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Knoxville Personal Injury Law Blog

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.

Social Security Disability and Dictionary of Occupational Titles

     As discussed previously, Social Security Disability and SSI claims involve consideration of vocational factors. One of the main resources for vocational information for the Social Security Administration is the Dictionary of Occupational Titles or the DOT. The Dictionary of Occupational Titles (DOT) was developed in response to the demand of an expanding public employment service for standardized occupational information to support job placement activities. The U.S. Employment Service recognized this need in the mid-1930's, utilizing analysts located in numerous field offices throughout the country, to collect the information required.

     Highly trained occupational analysts went out and collect reliable data which was provided to job interviewers so they could systematically compare and match the specifications of employer job openings with the qualifications of applicants who were seeking jobs through its facilities.

     The first edition of the DOT was published in 1939. The first edition contained approximately 17,500 concise definitions presented alphabetically, by title, with a coding arrangement for occupational classification. Blocks of jobs were assigned 5- or 6-digit codes which placed them in one of 550 occupational groups and indicated whether the jobs were skilled, semi-skilled, or unskilled.

     The second edition DOT, issued in March 1949, combined material in the first edition with several supplements issued throughout the World War II period. The second economy including new occupations in the plastics, paper and pulp, and radio manufacturing industries.

     The third edition DOT, issued in 1965, eliminated the previous designation of a portion of the occupations as ''skilled, semi-skilled, or unskilled'' and substituted a classification system based on the nature of the work performed and the demands of such work activities upon the workers. These new indicators of work requirements included eight separate classification components: training time, aptitudes, interests, temperaments, physical demands, working conditions, work performed, and industry.

     The fourth edition of the DOT published in 1977, contained over 2,100 new occupational definitions and several thousand other definitions were substantially modified or combined with related definitions. In order to document these changes, approximately 75,000 on-site job analysis studies were conducted from 1965 to the mid-1970's. These studies, supplemented by information obtained through extensive contacts with professional and trade associations, reflected the restructuring of the economy at that time.

     Two supplements to the DOT have been released since the publication of the 1977 fourth edition DOT, one in 1982 and one in 1986. The 1982 supplement contained titles, codes, and definitions derived from Occupational Code Requests. The 1986 supplement continued this effort to publish new definitions as well as modify existing definitions consistent with new data collected. The 1986 supplement contained 840 occupational definitions; of these, 761 were not defined in the fourth edition.

Truck accident kills 18-year-old, injures infant

A tragic accident in which an 18-year-old girl died and her two passengers were injured happened on a recent Tuesday afternoon in August. The accident led to the closure of a Tennessee highway and the redirection of traffic through a nearby town. The truck accident, which was allegedly caused by reckless driving, happened just before 1:30 p.m.

The 18-year-old driver of a car was northbound, travelling in the left lane of the highway, when a Volvo semi-truck traveling south made a left turn striking the car. The girl was trapped in the car. Two passengers, a man and an infant, were injured. The extent of their injuries is not known.

Social Security Disability and Past Relevant Work

     As discussed recently, in deciding Social Security Disability or SSI claim, the Social Security Administration follows a sequential evaluation process. At step 4 of that process, the SSA looks to see if the person applying for disability can do her past relevant work. But what is past relevant work?

     The term "work experience" means skills and abilities acquired through work previously performed by the individual, which indicates the type of work the individual may be expected to perform.  The SSA considers work experience when it was done within the last 15 years, lasted long enough for you to learn to do it, and was at substantial gainful activity.

     Except for limited purposes, work performed 15 years or more prior to the time of adjudication of the claim (or 15 years or more prior to the date the title II disability insured status requirement was last met, if earlier) is ordinarily not considered relevant.  An individual who has worked only sporadically or for brief periods of time during the 15-year period, may be considered to have no relevant work experience.

Capacity to do past work may be indicative of the capacity to engage in SGA when that work experience constituted SGA and has current relevance considering duration and recency.

     The adjudicative criteria for determining whether a person has done "substantial" and "gainful" work activity are explained in sections 404.1571-404.1575 and 416.971-416.975 of the regulations.

     Duration refers to the length of time during which the person gained job experience. It should have been sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation.

     Recency refers to the time which has elapsed since the work was performed. A gradual change occurs in most jobs in our national economy so that after 15 years it is no long realistic to expect that skills (or proficiencies) and abilities acquired in these jobs continue to apply. The 15-year guide is intended to insure that remote work experience which could not reasonably be expected to be of current relevance is not applied.

Fatal car wreck kills 23-year-old male biker in Tennessee

An accident between a car and a motorcycle on a recent Saturday evening at the end of July ended in tragedy. The Tennessee car wreck happened in the early evening on Chapman Highway in Knoxville. Police reports indicate that the motorcycle was travelling in the left lane when the driver of an SUV made a U-turn in front of the motorcycle.

The motorcycle crashed into the SUV, seriously injuring the motorcycle driver. The 23-year-old man was taken to a medical center where he passed away due to the severity of his injuries. The motorcycle passenger had to be transported to a hospital in the area. Fortunately, she suffered non life-threatening injuries.

Social Security Disability 5-Step Sequential Evaluation

     When someone applies for Social Security Disability or SSI, the Social Security Administration follows a five-step sequential evaluation for determining eligibility.  This process is followed regardless of the level of decision (application, reconsideration, or a hearing).  This is the process used for adult claims. For information on the process for childhood SSI click here.

