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Knoxville Personal Injury Law Blog

Proving Limitations in a Social Security Disability Claim

     In Social Security Disability and SSI claims, the main focus almost always is proving the Claimant's residual functional capacity (RFC) is such that he or she qualifies for disability under the Social Security Administration's regulations.  Last week, I discussed showing limitations through lay testimony and this week the focus will be on proving a claimant's RFC through medical or other evidence. 

     Treating or examining physicians are generally afforded greater weight, but it depends on certain factors. It is useful to get information about the physicians' specializations and qualifications. 

     Consider sending RFC assessments or source statements to treating physicians. Watch out for vague or undefined terms such as prolonged, long, etc. If utilizing an assessment, use terms familiar to the SSA. If you cannot obtain an assessment, see if the claimant's physicians will at least write a letter describing the impairments in relation to engaging in full-time employment. PCPs are usually most willing to do this. A short paragraph of two from a treating physician can lend a lot of credibility to the testimony of the claimant. Keep in mind SSR 96-5p provides that medical statements stating that a claimant is disabled, unable to work, permanently and totally disabled, or unable to return to past work are administrative findings reserved to the Commissioner. At the very least, if the claimant uses an assistive device such as a cane, have the provider write on a prescription pad that the device is medically necessary.

     If a physician refuses to complete an assessment because he "is not a disability doctor", ask the physician if he would adopt the findings of an FCE and then consider sending the client to an FCE with a trusted physical therapist.

     Was there a workers' compensation case?  If so, there will be medical and vocational evidence such as out-of-work slips, IME's, vocational evaluations, depositions detailing restrictions, and/or functional capacity evaluations (FCE's).

     If the worker is a veteran and has been to the VA for medical treatment, be sure to order all of those medical records. Additionally, if VA has granted service-connected disability, get the rating decision.

     Is the claimant receiving long-term disability?  Physicians and employers will have to fill out restriction forms in order for an employee to qualify for long-term disability.

     A last option would be an IME paid for by the claimant.

 

Legislation regulating dog bites and resulting injuries

Dogs are known as man's best friend and provide companionship to many. Unfortunately, dog bites also occur quite frequently. The state of Tennessee has specific laws dealing with the responsibilities of owners of dogs, as well as the rights of victims suffering injuries resulting from a dog attack.

According to Tennessee law, a person is considered the owner of a dog when the dog mainly lives with the person or is mostly kept or controlled by the individual. It is considered an offense when an uncontrolled dog enters the premises of another person or a public area and this results in injury. Public areas include roads and highways. There are exceptions to the aforementioned, which relate mostly to working and hunting dogs, as well as the protection of the owner and/or his or her property by the dog.

Social Security Disability Hearings and Lay Testimony

     In my Social Security Disability and SSI claims, the question often comes up whether it is a good idea to have witnesses other than the claimant testify at the hearing.  This is also known as "lay testimony."  Most ALJs frown on bringing a load of lay witnesses if the testimony will be duplicative. However, sometimes it is necessary due to the condition or personality of the claimant. In childhood cases, you always will have at least one parent or caregiver testify. In cases of severe mental impairment, a spouse or parent is often a very objective and helpful witness. Sometimes you might have a claimant that just is not willing due to pride or stubbornness to admit his or her true limitations and again lay witnesses should fill the role of the testimony described above to provide evidence of functional limitations.

M     ore often than not, I suggest getting "Letters of Recommendation" from those willing and able to provide information regarding the claimant's impairment. "Letters of Recommendation" are notes or letters from former employers, supervisors, co-workers, etc. describing the claimant's impairments, former ability to work, current inability to work, etc.

     If the claimant left his employment on good terms, request a supporting letter from a manager, supervisor, or someone with the former employer. At a minimum, try to get a job description and order the personnel file. A personnel file showing a hardworking, long-term employee goes a long way in proving the credibility of the claimant. Again, the key is to make sure that any lay testimony dovetails with what is in the medical records or vocational evidence.  A discussion about the importance of treatint source opinions can be found here.

Information is crucial when filing a claim after a truck accident

After any accident, there are many legal and procedural requirements that can make filing a claim for injuries suffered a difficult process. When the vehicle involved is a truck, the case can become even more complicated. In Tennessee, the victim of a truck accident may find that not only may it be necessary to consider federal regulations, but if they do not act quickly, the company owning the truck may be working on a defense within hours after the accident.

