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Knoxville Personal Injury Law Blog

Social Security Disability Insurance (SSDI) - New Rules on Submission of Evidence

Attention claimants and representatives regarding Social Security Disability Insurance (SSDI) claims!  The SSA published the final rules on the submission of adverse evidence in disability claims.  The final rules amend both the regulations on "Evidence of your impairment" (20 C.F.R. §§ 404.1512 and 416.912 and the "Rules of Conduct and standards of responsibility for representatives" (20 C.F.R. §§ 404.1740 and 416.1540).

The new regulations require claimants to "inform us [SSA] about or submit all evidence known to you that relates to whether or not you are blind or disabled," with two exceptions: (1) material subject to the attorney-client privilege, and (2) the representative's "analysis of the claim," a narrow version of the attorney work product doctrine. Both favorable and unfavorable evidence must be submitted. While the duty to inform or submit evidence is on the claimant, the new rule imposes a specific duty on representatives to "act with reasonable promptness to help obtain the information or evidence that the claimant must submit under our regulations."

If the claimant or representative has evidence that is relevant and does not fall into any exceptions, it must be submitted. If the evidence is not in the claimant or representative's possession, the new regulations state that claimants could satisfy their obligation to inform SSA by providing the information on the disability and appeals forms required for the application or appeal. However, if the claimant becomes "aware of additional related evidence" at any point while the case is being determined, he or she must submit this new evidence as well.

The claimant and representative must inform SSA about "all evidence." Claimants and representatives must submit everything "relevant" they receive. However, claimants and representatives do not need to request "all evidence." SSA's response to comments reiterates the agency's duty to develop the file. SSA's response also states that "if claimants or their representatives request only the discharge summary from a hospital chart, we require them to submit only what they receive in response to that request in its entirety. We would not require them to request and pay for all of the other records from that hospitalization." SSA's response to comments also notes that medical records for an individual other than the claimant, sent accidentally by a treating source, are not considered relevant.

SSA's response to comments also address concerns that the new rule would deluge SSA with duplicative evidence. In 20 CFR 404.1512(c) and 416.1912(c), the new regulations provide two exceptions to the rule that "evidence from another source must be submitted in its entirety." First, evidence should not be submitted if an exact duplicate of the document is already in the file. Second, duplicative evidence need not be submitted if an SSA adjudicator directs the claimant or representative not to submit it.

In addition to requesting extant medical records, representatives often ask medical providers to write letters or complete questionnaires about a claimant's impairments. SSA's response to comments explain that "if a claimant's medical source sends his or her representative medical records or a written opinion about the claimant's medical condition, the representative cannot withhold those records or that opinion based on the work product doctrine adopted under these rules." But "representatives may still protect from disclosure their consultation with any medical source about the claimant's medical condition....if a representative takes notes during a discussion with a claimant's medical source, those notes are protected from disclosure as work product."

These new rules demonstrate why it is important to have competent, legal representation.

How often can a truck accident be blamed on greediness?

In the United States, freight is mainly transported by trucks. It comes as no surprise that trucks make up 4.7 percent of all passenger vehicles. Shockingly, 12.4 percent of all fatal crashes involve trucks. In a truck accident, the people in the other vehicle stand very little chance. Statistics document that the majority of fatalities in truck accidents are the people in a car involved in the accident, not the truck.

Federal legislators have attempted to make trucking safer by enforcing specific laws and rules. These laws are enforced across the country, including Tennessee.  The safety measures relate to the number of hours a truck driver is allowed to work before taking a rest period. However, surveys suggest that truck drivers often work longer than allowed by law and delay having necessary repairs done to their vehicles in order to increase their income.  

Supplemental Security Income (SSI) - Amputations and childhood benefits

Supplemental Security Income (SSI) may be available for a child who has suffered from a serious injury requiring an amputation. As part of continuing series on childhood SSI or disability involving the musculoskeletal systems, I am going to focus on the listing for amputations this week.

Childhood SSI claims are evaluated differently than adult claims for Social Security Disability or SSI. The requirements are actually more stringent. IThe SSA whether the child has a condition or combination of conditions that meets or medically equals the criteria of a listing, or that functionally equals the listings. If so, then he presumed to be disabled.

