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Knoxville Personal Injury Law Blog

Uninsured drivers: what happens in case of a car accident?

There is very little doubt that a motor vehicle accident is a traumatic experience, especially when resulting in serious injury or death. When a car accident occurs, victims or their families, depending on the case, may be entitled to file a claim for damages resulting from the accident. For this reason, most states have instituted legislation requiring drivers to either have insurance or proof of financial responsibility. Tennessee state law is no different.

Tennessee law requires all drivers to have insurance to cover liability or damages for which they may be responsible if involved in an accident. In addition to required minimums, they may elect to take out additional coverage for further protection. All drivers are also required to carry proof of their insurance, which they will be required to produce if involved in an accident resulting in injuries or fatalities, or damage to property in excess of $400.

Social Security Disability - GAF Scores

     In July of 2013, the SSA released guidance to adjudicators regarding the usefulness of GAF scores in Social Security Disability and SSI claims. With the publication of the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), GAF scores are no longer included and the question arises of what will the SSA do with GAF rating when determining disability? On July 22, 2013, the SSA released Administrative Message AM-13066:

We consider a GAF rating as opinion evidence. As with other opinion evidence, the extent o which an adjudicator can rely on the GAF rating as a measure of impairment severity and mental functioning depends on whether the GAF rating is consistent with other evidence, how familiar the rater is with the claimant, and the rater's expertise.

Factors that adjudicators must consider in evaluating GAF ratings include:

  • A GAF rating needs supporting evidence to be given much weight.
  • A GAF scores is never dispositive of impairment severity. It is not be given controlling weight if from a treating source unless it is well-supported and not inconsistent with the other evidence in the file.
  • A GAF score from a treating source is still medical opinion evidence, even if not given controlling weight, and "good reasons" must be provided in the decision if it is not given controlling weight.
  • A GAF rating cannot be used to establish the diagnostic criteria of "mental retardation" or "intellectual disability" because it lacks specificity, is not a standardized measure of intelligence and adaptive behavior, and may not reflect a claimant's functioning over time.
  • A GAF score does not equate to a particular mental RFC assessment. The GAF does not measure the ability to meet the mental demands of unskilled work and there is no correlation between GAF scores and the B criteria in the mental disorders listings.

     On October 14, 2014, the SSA issued a revised version of the AM. It provides that GAF ratings are considered as opinion evidence, but that adjudicators cannot draw reliable inferences from differences in GAF ratings assigned by different clinicians or from a single GAF rating. GAF ratings are not designed to predict outcome, but rather to help plan and measure the impact of treatment. GAF ratings need supporting details and cannot equate to a listing level impairment.

For more information on other mental impairments, click here.

Tennessee car wreck kills 2, leaves only 1 survivor

A Tennessee woman cannot remember anything about a multi-vehicle accident that left two people dead. The car wreck happened on an early December evening. The injured driver said that she picked up her 20-year-old boyfriend at a local fast food restaurant, and they were on their way to his family home. The injured 23-year-old woman only remembers waking up inside an ambulance while being transported to a hospital in the area.  

Tennessee authorities reported that the 64-year-old female driver of the other vehicle involved in the collision crossed into the lane in which the young driver and her boyfriend were traveling. The cars collided head on. The impact of the collision caused the car with the young driver and her boyfriend to crash into a third car.   

Social Security Disability - 10 Reasons Hearings or Appeals Lost

     Social Security Disability or SSI claimants and representatives often are faced with Unfavorable Decisions from ALJs or non-reverals or reviews by the Appeals Council.  Here are ten reasons that sometimes prevent a favorable outcome. 

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.

For more information on average hearing wait times and approval statistics, click here.

Workplace injury on farms are decreasing despite many hazards

Each year, a significant number of farmers and their workers are injured while going about their regular duties.  According to those who have been farming for many years, safety on farms was not really a priority a half century ago. Fortunately, a current focus on safe working conditions has led to a decrease in the number of people who suffer a workplace injury on farms across the United States. In Tennessee, an emphasis on making equipment safer and creating awareness of safety practices has contributed to fewer injuries to farmers.

