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Knoxville Personal Injury Law Blog

Social Security Disability - Hearing times and approval rates

     Unfortunately, the news for Social Security Disability and SSI claimants waiting for a hearing continues to worsen in terms of wait times for hearings and percentage of people awarded disability. Since September of 2014 when I lasted posted on the subject, the situation has not improved in terms of wait times or average approval rates.

     The national average processing time for claims before the Office of Disability Adjudication and Review is up to 405 days, which is up from 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% though this is down from 46% in December of 2013.

     In Tennessee, the average processing time has increased to 433 days, which is up from 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 actually up to 50% from 49% in July, but overall this down from 53% in December of 2013.

     In terms of averages for local offices, Middlesboro is up two days from July at 278 (up from 366 days in February) with 43% of cases being approved (down from 45% approved in May of 2014).

     The Kingsport ODAR is still the best performing Tennessee hearing office. The average time is down to 341 days, which is a decrease from 344 days in July and 346 days in May. However, these numbers are still above the average of 326 days in December of 2013. The Kingsport hearing office has an average of 58% case approved, which is a slight decrease (59%) since July.

     Chattanooga has increased to 472 days, which is up from 458 days in July of 2014, 429 in February, and 390 days in December. The Chattanooga ODAR is at 55% of cases approved, which is down from 56% in July of 2014.

     The Knoxville ODAR average processing time continues to increase. The latest numbers show an average of 497 days, which is up to 487 days in July, 474 in May, 457 days in February, and 406 days in December. The Knoxville average approval rate actual improved to 46% from 45% in July. However, these numbers are still below historical averages.

    

Car accidents, legal claims and an out-of-court settlement

Seriously injured victims of car accidents may choose to file a personal injury claim, while the families of deceased victims of accidents have the option to file a wrongful death claim. In order to establish if a claim can be filed in Tennessee, the victim and/or their family typically benefit by getting the right advice from the right people. Car accident claims are complex, and appropriate legal advice may help victims and their families to decide between litigation and an out-of-court settlement.   

While some cases are resolved by way of negotiations, others require litigation; in fact, litigation often smooth the way for a settlement. When an offer made by the insurance company is unfair, a trial may be the only option. The main aim of a plaintiff's personal injury attorney is to achieve the best results for each client. In negotiations with insurers, it is important that they realize the claimant is prepared for litigation if no reasonable offer is made. 

Social Security Disability - Cost-of-Living Adjustment (COLA)

     Social Security Disability and SSI recipients will see a 1.7% increase in benefits fdue to the cost-of-living adjustment (COLA) starting in January of 2015. Every year in October the government announces the COLA.  The COLA is based on the Consumer Price Index from the third quarter of the current year. The COLA affects many important aspects of the Social Security Disability and SSI program besides the actual amount of benefits paid to claimants.  In 2014, the COLA was 1.5%.  Although the annual adjustment is provided to protect the buying power of Social Security and SSI claimants, beneficiaries might actually see a big disparity between the benefit increases they receive and the increase in costs of needed items. 

Police officer involved in fatal car wreck in Tennessee

Police officers are only human, which means they are prone to make mistakes just like the rest of us. Unfortunately, this can often cause injury or even death. This may have been what happened recently when a police officer was involved in a fatal car wreck in Tennessee.

The incident happened when the police officer drove through an intersection in mid-October. Whether the police officer's lights were on when he drove through the intersection may become an important question. As of now, there is conflicting evidence with respect to that issue. The police car is supposed to have had a dash camera, although those usually do not begin recording until the police officer has activated his sirens and lights.

Zoo may face premises liability claim after jaguar bites child

It is not uncommon to see reports about people who suffered severe personal injury or worse after being attacked by animals. Most of the subsequent personal injury or premises liability lawsuits involve people who were bitten by dogs; however, a recent incident in another state involved jaguars. Tennessee residents may be interested to learn about a family's nightmare visit to the zoo.

It was reported that a 3-year-old boy fell through the barrier rails at the big-cat exhibit on a recent Friday morning. Nobody seemed to have witnessed what led to him falling, as the first alarm was made once the boy landed among the jaguars in the pen. The child's father apparently tried to distract the jaguars by slinging objects toward them. He says he managed to distract one cat, but a second jaguar had its mouth over the child's neck.

Social Security Disability - Severity of Mental Claims

     In Social Security Disability and SSI claims involving mental conditions, the claimant must show that through evidence that the conditions are severe and disabling (click here for information on evaluation of mental claims in general). In its regulations, the Social Security Administration describes various types of evidence it considers when determining these factors. The SSA looks for evidence from:

  1. Acceptable medical sources showing a medically determinable impairment, including doctors, psychologists, and hospitals.Whenever possible, and appropriate, medical source evidence should reflect the medical source's considerations of information from you and other concerned persons who are aware of your activities of daily living; social functioning; concentration, persistence, or pace; or episodes of decompensation. Also, in accordance with standard clinical practice, any medical source assessment of your mental functioning should take into account any sensory, motor, or communication abnormalities, as well as your cultural and ethnic background.
  2. Information from the individual. Individuals with mental impairments can often provide accurate descriptions of their limitations. The presence of a mental impairment does not automatically rule the claimant out as a reliable source of information about her own functional limitations.
  3. Other information. Other professional health care providers (e.g., psychiatric nurse, psychiatric social worker) can normally provide valuable functional information, which should be obtained when available and needed. If necessary, information should also be obtained from nonmedical sources, such as family members and others who know the claimant, to supplement the record of functioning in order to establish the consistency of the medical evidence and longitudinality of impairment severity.

