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Knoxville Personal Injury Law Blog

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.

Railroad Retirement Board Disability

     In addition to SSD claims, our office handles Railroad Retirement Board claims.  Injured or disabled employees of a railroad can apply to the Railroad Retirement Board (RRB) for disability. The RRB administers the program and some of the benefits and procedures mirror the Social Security Administration's disability program and benefits. For railroad employees there are several benefits that the worker or his dependents should look at in terms of eligibility.

A DISABILITY ANNUITY can be paid for:

Total disability, at any age, if an employee is permanently disabled for all regular work and has at least 10 years (120 months) of creditable railroad service. Employees with 5-9 years (60-119 months) of creditable railroad service, if at least 5 years were performed after 1995, may qualify for tier I only before retirement age on the basis of total disability if they also meet certain social security earnings requirements. An age reduced tier II amount would be payable at age 62.

Occupational disability, at age 60, if an employee has at least 10 years of railroad service or at any age if the employee has at least 20 years (240 months) of service, when the employee is permanently disabled for his or her regular railroad occupation. A "current connection" with the railroad industry is also required for an annuity based on occupational, rather than total, disability.

A 5-month waiting period beginning with the month after the month of the onset of disability is required before any disability annuity payments can begin.

An employee can be in compensated service while filing a disability annuity application as long as the compensated service is not active service and terminates within 90 days from the date of filing. However, in order for a supplemental annuity to be paid by the RRB, or for an eligible spouse to begin receiving annuity payments, a disabled annuitant under full retirement age must relinquish employment rights.

Lack of driver education in Tennessee may lead to car accidents

The number of automobile accidents on Tennessee roads where teenage drivers are involved may be a matter of concern to many road users. When comparing the requirements for obtaining a driver's license in Tennessee to that of a neighboring state, it may leave a person wondering whether this may be the cause of many car accidents in Tennessee. While young drivers across the state line are required to complete a program of driver education, Tennessee teenagers can obtain a driver's license without attending even one class of related education.

At age 15, Tennessee students who pass a written test may obtain a learner's permit. To qualify for a written and practical test for a driver's license, the applicant's parents must certify that their child has spent no less than 50 hours driving in the company of a licensed driver who is at least 21 years old. These hours must include 10 hours of driving at night. After holding the learner's permit for nine months, they are free to apply for a driver's license. The lack of experience and knowledge while operating a motor vehicle may have dire consequences for both the driver and any victims of car accidents.

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.

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