It appears as if farmers entering the field are more safety conscious than a few decades ago, which can be ascribed to better safety education. Farmers and farm workers appear to be more aware of the dangers of their job. Accidents can happen very quickly when one is working with animals and machinery.

TN Workers' Compensation and the ADA

     While the employer has an incentive to return an employee back to work both under the workers' compensation statute and the ADA, it is generally understood that ADA compliance and/or action cannot be considered in determining the amount of vocational disability an injured worker has sustained. In Black vs. Liberty Mutual Ins., 4 S.W.3d 182 (Tenn. 1999), the trial court limited an employee's disability rating due to the probability of success in a concurrent ADA action. Id. at 183. Mr. Black suffered an injury to his left leg on September 22, 1995, while working for Roadway Express and after surgery and recovery was left with an eighteen percent (18%) impairment to his leg with a permanent restriction of needing a "cruise control on his truck." Id. Mr. Black made an attempt to return to work, but his restriction was not accommodated and he was not allowed to return to work. Id. at 184.

     The trial court found a thirty-five percent (35%) disability, but provided in the final judgment that Mr. Black "is limited by the probability that he will be successful in an Americans with Disabilities lawsuit presently pending" and directed that if Mr. Black was not successful in that claim that he could return and petition for an increase of his workers' compensation award. Id. Both parties obviously appealed the ruling.

     The Special Panel first held "[t]here is no legal basis for the trial court to reconsider the award based upon the result in the ADA suit" under both reconsideration statutes. Id.

     Next, Liberty Mutual argued the Court should consider the Americans with Disabilities Act (ADA) in assessing the amount of vocational disability an injured worker had sustained under the workers' compensation act. Id. Liberty Mutual also argued that the law presumes that employers have complied with the ADA. Rejecting this argument, the Special Panel responded by saying Liberty Mutual's argument "rings hollow where a separate suit has been filed against the employer to enforce the employee's rights under the ADA." Id. The Workers' Compensation panel ruled that application of the ADA is NOT to be considered in determining the amount of vocational disability an injured worker has sustained. Id. at 185. The Court states, that it "in this case, [the Court] must look to the usual elements considered in assessing disability." Id.

Obviously, an employer who accommodates an injured employee under the ADA and returns him or her to work will enjoy the return-to-work caps set forth in the workers' compensation act.

     For more information about TN Workers' Compensation, click here.

Workplace injury claims life in Tennessee

A middle-aged construction worker died on site on a recent Tuesday in mid November when his telehandler overturned. The man was busy offloading a delivery on site when the accident happened. An accident such as this leaves dependents with many questions. In Tennessee, workplace injury victims -- and their dependents in the case of fatalities -- may choose to file a workers' compensation or death benefit claim.

Big machinery, such as telehandlers and forklifts, requires certain precautions to ensure the safety of workers. People working with these machines are advised to remain inside the machine should it overturn, instead of jumping out. Wearing a seatbelt and leaning into the opposite direction of the impact point can also save lives. However, when an accident happens, such precautions are sometimes forgotten.

Social Security Disability - Benefit Offsets

     Some Social Security Disability benefits can affect amounts recovered under other federal, state, and/or private benefit policies. First, amounts received under Title II can affect a claimant's eligibility for SSI benefits under the federal statutes or can at least reduce those amounts to a smaller amount.

     Benefits paid under Title II of Social Security can also affect how much a claimant receives under a private or employer-provided long-term disability plan. The amount reduced on each plan is different due to the fact that they are separately written contracts, but usually there is a large offset for Social Security Disability benefits.

     As far as workers' compensation, some states reduce the amount of state workers' compensation benefits provided if the claimant has been deemed disabled under Social Security Disability. There is a calculation and offset that considers the amount received from Social Security and the amount to be received under the state workers' compensation system and it is therefore correspondingly lowered. Tennessee, however, does not allow workers' compensation insurance companies to benefit from a claimant's Social Security Disability.

     Tennessee does allow for language to be placed into workers' compensation settlements and judgments to protect from a corresponding offset of Social Security Disability benefits.