For a child with a serious amputation injury, the SSA looks first at the listing.

101.05 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 101.00B2b, 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 101.00B2b;

or

D. Hemipelvectomy or hip disarticulation.

If the Listing cannot be proven, the claim can still be won if the child's condition(s) functionally equals the listings in terms of six domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well-being. In making this assessment, one must compare how appropriately, effectively and independently the claimant performs activities compared to the performance of other children of the same age who do not have impairments. To functionally equal the listings, the claimant's impairment or combination of impairments must result in "marked" limitations in two domains of functioning or an "extreme" limitation in one domain.

 

Fatal car wreck also leaves Good Samaritan injured

A tragic accident left one person dead and a good Samaritan injured. The Tennessee car wreck happened on a recent Thursday night on March 12 at approximately 9:45 p.m. The circumstances surrounding the accident can only be described as tragic.

According to reports, the 29-year-old deceased victim was experiencing car trouble and pulled off the road. A 23-year-old driver stopped to assist. Both the drivers were apparently outside their cars near the road when a vehicle operated by a 20-year-old smashed into them from behind.

Supplemental Security Income (SSI) - Fractures of Femur or Tibia

Supplemental Security Income (SSI) may be available for children suffering from serious orthopedic conditions involving the femur, tibia, pelvis, or the tarsal bones. I recently discussed the requirements for spinal disorders.

Childhood SSI claims are evaluated differently than adult claims for Social Security Disability or SSI. The requirements are actually more stringent. The SSA determines whether the child has an impairment or combination of impairments that meets or medically equals the criteria of a listing, or that functionally equals the listings. 

101.06 Fracture of the femur, tibia, pelvis, or one or more of the tarsal bones. With:

A. Solid union not evident on appropriate medically acceptable imaging, and not clinically solid;

and

B. Inability to ambulate effectively, as defined in 101.00B2b, and return to effective ambulation did not occur or is not expected to occur within 12 months of onset.

Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment that interferes very seriously with the child'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. (3) How we assess inability to ambulate effectively for older children. Older children, who would be expected to be able to walk when compared to other children the same age who do not have impairments, must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out age-appropriate activities. They must have the ability to travel age-appropriately without extraordinary assistance to and from school or a place of employment.

If the Listing cannot be proven, the claim can still be won if an impairment or combination of impairments functionally equals the listings and one must assess the claimant's functioning in terms of six domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well-being.

Workers' compensation claim possibility after death of miner

The investigation conducted by federal authorities into the death of a miner in Oct. 2014 has been completed. The authorities found that the miner's death can be attributed to the fact that the foreman on-site allowed the miner to enter a part of the mine that was unsafe. In tragic cases like these, the family of the deceased has the choice to file a workers' compensation claim.

Tennessee mine workers, like those across the country, work in very dangerous surroundings. Any disregard for safety measures by management and senior employees increases the danger exponentially. In this accident, the foreman should have followed the required rules and kept the mine worker safe. A foreman on a mining site has the duty to ensure the safety of the workers.

Supplemental Security Income (SSI) - Childhood SSI and the Spine

Supplemental Security Income (SSI) may be available for children suffering from serious spinal conditions.  Childhood SSI claims are evaluated differently than adult claims for Social Security Disability or SSI. The requirements are actually more stringent. The SSA determines whether the child has an impairment or combination of impairments that meets or medically equals the criteria of a listing, or that functionally equals the listings. If so, the child is presumed to be disabled. There are no vocational steps as with an adult disability claim. Please click here for more information on Childhood SSI claims.

101.04 Disorders of the spine (e.g., lysosomal disorders, metabolic disorders, vertebral osteomyelitis, vertebral fracture, achondroplasia) resulting in compromise of a nerve root (including the cauda equina) or the spinal cord, with evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).

If the Listing cannot be proven, the claim can still be won if an impairment or combination of impairments functionally equals the listings and one must assess the claimant's functioning in terms of six domains: (1) acquiring and using information; (2) attending and completing tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; (5) caring for yourself; and (6) health and physical well-being. In making this assessment, one must compare how appropriately, effectively and independently the claimant performs activities compared to the performance of other children of the same age who do not have impairments. To functionally equal the listings, the claimant's impairment or combination of impairments must result in "marked" limitations in two domains of functioning or an "extreme" limitation in one domain.

