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Knoxville Personal Injury Law Blog

Driver negligence due to distracted driving in the spotlight

It is against Tennessee law to text while driving. The enacting of the law purely proves what everyone knows – texting while driving is looking for trouble. Distracted driving is in the spotlight during the month of April across the United States because driver negligence kills or injures. Only a few seconds of distraction can cause dire consequences.               

Should you or a family member be the victim of someone who ignored the safety of others on the road, you could be entitled to compensation. Negligent drivers who cause serious or fatal injuries should be held responsible. Our firm has successfully represented many clients who suffered because someone was distracted while driving. We have a single goal – ensuring the best results for every client.

Social Security Disability Insurance (SSDI) - Interstitial Cytitis (IC)

Periodically, the Social Security Administration (SSA) produces "rulings" that clarify or discuss some policy or regulation regarding Social Security Disability Insurance (SSDI) or SSI.  For instance, in 2014 the SSA releases SSR 14-1 dealing with Chronic Fatigue Syndrome.  SSR 15-1p rescinds and replaces SSR 02-2p: "Titles II and XVI: Evaluation of Interstitial Cystitis."

The stated purpose of the SSR is to clarify how the SSD develops evidence to establish if a claimant has a medically determinable impairment (MDI) of IC and how the SSA evaluates the impairment in disability claims and continuing disability reviews.  The full text of the SSR can be read here.

IC constitutes an MDI when producing appropriate symptoms and medical signs or laboratory findings, and may result in a disabling impairment. There are some signs and findings that could indicate IC, but there are no specific signs or findings that are universally accepted.

In accordance with the AUA guidelines, a physician should make a diagnosis of IC only after reviewing the person's medical history and conducting a physical examination. The physician should also conduct laboratory tests to rule out certain medical conditions that may result in the same or similar symptoms. F

A person can establish that he or she has an MDI of IC by providing appropriate evidence from an acceptable medical source. A licensed physician (a medical or osteopathic doctor) is the only acceptable medical source who can provide evidence establishing an MDI of IC.  The SSA will generally will rely on the judgment of a licensed physician who has made a diagnosis of IC. The evidence must document that this physician reviewed the person's medical history and conducted a physical examination, and that his or her diagnosis is not inconsistent with the other substantial evidence in the person's case record.

In cases of alleged IC, the SSA generally needs to have longitudinal evidence because symptoms, signs, and laboratory findings of IC may fluctuate in frequency and severity and may continue over a period of months or years.

After finding that the MDI could reasonably be expected to produce the alleged symptoms, wthe SSA evaluates the intensity and persistence of the person's symptoms and determine the extent to which they limit the person's functional capacity for work. In evaluating the intensity, persistence, and functionally limiting effects of symptoms, all evidence is considered, including the person's daily activities; medications or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency of the person's attempts to obtain medical treatment for symptoms; and statements by other people about the person's symptoms.

Focus on distracted driving resulting in driver negligence

April is Distracted Driving Awareness Month. A campaign called "U Drive. U Text. U Pay." has been announced by the U.S. Transportation Secretary. In Tennessee and other jurisdictions enforcement efforts will focus on drivers who are using mobile devices while driving. The need for the campaign to address driver negligence, such as texting while driving, is an attempt to curb accidents caused by distracted driving.

Between April 10 and 15, drivers using their mobile devices can expect to receive a ticket from law enforcement authorities. At the same time, an advertising campaign will be launched, focused on reminding drivers of the dangers of distracted driving. The advertising campaign has cost the government $5 million.

Social Security Disability Insurance (SSDI) - Chronic Fatigue Syndrome Name Change?

Social Security Disability Insurance (SSDI) and SSI claimants suffering from chronic fatigue syndrome (CFS) know that they often have a tough battle convincing people of the severity of their condition. This includes administrative law judges working for the Social Security Administration who often discredit the disease like they have historically done for those suffering from fibromyalgia.

