consider the nature of the work, how well it is performed, whether the work is done under special circumstances, and the time spent doing the work. 

2. Does the claimant have a severe medical impairment or combination thereof? An impairment or combination of impairments is severe if it limits the workers' ability to do basic work activities.  If the claimant receives regular medical treatment for a condition or several conditions, then this hurdle should be overcome.

3. Does the claimant's impairment(s) meet or equal a listed impairment? The Code of Federal Regulations contains a list of impairments that should the claimant meet or equal a listed impairment than he or she is automatically found disabled. The impairments are considered so severe per se that it is assumed the claimant is prevented from doing any substantial gainful activity.

4. Do the impairments prevent the claimant from performing his or her past relevant work? The regulations allow consideration of work performed within the past 15 years.  The work is defined as heavy, medium, light or sedentary, and skilled, semi-skilled, or unskilled and the Dictionary of Occupation Titles and the Selected Characteristics of Occupations from the Dictionary of Occupational Titles provides the SSA with this information about past relevant work.  This is also the first step that really looks at Residual Functional Capacity (RFC), which signifies what a claimant can do despite his or her physical and/or mental limitations.

5. Do the impairments prevent the claimant from performing any other work? At this step, the statute and regulations require the SSA to consider all "vocational factors," including age, education, and past work experience.  Additionally, the burden of proving that work is available shifts to SSA until jobs are shown by using the medical-vocational guidelines or "Grids" and then the burden shifts back to the claimant.

If work is identified that the claimant could perform considering age, education, past work experience, and impairments, then the claim will be denied. If no jobs exists, then he will be found disabled.

For FAQs about SSD and SSI, click here.

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