     The five steps are as follows:

1. Whether the claimant is engaging substantial gainful activity?

     The general rule is that a claimant cannot engage in full-time employment and be approved for SSD or SSI. Substantial gainful activity (SGA) is work that is both substantial and gainful. Each year the SSA determines a level of earnings considered SGA. A claimant should not automatically assume that if she is working and earning below SGA, that she will be safe in terms of the disability application. The decisionmaker could still decide later that the work is evidence of ability to perform certain categories of work and thus find that the claimant is not disabled further down the sequential process.

2. Whether the claimant has a medically determinable impairment that is "severe" or a combination of impairments that is "severe"?

     An impairment or combination of impairments is severe if it limits an individual's ability to perform basic work activities. Case law has generally required only minimal limitations of work activity in order for an impairment or combination thereof to be considered severe.  Very few claims are denied at this step of the sequential process.

3. Whether the claimant's impairment or combination of impairments meet or medically equals the criteria of an listed impairment?

     If a claimant's impairment(s) meets or equals a listed impairment in Appendix I, then the Social Security Administration will find that person disabled without considering age, education, and work experience.  Most claimants do not meet Step 3 of the process and are evaluated at the "Vocational Steps" described below.

4. Whether the claimant has the residual functional capacity to perform the requirements of his or her past relevant work?

     At this point in the process, the SSA must determine the claimant's residual functional capacity (RFC). A claimant's RFC is her ability to do physical and mental work actiivites on a sustained basis despite limitations from her impairments. The decision maker must consider all of the claimant's impairments, including those that are not severe.

     Again, the burden of proof is on the claimant to show he or she cannot perform his or her past relevant work. The reason must be due to exertional and/or nonexertional restrictions and limitations relating to the medically determinable impairments and not from being fired or inability to be hired.

     If the claimant can perform his or her past relevant work, then the inquiry stops and non-disability is determined. If the claimant cannot perform his or her past relevant work, then usually the claim moves on to Step 5.

5. Whether the claimant is able to do any other work considering her residual functional capacity, age, education, and work experience?

     If the claimant is able to do other work, she is not disabled. If the claimant is not able to do other work and meets the duration requirement (has lasted or expected to last at least one year), she is disabled. Although the claimant generally continues to have the burden of proving disability, a limited burden of going forward with the evidence shifts to the Social Security Administration. In order to support a finding that a claimant is not disabled at this step, the SSA has to provide evidence that demonstrates other work exists in significant numbers in the national economy that the claimant can do, given the residual functional capacity, age, education, and work experience of the claimant.

Car wreck leaves 2 injured in Tennessee

Two Harley-Davidson riders suffered injuries in an accident on a recent Saturday afternoon in the end of July. Tennessee Highway Patrol officials report that the accident happened just before 1:30 p.m. The car wreck involving a Lincoln Town Car and the two motorcycles happened along U.S. Highway 231.

At the time of the accident, the driver of the car was traveling in the slow lane. The two motorcyclists were passing the car when the driver, who is 82 years old, changed lanes and moved into the way of the one motorcyclist, aged 43. The unexpected lane change caused the motorcyclist to collide with the second bike.

Opinions of Treating Sources in Social Security Disability

     In Social Security Disability or SSI claims, the residual functional capacity ("RFC") (to learn more about exertional levels click here) of the Claimant is very often the determining factor in whether the person is found disabled. The SSA looks to what physicians, psychologists, or other medical sources have to say about the individual's limitations or abilities. Opinions from treating sources are particularly valuable.

     In Blakely v. Commissioner of Social Security, the Sixth Circuit Court of Appeals held that in assessing medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards. Blakely v. Commissioner of Social Security, 581 F.3d 399 (6th Cir. 2009). That standard, known as the Treating Physician Rule, requires the ALJ to give greater deference to the opinions of treating physicians than the opinions of non-treating physicians because:

These sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of the [claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations such as consultive examinations or brief hospitalizations.

Id. at 406. Even if the ALJ does not accord controlling weight to the treating physician, the ALJ must still determine how much weight is appropriate. Id. See also 20 C.F.R. §416.927, POMS DI 24515.002, DI 24515.003, SSR 96-2(p). If the Administrative Law Judge does not accord controlling weight to a treating physician, regulations require the Administrative Law Judge to always give good reasons in the determination or decision for weight given to the claimant's treating source opinion. Id. at 407; 20 C.F.R. 404.1527(d)(2).

     In determining the question of substantiality of evidence, the reports of physicians who have treated a patient over a period of time or who are consulted for purposes of treatment are given greater weight than are reports of physicians employed and paid by the government for the purpose of defending against a disability claim.  Rineholt v. Astrue, 617 F.Supp. 2d 733; U.S. Dist. LEXIS 33850 (2009) quoting Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).

Teens involved in bus and car wreck in Tennessee

A bus carrying a group of teenagers was involved in a multiple vehicle accident on a recent Thursday in July. The teenagers were on a visit to Tennessee to do missionary work. The mission trip was organized by Johnson University in Knoxville. Several people, including some of the visiting teenagers, were injured in the car wreck. Tragically, one person died.

The bus carrying the visitors apparently failed to stop at a traffic light and crashed into two vehicles. Officials report that it appears the bus could not stop at the red traffic light because of a mechanical problem. The 54-year-old male driver died at the scene of the accident.

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