 

The reality of drunk driving's devastation and pain

Drunk driving is a reality on roads across the nation. Although a lot of progress has been made to reduce drunk driving fatalities, it is still estimated that in 2013 nearly 7000 deaths could have been prevented if drivers with illegal blood alcohol levels were kept off the roads. All states, including Tennessee, have passed laws that make driving with a blood alcohol content (BAC) of 0.08 percent or greater illegal in an attempt to eliminate the devastation and pain caused by DUI accidents.

Research has proved that when a person has a BAC of 0.05 percent his or her chances of being involved in a fatal crash increase significantly. When BAC levels are 0.08 percent, this chance increases exponentially. Statistics show that approximately 33 percent of drivers who were fatally injured in accidents in 2013 had BACs of 0.08 percent or greater. The chance of fatal injury increases to 25 percent for drivers with BACs of 0.15 percent or greater, while 17 percent of fatally injured motorcycle drivers had BACs of 0.15 percent or greater.

Social Security Disability Insurance (SSDI) - Hearing Wait Times and Approval Rates

Periodically, I report on the average processing times and approval rates for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) cases at the hearing level. I last blogged about this issue in December.

Predictably and unfortunately the bad news continues for persons seeking disability benefits. The national average processing time for claims before the Office of Disability Adjudication and Review has risen to 432 days, which is up from 421 in December 2014, 397 days in July, 390 days in May of 2014, and up from 372 in December of 2013. Nationally, the average approval rate has remained at 44% since July though this is down from 46% in December of 2013.

In Tennessee, the average processing time has increased to 462 days, which is an increase from 455 days in December 2014, 433 days in October, 427 days in July, 419 in May of 2014, 407 days in February, and 388 days in December of 2013. The statewide average of cases approved is back down to 51%, which is down from 53% in December of 2013.

In terms of averages for local offices, the Middlesboro, KY office has jumped up to 410 days, which is up from 388 days in December 2014 and 378 days in July 2014. The average percentage of cases approved has dropped to 43% down from 44% in July 2014 and down from 45% approved in May of 2014.

The Kingsport ODAR is still the best performing Tennessee hearing office. The average processing time increased slight to 339 from 335 days in December 2014, which is a decrease from 344 days in July and 346 days in May. However, these numbers are still above the historic average for this top performing hearing office. The Kingsport hearing office has an average of 57% cases approved, which is down from 58% in October 2014 and 59% in July of 2014.

The Chattanooga hearing office continues to increase with an average processing time now of 519 days. This is up from 503 days in December 2014, days in October, 458 days in July of 2014, 429 in February, and 390 days in December of 2013. However, the Chattanooga ODAR currently has the highest average of cases approved at 60%. This is up from 58% in December 2014, 55% in October and 56% in July of 2014.

The Knoxville ODAR average processing time has ballooned! It is now at 540 days! This is up from 537 days in December 2014, 497 days in October 2014, 487 days in July, 474 in May, 457 days in February, and 406 days in December of 2013. The Knoxville average approval rate did actually go up to 49% cases approved. This is up from 44% in December 2014, and 46% in October. These numbers are historically low for Knoxville. In December of 2013, the Knoxville ODAR was at 53%. Unfortunately, these numbers confirm that on a whole the average processing times are going up everywhere while the percentage of case approved by Administrative Law Judges continues to decline.

 

Good Samaritans killed while helping at car wreck

A Tennessee family is still trying to come to terms with the tragic event in which a mother and her son was killed by a semi-truck on a recent Monday evening in early February. Authorities have released the video footage taken by the dash cam of the first response vehicle to arrive at the scene. They are hopeful that the video footage of the car wreck will raise awareness for the need for witnesses to help with the investigation.

It is reported that the mother and son was returning home after shopping for groceries, when they stopped at an accident scene. They were trying to help the passengers of an SUV, which had rolled after slipping on ice. While providing assistance, they were struck by the semi-truck. The 10-year-old boy died at the accident scene, while his mother passed away not long afterward at a hospital in the region.

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