There are many types of injuries and illnesses that are considered to be permanent disabilities. Among these is a traumatic brain injury, or TBI. No matter how the injury occurred, a TBI can have an impact on all the different aspects of your life. It can leave you unable to work, and can also harm your ability to handle the tasks of daily living and enjoy your personal life. Understanding what kinds of symptoms a TBI has and the benefits you can get to help you becomes very important when living with this kind of disability.
A Tennessee man was pinned under his vehicle after an accident with another vehicle. Now, his fiance is searching for the people who rushed to help free him in order to express her gratitude. The car wreck happened at approximately 3.30 p.m. on a recent Monday afternoon in August.
The driver of the second vehicle was a 16-year-old boy returning home from school. According to the traffic authorities, the 16-year-old driver was trying to turn into the driveway of his parent's home when the accident happened. Traffic officials say that the young driver did not yield for the oncoming vehicle as he should have.
One often reads about the dangers of distracted driving and driving under the influence, but seldom of another lesser known danger -- drowsy driving. A driver who has had too little sleep is a danger on the road. Many Tennessee readers likely recall the truck accident in which comedian Tracy Morgan was seriously injured. Lack of sleep on the part of the driver was ruled the root cause of the accident.
According to a state safety report, driver error due to lack of sleep causes the deaths of thousands of people annually, resulting in costs exceeding $100 billion. If the problem is so large, why is so little attention paid to it? For one, proving driver fatigue is no easy matter, even though it is a common occurrence which most people admit they have experienced at some time or another.
"Disability" can mean different things to different people. However, the Social Security Administration (SSA) follows strict guidelines outlining what it means to be disabled with regard to the receipt of benefit payments. Additionally, the SSA assumes that disabled people have access to other financial resources if they are unable to work. These may include unemployment benefits, workers' compensation, family resources, and the like.
The following is an article I recently wrote for the August 2016 edition of Dicta by the Knoxville Bar Association.
An Attempt to Level the Playing Field?A recent bill allowing an award of attorney fees on temporary workers' compensation issues.
In 2013, Governor Bill Haslam signed into law the Tennessee Workers' Compensation Reform Act of 2013. Its provisions applied to accidental injuries occurring on or after July 1, 2014. As noted on one workers' compensation insurance website, "[t]his is the most significant, far-reaching revision of the workers compensation law in Tennessee since the original act was passed in 1919." Some would say that is even a bit of an understatement! A very real consequence of the Reform Act, whether intentional or not, is that injured workers have been unable to find competent legal representation. Though I do not have statistics regarding the percentage of non-represented employees appearing before the Tennessee Bureau of Workers' Compensation ("TBWC"), I am confident that my anecdotal hunch is not overestimated.
Why did this occur? The Reform Act of 2013 had several provisions that singly and in combination prevented attorneys from taking most "new law" workers' compensation cases. Some of the provisions include:
More restrictive definition of accidental injuries, including repetitive trauma injuries;
Treating physician has been given a very special status in terms of opinions on causation, impairment rating, and restrictions;
The notion of vocational disability has almost disappeared completely;
For return to work cases, there is almost no question regarding the amount of money a claimant or injured worker is entitled to; and
The removal of liberal construction of the statute in favor of the injured employee.
All of these factors combine to decrease or eliminate available workers' compensation benefits to an injured employee. Without a predictable and large enough pool of possible benefits, attorneys cannot represent most injured employees. Historically, attorneys could fight on behalf of injured workers for denied benefits (whether temporary or permanent) because the potential resulting settlement or verdict would be large enough that a 20% attorney fee could justify the necessary work on the entire claim. However, under the new law it is nearly impossible for an attorney to recover a sufficient fee on the backend of a successful case to justify all of the work involved. The result has been obvious and drastic. The regulatory scheme requires that all corporations be represented by counsel. Most denied claims involve an unrepresented injured worker versus an experienced attorney representing the employer/insurance company. The playing field has been anything but level.
The crisis of unrepresented injured workers being led to slaughter before the TBWC has not gone completely unnoticed. Enter SB No. 2582/HB 2416. Section 2 dealing with T.C.A. § 50-6-226 states in pertinent part:
SECTION 2. T.C.A. § 50-6-226(d), is amended by deleting the subsection in its entirety and substituting instead the following:
(d)(1) In addition to attorneys fees provided for in the section, the court of workers' compensation claims may award reasonable attorneys' fees and reasonable costs, including reasonable and necessary court reporter expenses and expert witness fees, for depositions and trials incurred when the employer:
(A) Fails to furnish appropriate medical, surgical, and dental treatment or care, medicine, medical and surgical supplies, crutches, artificial members, and other apparatus to an employee provided for in a settlement, expedited hearing order, compensation hearing order, or judgment under this chapter; or
(B) Wrongfully denies a claim by filing a timely notice of denial, or fails to timely initiate any of the benefits to which the employee is entitled under this chapter, including medical benefits under § 50-6-204 or temporary or permanent disability benefits under § 50-6-207, if the workers' compensation judge makes a finding that such benefits were owed at an expedited hearing or compensation hearing.
(2) Subdivision (d)(1)(B) shall apply to injuries that occur on or after July 1, 2016, but shall not apply to injuries that occur after June 30, 2018.