A local firm like ours, that is driven to achieve the best results for each of our clients, is in the most ideal position to explain such a process to you. Through our experience, we have become knowledgeable about the legislation governing truck accidents. We have also learned to investigate accidents and look for information from a number of sources.

Update on Social Security Disability Hearing Stats

     As noted in the past, Social Security Disability and SSI claimants continue to see a worsening trend in terms of hearing office processing or wait times and percentage of claims being approved at the hearing level. This trend has steadily continued over the last few years and has worsened since just July of 2014.

     The national average processing time for claims before the Office of Disability Adjudication and Review is up to 402 day, which is an increase of 5 days since July, 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 430 days, which is an increase of 3 days from July of 2014, and up from 419 in May, 407 days in February, and 388 days in December of 2013. Currently, 50% of cases are being approved, which is a drop from 53% in December of 2013.

I     n terms of averages for local hearing offices:

Middlesboro is up to 378 days, which is an increase of 1 day since July, but up from 366 days in February of 2014. The approval rate has dropped to 42%, which is down 1% since July of 2014 and down from 45% in February of 2014.

The Kingsport ODAR is still the fastest in terms of processing time with an average of 341 days, which is actually a DECREASE from 344 days in July, 346 days in May, but still higher than the 326 day processing time in December of 2013. The Kingsport hearing office is also holding steady at 59% of cases being approved.

The Chattanooga ODAR processing times have increased to 467 days, up from 458 days in July, 442 days in May, 429 in February, and 390 days in December. The Chattanooga ODAR is again at 56% of cases approved.

The Knoxville ODAR times are up to 493 days, which is an increase from 487 days in July, 474 in May, 457 days in February, and 406 days in December. Since July, the Knoxville hearing office has stayed steady at 45% of cases being approved though this is still a historic low. In May of 2014, 48% of claims were approved and that was down from 53% in December.

     Unfortunately, these numbers confirm that on a whole the average processing times are going up everywhere while the percentage of case approved by ALJs continues to decline.

     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.

Does the kind of animal influence claims due to bite injuries?

When it comes to injuries suffered due to animal bites, many questions come to mind. One question is if the animal type influences the victim’s right to claim for injuries suffered. Animal bite victims in Tennessee considering filing claims after suffering bite injuries may find that the animal type may play a role.

Dog bites are probably the most common cause of animal bite injuries and most states in the U.S. have enacted certain laws relating to personal injury claims due to dog bites. Some states hold dog owners strictly liable for dog bite injuries. In this instance, regardless of who is at fault, the owner will be held responsible. In other states, the injured victim must prove that the owner knew, or could be expected to have known, that the dog was dangerous and could possibly bite someone.

Childhood SSI Benefits for Sickle Cell Disease

     A child may qualify for Childhood SSI disability benefits due to Sickle Cell Anemia or Sickle Cell Disease. Childhood SSI claims are evaluated differently than adult claims for Social Security Disability or SSI. The requirements are actually more stringent. If the child is not working and has "severe" impairments, the Social Security Administration determines whether the child has an impairment or combination of impairments that meets or equals the criteria of a listing, or that functionally equals the listings. If the child has an impairment or combination of impairments that meets, medically equals or functionally equals the listings, and it has lasted or is expected to last for a continuous period of at least 12 months, he is presumed to be disabled. 

    The Childhood Listing for Sickle Cell Disease reads as follows:

107.05 Sickle cell disease. With:

A. Recent, recurrent severe vaso-occlusive crises (musculoskeletal, vertebral, abdominal); or

B. A major visceral complication in the 12 months prior to application; or

C. A hyperhemolytic or aplastic crisis within 12 months prior to application; or

D. Chronic, severe anemia with persistence of hermatocrit of 26 percent or less; or

E. Congestive heart failure, cerebrovascular damage, or emotional disorder as described under the criteria in 104.02, 111.00ff, or 112.00ff.

     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.

Whether it is winning through the Listing or functionally equaling a Listing, the claimant must prove the case through supporting documentation. Commonly, medical records, medical opinions, teacher questionnaires, letters from caregivers are all used to support a Childhood SSI claim.

