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Knoxville Personal Injury Law Blog

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.

Dangerous working conditions often lead to a workplace injury

Utility workers in Tennessee, and all across the country, are regularly required to work in all weather conditions, high above the ground and on high voltage equipment. When you consider these working conditions, it is easy to see why this group of workers is more likely than average to suffer a workplace injury, and even why this industry has a relatively high fatality rate. Because of the risks they face, utility workers need to be given special safety considerations by their employers.

When a job exposes you to many risks, understanding the dangers you face and knowing how to protect yourself are of utmost importance. If you have a job with many safety risks, as utility field workers do, knowledge of the safety practices and personal protective equipment (PPE) as prescribed by the Occupational Safety and Health Administration (OSHA) can make the difference between life and death. Simply being aware of dangers decreases the chance of suffering a workplace injury.

Social Security Disability - More COLA Information

     As noted in a recent post, Social Security Disability and SSI recipients will see a 1.7% increase in benefits for the cost-of-living adjustment (COLA) starting in January of 2015. The COLA is based on the Consumer Price Index from the third quarter of the current year.

     However, the COLA affects many important aspects of the Social Security Disability and SSI program besides the actual amount of benefits paid to claimants. For instance, the amount of earnings necessary to earn a quarter of coverage (QC) increases from $1,200.00 to $1,220.00 and the tax exempt amount of retirement earnings also adjust.

     Other important issues/numbers are:

Substantial Gainful Activity (SGA):

  • Non-blind: 2014: $1,070.00 2015: $1,090.00
  • Blind: 2014: $1,80.00 2015: $1,820.00

Trial Work Period (TWP)

  • 2014: $770.00 per month 2015: $780.00 per month

SSI:

  • Individual: 2014: $721.00 per month 2015: $733.00 per month
  • Couple: 2014: $1,082.00 per month 2014: $1,100.00 per month

A proud father loses his son due to a workplace injury

A father is left devastated by the passing of his son at their joint workplace. A young graduate of only 21 years was working with his dad on the renovation of a Tennessee building when the accident happened. OSHA, the governmental body in charge of investigating a workplace injury, is currently investigating the accident and should complete its incident reports by the end of November.  

It is reported that the first time someone realized things were amiss was when some of the people working on the site found the deceased's car late in the day. At that point, it was realized that nobody could recall seeing the young man since much earlier. This led to a search for the missing young worker.

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.

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