The SSA also looks for:

  • Longitudinal history to determine the waxing and waning of symptoms;
  • Work attempts;
  • Mental Status Examinations;
  • Psychological Testing;
  • Intelligence Testing;
  • Personality Testing; and
  • Neuropsychological Testing.

 

Workers' Compensation - No Meaningful Return to Work Despite Resigning

     In Tennessee Workers' Compensation claims, whether the injured worker has made a "meaningful return to work" after the injury is often a crucial factor in determining how much disability the workers is entitled to.  When a worker voluntarily resigns, employers and insurance companies want to limit the recovery to 1 and 1/2 times the appropriate medical impairment rating.  However, as pointed out in the recent case of Kyle v. Volunteer Home Care of W. Tenn., Inc., 2014 Tenn. LEXIS 599, 2014 WL 3943101 (Tenn. Workers' Comp. Panel Aug. 7, 2014), a resignation does not always limit the employee's recovery.

     In Kyle, the employee sustained a work-related injury to her back working as a nursing assistant for Volunteer Home Care on October 28, 2009. Id. at 1-2. Ms. Kyle remained off work for several months receiving medical treatment. Id. at 2. In March of 2010, Ms. Kyle was allowed to return to work full-duty and she continued to work for two years until March of 2012 when she resigned. Id. Ms. Kyle testified that she resigned due to her persistent back pain and went to work for another home healthcare group where her work was less strenuous. Id. at 3-4. She further testified that her back pain is less frequent since resigning from Volunteer. Id at 4-5.

     The trial court found Ms. Kyle to be a credible witness and held that she did not have a meaningful return to work because she continued to have back pain that caused her to resign, she complained about that pain to her supervisor, and the employer took no action to address the complaints. Id. at 10. The employer appealed asserting Ms. Kyle voluntarily resigned after a meaningful return to work. Id.

     The Workers' Compensation Special Panel analyzed the case with the factors set out in Tryon:

(1) whether the injury rendered the employee unable to perform the job;

(2) whether the employer refused to accommodate work restrictions arising from the injury; and

(3) whether the injury caused too much pain to permit the continuation of the work.

     The Special Panel found the trial court determined Ms. Kyle continued to have back pain due to her injury, that she attempted to work for two years, but the work caused persistent pain. Id. at 11.  The Panel concluded that "we are unable to conclude that the evidence preponderates against the trial court's finding that Ms. Kyle did not have a meaningful return to employment." Id at 11-2.

     For more information on this topic, please click here.

Car accidents and personal injury claims -- What are the basics?

The laws and legal principles regarding personal injury claims apply in many different situations. Before, taking a look at the basics of personal injury claims resulting from car accidents, perhaps it is best to consider what personal injury law actually is. In Tennessee, as across the United States, personal injury law provides a legal remedy to an injured victim in a civil court for losses resulting from negligent or intentional conduct. The aim is to provide financial compensation for the harm suffered by the victim because of the negligent or willful actions of another party or parties. 

Personal injury law originates mainly from common law rules -- meaning that the laws were established by judges as they heard personal injury cases. While there are many similarities, personal injury laws generally differ from state to state. Claims can be filed for many different types of cases, such as injuries due to defective products, intentional acts to cause harm and even defamation. Our focus will be on claims arising from accidents.

Social Security Disability - New Rules on Video Hearings

     For several years now, the Social Security Administration has been trying to implement video teleconferencing (VTC) for Social Security Disability and SSI hearings. There are several proffered rationales including decreasing the disparity of wait and approval times between different hearing office. I personally do not like participating in VTC hearings and believe that they are not in the best interest of my claimants. Most of the time, I want the ALJ and claimant in the same room because I believe that is the best way for the ALJ to determine the credibility of the witness. I do not think it is a coincidence that the ALJs out of National Hearing Office out of Falls Church, Virginia where all hearings are conducted via VTC are at or below the national average for fully favorable decisions.

     In the past, if a Claimant received notice that her hearing was to be conducted via VTC, she could object at that time and almost always would be granted an in-person hearing. However, on June 25, 2014, the SSA published final rules for objecting to appearing a hearing via VTC. Now, prior to scheduling the hearing, the SSA will notify the claimant it may schedule the hearing by VTC and the claimant must object within 30 days of receiving the notice. If the claimant moves to another jurisdiction after objecting, the ALJ will decide how the claimant will appear, including by video teleconferencing. If a claimant moves who has not objected to VTC, then the hearing most likely will be conducted by the original ODAR. The SSA continues to be concerned that claimants or their representatives are using ODAR jurisdictional rules to forum show if a bad judge is assigned to the case.

     For information about lay testimony at hearings, click here.

Fatal car wreck in Tennessee leaves childhood friends devastated

A 68-year-old woman died in a car accident, just like her parents died many decades ago. The deceased and a friend were on their way to their 50 year high school reunion when the car wreck happened in Robertso County. Shortly after arriving in Tennessee, the two ladies were involved in a head-on collision.

The other vehicle was traveling in the wrong direction on a northbound highway when the collision happened. Both the deceased driver and her friend were airlifted from the accident scene to a medical center in the Nashville region. While the condition of the passenger was listed a stable, the 68-year-old woman was injured critically and died before her high school friends could reach her. Fortunately, her only son was there to hold her hand.

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