Lawsuit follows truck accident that allegedly killed young mother

Following up on our blog post about a tragic truck accident on Aug. 14 (Truck accident kills 18-year-old, injures infant), a federal lawsuit was recently filed by the mother of the 18-year-old woman who lost her life in the Tennessee accident. The driver of the tractor-trailer, along with the owner of the vehicle were named as defendants in the lawsuit. The plaintiff accuses the defendants of negligence in performing a left-hand turn that was illegal, and thereby causing the truck accident that led to the death of the young mother of an infant.

The accident report prepared by the Tennessee Highway Patrol stated that the deceased woman was northbound on 11W when the defending driver of the big rig allegedly made an illegal turn that caused the woman’s car to crash into the truck. While the truck driver did not suffer injuries, the driver of the car suffered severe injuries and subsequently succumbed to those injuries. In addition, her infant daughter and another passenger had to be rushed to hospitals by ambulance and helicopter for treatment of their injuries.

Tragic Tennessee car wreck leaves many students mourning

An accident on a recent Saturday afternoon in August has resulted in the death of an army veteran and a sophomore. The driver of the car, a 29-year-old army veteran, passed away on the way to the hospital, not long after the car wreck. The Tennessee sophomore, a 14-year-old boy, was a passenger in the vehicle. He suffered serious injuries and passed away on the Monday after the accident at the Vanderbilt University Medical Center.

The accident happened shortly after 11 a.m. According to authorities, the driver lost control of his vehicle and consequently left the road. The vehicle crashed into a tree and then rolled over.

Tennessee Workers' Compensation - Voluntary Retirement Related to Injury not 1.5 Cap

The full Tennessee Supreme Court recently reversed a Panel decision thus reinstating the trial court's award of 90% permanent partial disability finding that the voluntary retirement was related to the work injuries and the employee acted reasonably.

In Yang v. Nissan N. Am., Inc., 2014 Tenn. LEXIS 607, 2014 WL 3893058 (Tenn. Aug. 11, 2014), the Employee began working for Nissan in February of 2004. On January 16, 2008, the Employee suffered a job-related injury to his left shoulder requiring medical treatment and light duty. On March 4, 2008, the Employee suffered an injury to his right shoulder, but continued his light-duty work until March 12, 2008 when he thereafter underwent surgery on his left shoulder and subsequently his right shoulder. On August 1, 2008, the Employer offered an early retirement or buyout to all of its manufacturing technicians. On August 26, 2008, the Employee resigned his employment.

At trial, the parties stipulated many facts, including that the Employee sustained a 12% impairment to the body as a whole as a result of his injuries. The extent of the Employee's vocational disability were in dispute.

The trial court found that, prior to his bilateral shoulder injuries, the Employee "enjoyed an excellent relationship with his employer," had an "outstanding work record," and "was a good and excellent employee." The trial court ruled that the Employee did not have a meaningful return to work at any point in time following the left shoulder surgery and, therefore, his permanent partial disability benefits were not capped at one and one-half times his impairment rating.

The Supreme Court agreed with the Panel that if an employee retires, resigns, or declines an offer to return to work for either personal or other reasons that are not related to his workplace injury, the employee has had a meaningful return to work and is subject to the one-and-one-half-times cap. This fact-intensive determination, however, is typically best left to the trial judge who has had the opportunity to observe the witnesses, determine their credibility, and assess "the reasonableness of the employer in attempting to return the employee to work and the reasonableness of the employee in failing to either return to or remain at work." Tryon, 254 S.W.3d at 328. Here, the trial court accredited the explanation of the Employee as to why he accepted the VTP and found his decision to be reasonable and related to his injuries. 

As to the determination of the Panel that the Employee did not act reasonably because he accepted the VTP while undergoing treatment and prior to reaching maximum medical improvement, the Supreme Court found this analysis to be misplaced citing Lay v. Scott Cnty. Sheriff's Dep't, 109 S.W.3d 293, 298-99 (Tenn. 2003) where the court declined to hold that "whether a 'meaningful return to work' occurred must be determined after the employee reaches maximum medical improvement." Nothing in T.C.A. § 50-6-241 "requires that the question of whether an employee has had a meaningful return to work with his or her pre-injury employer be evaluated only after the employee has completed treatment and has reached maximum medical improvement."

     If you need more information about Workers' Compensation, such as issues dealing with pre-existing conditions, check out other entries in our blog or our website.

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