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Knoxville Personal Injury Law Blog

Tennessee truck accident a real tragedy

One accident on a recent Thursday evening at the end of June in Tennessee has led to the death of six people. This is the most people killed in one single truck accident in the last ten years in the state. According to reports, a large truck ploughed into eight cars that were waiting at a road construction site on the highway.

All four occupants travelling in one of the cars were killed – two ladies, 31 and 50 years old, as well as two children. One of the children was eight years old, while the other was 10 or 11 years old. The other two victims were men, aged 36 and 37, each traveling in his own vehicle. Three of the deceased are from Tennessee.

Childhood Supplemental Security Income (SSI) - Growth Listing Changes

     Childhood SSI benefits are available to children from birth up to age eighteen. To qualify for childhood Supplemental Security Income (SSI) benefits, a child must meet the Social Security Administration's definition for disability for children and the parents must have low income and few resources.   Some time back, I wrote about qualifying for Supplemental Security Income (SSI) benefits for children due to growth impairment. These listings have now been removed by the Social Security Administration (SSA). 

     The SSA recently released a new listing for low birth weight and several other related rule changes. Listing 100.04 applies to children less than one (1) year old who are born at 32 weeks of gestation and weight less than 1250 grams. Babies weighing less than 1200 grams at birth meet a different part of the listing regardless of how many weeks of gestation they had. The SSA added 100.5 for failure to thrive for children under the age of three (3) and growth failure due to chronic respiratory disorder (103.06) and renal disease (106.08).  The rules also no longer rely on "linear growth" alone and instead realy on a child's weight-to-length ration or Body Mass Index.

New research: workplace injury higher for temporary staff

The number of temporary workers in the United States seems to be on the rise.  It is estimated that in 2013, 17 million people were employed in temporary positions across the U.S, including Tennessee. At the same time, current research shows that temporary staff has a much higher chance of suffering a workplace injury than permanent workers.

Employing workers in temporary positions involves complex arrangements and has led to a situation where a certain amount of uncertainty regarding complying with the standards for health and safety exists. Two studies, one done in 2008 and another in 2013, have both shown that the risk of severe workplace injury increases, and even doubles, when a person is employed in a temporary position. Injuries pointed out include broken bones, lacerations, puncture wounds and crushing accidents.

Social Security Disability Insurance (SSDI) - 10 Reasons Cases are Lost

Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) cases are typically won or lost on the strength of the medical evidence and the credibility of the claimant. However, if you are an attorney representing claimants, there are certain things you should always remember in preparing a case for hearing.

1. Failure to formulate a complete and detailed theory of the case, covering ALL FIVE steps of the sequential evaluation.

2. Failure to ask for the DOT codes for all jobs mentioned at the hearing, including past relevant work (PRW).

3. Failure to prove the specific functional limitations precluding past relevant work, and to verify which work is PRW by verifying recency, SGA-level earnings, and duration satisfying the SVP (specific vocational preparation) requirement.

4. Failure to get claimant testimony identifying functions necessary for past-relevant and other work the claimant can no longer do, and why.

5. Failure to get treating physician opinion(s) showing that the claimant cannot do functions required for past relevant and other work, and why.

6. Failure to find evidence that could give rise to negative inferences, and show why they do not disprove disability. This includes statements like "Needs work excuse" or "May be engaged in drug-seeking" in medical records, post-alleged onset date earnings, etc.

7. Failure to present hypothetical questions showing that each disabling limitation precludes work. If the claimant describes three symptoms which individually preclude work, each should be presented separately to the VE so that all must be rejected to deny.

8. Failure to get consultative examinations when required. The burden of proving disability is on the claimant not the ALJ.

9. Failure to get school records. There is no evidence with as high a cost/benefit ratio.

10. Failure to establish limitations on admitted activities, allowing the ALJ to compile an unchallenged laundry list of activities the claimant has done. When claimants say they read novels, find out how long it takes and whether they remember what they read. If they go fishing, find out how long and how often. Prepare for this by comparing the difference between their current life and their pre-impairment life.

Click to read the most recent update regarding wait times and percentage of cases approved at the hearing level for Social Security Disability Insurance (SSDI) and SSI cases.

18-wheeler crashes cause 10 percent of highway fatalities

In any accident between a car and a large truck, the occupants of the car have very little chance of escaping injury. It is quite understandable when one considers that a truck may weigh between 20 and 30 times more than a sedan. There are many different factors which may play a role in 18-wheeler crashes and contribute to serious injuries or fatalities on Tennessee roads.      

One of the most obvious factors contributing to the severity of truck accidents is the fact that trucks are so much higher off the grounds than cars. This means that a car can very easily slide underneath a truck in an accident, often with fatal consequences. By installing underride guards, these types of accidents can be eliminated.  Unfortunately, many underride guards are not strong enough to withstand the impact during an accident, even if the accidents happen at relatively low speeds.

Social Security Disability Insurance (SSDI) - Hearing Wait Times

On April 26, 2015, I posted the average processing times and approval rates for Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) claims for East Tennessee and Eastern Kentucky. Already, the numbers need to be updated. Please remember that these statistics are only for claims pending at the hearing level or Office of Disability Adjudication and Review. The claims at a hearing office have already been through the Application and Reconsideration steps (typically 6-12 months of waiting already).

Nationally:

•· Average processing time: 445 days (up from 432 in April)

•· 44% cases approved

Knoxville, Tennessee:

•· Average processing time: 550 days (up from 540)

•· 47% cases approved

Chattanooga, Tennessee:

•· Average processing time: 521 days

•· 57% cases approved

Kingsport, Tennessee:

•· Average processing time: 349 days (up from 339)

•· 57% cases approved

Nashville, Tennessee

•· Average processing time: 502 days

•· 46% cases approved

Franklin, Tennessee

•· Average processing time: 467 days

•· 52% cases approved

Middlesboro, Kentucky

•· Average processing time: 424 days (up from 410)

•· 45% cases approved

The hearing office staff work hard and understand the frustrations of the claimants and representatives, but they are hamstrung by the workload and budgetary restraints.