Will this amendment help level the playing field? Important questions remain about how effective the statute change will be in incentivizing competent counsel to wade back in the waters and represent injured workers. First, and foremost is the requirement that the workers' compensation judge find that there was a wrongful denial of benefits. There is no guidance as to what action or inaction defines a wrongful denial of benefits. Is this simply benefits were denied and the TNBWC determines the benefits were owed or is an element of bad faith required? It will take a number of cases to flesh out the statutory meaning of SB No. 2582/HB 2416 since the plain wording of the statute is arguably ambiguous.
There is also no guidance as to the amount of attorney fees that can or will be awarded by the TNBWC. Will rates be set by judicial discretion pursuant to Supreme Court guidance or by Administrative policies, rule, or regulation?
Lastly, the underlying fundamental changes discussed above that discouraged representation of injured workers are still present and may still prove to be too a high hurdle to overcome with this modest change. My sincere hope is that the pendulum swing has slowed and might start to swing back so that the grand bargain of workers' compensation now undermined will be honored and restored.
 Tenn. Comp. R. & Regs. 0800-02-21-.05(2015).
Many of the dam workers involved in cleaning up coal ash after a huge spill in Tennessee in 2008 are now realizing that they have been exposed to many hazardous chemicals during the cleanup operation. Now, eight years later, workers' compensation claims are being filed as more and more of these workers recognize that their health has been adversely affected by the exposure to coal ash and what it contained. To date, at least 6 percent of the 900 workers involved in the cleanup operation have joined in a lawsuit filed against the company for which they worked.
According to some of these workers, they never even considered that their health could be affected by the dust they had to remove. At first, they had to work knee-deep in sludge and later everything was covered in dust, which got into everything. Many of the workers remember the chalky taste of the dust as it hung in the air.
A Congressional proposal could drastically affect benefits for children receiving Supplemental Security Income (SSI). On June 7, 2016, the Speaker of the House of Representatives, Paul Ryan of Wisconsin, released an outline of proposals to supposedly address poverty titled "Poverty, Opportunity and Upward Mobility." One of the more concerning proposals is to end childhood SSI monetary benefits. Childhood SSI benefits are very difficult to qualify medically and financially. The child must meet strict medical requirements ground in medical evidence and the family income must fall below certain limits.
For those that do qualify, the small amount of money and insurance benefits can be life-saving and provide needed resources to enable the child to grow and eventually become a productive member of society. Representative Ryan's proposal would somehow replace cash benefits with some sort of in-kind services though this is merely a euphemism for ending cash benefits since qualifying children become entitled to Medicaid (or state equivalence such as TennCare) when they get SSI already. Thus, Speaker Ryan's proposal merely does away with monetary benefits and adds nothing of substance. Speaker Ryan is also ignoring the fact that childhood SSI benefits can only be spent on certain, qualifying expenses and the account is monitored by SSA.
The Social Security Administration (SSA) recently proposed regulations that would affect all claimants trying to qualify for social security disability insurance (SSDI) or supplemental security income (SSI) benefits. Currently, despite a regulation that allows individual ALJs to have a policy or rule requiring all evidence be submitted five days prior to a hearing, only Region 1 has a blanket regulation requiring all evidence, statements about the case, or objections to the issues be submitted to the SSA within five days prior to a scheduled hearing with only several good cause exceptions. Under the proposed regulation, the procedures currently in place in Region 1 would apply to the entire country. Late filing of evidence can cause delays in decisions in hearings so I can understand the motivation for the rule. However, it is very important that the good cause exceptions exist and that the rule does not stand in the way of valid claims. As discussed recently, claimants wait a long time for their day in court and it would be a shame if the case is lost due some piece of evidence not being considered only due to a technicality.
Additionally, as part of the regulations:
The Notice of Hearing must be mailed at least sixty days prior to the scheduled hearing date;
Subpoena requests must be submitted at least ten business days prior to the hearing; and
The Appeals Council can consider new and material evidence that relates to the period on or before the date of the hearing decision only if there is a reasonable probability that the evidence would change the outcome of the hearing decision.
The proposed regulations can be found at www.gpo.gov/fdsys/pkg/FR-2016-07-12/pdf/2016-16265.pdf.
What was at first an absolute tragedy turned into hope for a Tennessee family. Their son, just 5 years old, was pronounced dead at the scene of a car wreck. Fortunately, someone decided not to give up on the boy and continued trying to save him. The resuscitation efforts were rewarded and he was revived.
The accident happened on a recent Thursday in July. Traffic authorities report that a 57-year-old driver struck a minivan while trying to change lanes. The van in the other lane was struck on the left side. This caused the driver to lose control. The van left the road, entered a ditch, overturning and hitting a number of trees.
We live in a society dominated by electronic gadgets. Tennessee residents, like many others around the world, find themselves immersed in an environment in which many people seem so involved with their newest electronic toy that they forget about everything and everybody around them. News reports on the many car accidents resulting from the new Pokémon-go craze have left many stunned.
Fortunately, should you be involved in a car wreck caused by a person distracted by an electronic device, you have somewhere to turn for help. Our firm has handled, and won, a number of distracted driver cases for our clients. Texting while driving is illegal on Tennessee roads, underscoring the danger of cell phone use while driving. If you, or a loved one, have been involved in an accident in which it is suspected that the other party was distracted, we can provide an evaluation of the facts of the case and advise you of the way forward.