     The social theory behind workers' compensation and Social Security Disability are replacement of lost wages for injured workers. The Social Security Administration does not want to put a worker in a position where he earns more by not working than he would if he returned to the job pool. Therefore, the regulations contain a regulation that have a calculation that looks at total monthly benefit and reduces disability benefits if a certain threshold is met. This is commonly called the Social Security Offset and it usually applies to workers' compensation benefits paid periodically or considered to be paid periodically. A representative must first understand the monthly calculation and then understand how to lessen or alleviate the offset.

     Generally, an offset applies when the combined payment of Social Security Disability and workers compensation exceeds 80% of the workers' Average Current Earnings (ACE). 42 U.S.C. § 424(a); 20 C.F.R. § 404.408. ACE is determined by looking at three calculations used to approximate the claimant's usual earnings. 20 C.F.R. § 404.408(c)(3). The most advantageous to the claimant is used.

     The workers' compensation law of the State of Tennessee allows the reation of a fiction that aids the representative in maximizing the "total pie" of benefits to be received. T.C.A. § 50-6-207(6). The lump-sum or amortized award is spread out into monthly amounts for the rest of the claimant's projected life expectancy to lessen the offset by the SSA by getting it near or under the 80% monthly amount.

 

Parking lot car accidents may worsen in winter

Aside from slick roads due to cold weather, the winter season presents additional risks for Tennessee drivers. Nationwide, about 13 percent of all car accidents happen in parking lots. When consumers crowd into stores and shopping malls during the holiday shopping season, crowded parking lots and winter weather can combine to create particularly dangerous driving weather.

Even wrecks that may simply seem like a minor fender bender can cause substantial injury to a victim. A recent statistic has put the economic damages, which may include both lost wages and medical expenses, at roughly $10,500. For those who may be put out of work by an injury, this financial burden can be extreme.

Social Security Disability - Expediting Cases at Hearing Level

     As noted recently, the average processing times for Social Security Disability and SSI hearings continue to grow at hearing offices across the country. Claimants are getting increasingly desperate as the wait times increase. When I first meet with someone about SSD or SSI, I always try to be upfront and honest about the length of time involved. Invariably, the question is asked about "moving my case up" or expediting the case. The Social Security Administration will only expedite a case if it meets its "critical situation" requirements.

     The SSA recognizes five situations that warrant expedited processing. Those are:

  • The claimant is suffering from a terminal illness (TERI case);
  • 100% service-connected disabled veterans or the case involves a disability claim for any military service personnel injured October 1, 2001 or later regardless of how or where the disability occurred, whether in the United States or on foreign soil, provided that the individual was on active duty when the injury occurred;
  • The claimant's file is flagged as a Compassionate Allowance case. The list of qualifying impairments can be found at: http://www.socialsecurity.gov/compassionateallowances/.
  • The claimant is without, and is unable to obtain, food, medicine or shelter (Dire Need);
    • A dire need situation exists when a person has insufficient income or resources to meet an immediate threat to health or safety, such as the lack of food, clothing, shelter or medical care. The claimant must allege specific, immediate circumstances: (1) lack of food (i.e., without and unable to obtain food), (2) lack of medicine or medical care (e.g., the claimant expresses that he/she needs medicine/medical care but is without and unable to obtain it; the claimant does not have any health insurance, or indicates that access to necessary medical care is restricted because of lack of resources), and/or (3) lack of shelter (e.g., shut-off of utilities such that home is uninhabitable, homelessness, expiration of shelter stay, or imminent eviction or foreclosure with no means to remedy the situation or obtain shelter).
  • There is an indication that the claimant is suicidal or homicidal.

     Often clients ask, "Can my Congressperson call and get my hearing set?" Unfortunately, a congressional inquiry will not get a claim expedited unless one of the five critical situations noted above are present. Obviously, this makes sense because if it all it took to get a case expedited was a congressional inquiry then everyone would do it and we would be in the same situation. However, if one of the five critical situations is present and the SSA is not expediting the matter, then a congressional inquiry may be just the trick.

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