When can you claim for a workplace injury?

Employers have a legal duty to provide workers' compensation insurance in order to protect the interests of their workers. This insurance allows for Tennessee workers to claim for loss of income and other expenses after suffering a workplace injury. There are many types of injuries for which you can claim, and the general rule is that should the injury in any way be connected to the requirements of a job or conditions in the workplace, you should be able to make a claim for compensation.

The question is – when is an injury work related?  The most obvious answer to this question is that if the injury happened while you were doing your job, it is a work related injury. This means that in most cases it would be an injury you suffered at your place of employment, but it may be that you suffered the injury at another location related to work or while in a company vehicle. In such instances, the injury will still be considered a workplace injury as long as you were doing something linked to your job.  In fact, if you are injured during an official social function organized by your employer, your injury can be considered a workplace injury.

Social Security Disability Insurance (SSDI) - EAJA Fees

I recently blogged about Attorney Fees in Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) cases, but there are instances where attorneys can get paid for work performed before the federal court under the Equal Access to Justice Act (EAJA). To aid individuals have access to the Court systems to remedy unjust governmental action by paying attorney fees and costs, the Federal government enacted the Equal Access to Justice Act (EAJA). 5 U.S.C. § 504; 28 U.S.C. § 2412. To receive payment under EAJA, several criteria must be met:

(1) The individual must be an eligible party. Under the Administrative Procedure Act an individual is an eligible party if his or her net worth does not exceed 2 million dollars. 28 U.S.C. § 2412(d)(3).

(2) The individual must be the prevailing party. 27 U.S.C. § 2412(d)(1)(A).

(3) The government's position must not have been "substantially justified" of that no "special circumstances" exist that would make a fee award unjust. 28 U.S.C. § 2412(d)(1)(A). The burden of proof is on the government.

(4) There must be a final judgment. 28 U.S.C. § 2412(d)(2).

Once the above-referenced conditions have been met and an application has been filed, attorney's fees and costs can be awarded. EAJA provides for costs such as filing fees, copying costs, long-distance phone charges, postage, research, etc.

The fee application must be submitted by filing a motion or application with the court within thirty (30) days of the final judgment. Generally, fees are only awarded for work performed before the Court system, but limited fees can be awarded for work performed at the Administrative level following a remand by the Court. The Act provides that fees be limited to $125.00 per hour unless a special finding of increase in the cost of living or a special factor is made.

Fees under EAJA cannot be collected in combination for fees under SSA for the same work. The representative can make a Fee Petition for work done during the administrative stages and then a petition for EAJA fees for representation in the court system. If the administrative work was unusually large, then the percentage of past due benefits may not fully compensate the representative for the total amount of work performed. In that case, the attorney can collect under EAJA for the court work performed. There is some authority that the attorney should elect to be paid out of EAJA because that would ease the financial burden on an already cash strapped claimant.

Car wreck: 2 Dead, 1 injured, but who was driving the car?

Losing a loved one in a car accident is naturally a traumatic experience. This is even more so when there are a lot of unanswered questions. In some instances, the underlying circumstances of an accident only become evident after thorough investigation. Two people lost their lives and another was injured in a recent Tennessee car wreck. No other vehicles were involved, but the police are not sure which one of the occupants was driving the car at the time of the accident.

A preliminary crash report states that the accident happened on Interstate 40 and caused several hours of road closure. Police allege that an eastbound car with three occupants was speeding before the car left the roadway. It apparently smashed into a wall before crossing the Interstate again. It flipped over and came to a halt after crashing into another retaining wall.

Social Security Disability Insurance (SSDI) - Attorney Fees

I am often asked about how attorneys are paid on Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) (technically non-attorney representatives are paid the same way, but see about the "Dangers of Non-Attorney Reps in Social Security"). First, any fee charged or collected by a representative must be approved by the Social Security Administration. It is a federal crime otherwise!

Next, any attorneys can seek a fee under a "Fee Agreement" or a "Fee Petition." Most attorneys utilize the Fee Agreement method in most circumstances because it is the most convenient method. Under federal statute, if a Fee Agreement is utilized then the attorney can charge a fee that is the LESSER of 1) 25 percent of the past-due benefits resulting from Client's claim(s) or 2) the dollar amount established pursuant to 42 U.S.C. § 406(a)(2)(A), which is currently $6,000.00, but which may be increased from time to time by the Commissioner of Social Security. Past-due benefits are the total amount of money that Claimant (and beneficiary(ies)) become entitled to for SSDI and SSI benefits. At the time the case is approved, the Fee Agreement is usually approved and then attorney fee is supposed to be automatically withheld from past-due benefits and paid directly to the attorney.

Many attorneys utilize a two-tiered fee agreement, which means that the 25% up to $6,000 limit applies on all cases where a favorable decision is obtained at the administrative level up to and including an initial hearing before an ALJ. If subsequent appeals and hearings are necessary to obtain a favorable decision, including proceedings in Federal Court, Attorney may seek approval of a higher fee (often in the amount of 25% of past-due benefits with no specific dollar maximum) through a Fee Petition.

In a Fee Petition, the attorney sends in a form to the SSA requesting a certain fee and giving support for that fee such as an itemization of hours expended on the matter. A Fee Petition is also necessary where more than one attorney or representative has been involved in the case. For example, where a claimant fires one attorney and then hires another. The Fee Petition method takes a lot longer to get approved and paid.

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