The Institute of Medicine recently released a report titled Beyond Myalgic Encephalomyelitis/Chronic Fatigue Syndrome: Redefining an Illness. The committee recommended in the report the adoption of new diagnostic criteria and a new name: Systemic Exertional Intolerance Disease. The committee recommended the name change because the term Chronic Fatigue Syndrome "can result in stigmatization and trivialization" and found that the condition "can cause significant impairment and disability that have negative economic consequences at both the individual and societal levels."

The new proposed diagnostic criteria would require:

1. The following three symptoms:

  • A substantial reduction or impairment in the ability to engage in pre-illness levels of occupational, educational, social, or personal activities, that persists for more than 6 months and is accompanied by fatigue, which is often profound, is of new or definite onset (not lifelong), is not the result of ongoing excessive exertion, and is not substantially alleviated by rest;
  • Post-exertional malaise; and
  • Unrefreshing sleep.

2. At least one of the two following manifestations is also required:

  • Cognitive impairment; or
  • Orthostatic intolerance.

This committee's report was supported by the SSA, as well as several other federal agencies.

Warmer weather brings increased chances of a motorcycle accident

Tennessee surgeons at Vanderbilt University Medical Center are preparing themselves for what they call "trauma season."  With the first signs of warmer weather, five motorcycle accident victims were treated for injuries on one Sunday in mid March. One did not survive.

The season motorcycle season started early this year due to an early warm spell. According to the doctors, April to September is typically considered as trauma season because the number of patients treated for major trauma increases by 50 percent. All-Terrain Vehicle, motorcycle and bicycling activities increase during warmer weather, which leads to increased major trauma injuries.

Social Security Disability Insurance (SSDI) - New Rules on Submission of Evidence

Attention claimants and representatives regarding Social Security Disability Insurance (SSDI) claims!  The SSA published the final rules on the submission of adverse evidence in disability claims.  The final rules amend both the regulations on "Evidence of your impairment" (20 C.F.R. §§ 404.1512 and 416.912 and the "Rules of Conduct and standards of responsibility for representatives" (20 C.F.R. §§ 404.1740 and 416.1540).

The new regulations require claimants to "inform us [SSA] about or submit all evidence known to you that relates to whether or not you are blind or disabled," with two exceptions: (1) material subject to the attorney-client privilege, and (2) the representative's "analysis of the claim," a narrow version of the attorney work product doctrine. Both favorable and unfavorable evidence must be submitted. While the duty to inform or submit evidence is on the claimant, the new rule imposes a specific duty on representatives to "act with reasonable promptness to help obtain the information or evidence that the claimant must submit under our regulations."

If the claimant or representative has evidence that is relevant and does not fall into any exceptions, it must be submitted. If the evidence is not in the claimant or representative's possession, the new regulations state that claimants could satisfy their obligation to inform SSA by providing the information on the disability and appeals forms required for the application or appeal. However, if the claimant becomes "aware of additional related evidence" at any point while the case is being determined, he or she must submit this new evidence as well.

The claimant and representative must inform SSA about "all evidence." Claimants and representatives must submit everything "relevant" they receive. However, claimants and representatives do not need to request "all evidence." SSA's response to comments reiterates the agency's duty to develop the file. SSA's response also states that "if claimants or their representatives request only the discharge summary from a hospital chart, we require them to submit only what they receive in response to that request in its entirety. We would not require them to request and pay for all of the other records from that hospitalization." SSA's response to comments also notes that medical records for an individual other than the claimant, sent accidentally by a treating source, are not considered relevant.

SSA's response to comments also address concerns that the new rule would deluge SSA with duplicative evidence. In 20 CFR 404.1512(c) and 416.1912(c), the new regulations provide two exceptions to the rule that "evidence from another source must be submitted in its entirety." First, evidence should not be submitted if an exact duplicate of the document is already in the file. Second, duplicative evidence need not be submitted if an SSA adjudicator directs the claimant or representative not to submit it.

In addition to requesting extant medical records, representatives often ask medical providers to write letters or complete questionnaires about a claimant's impairments. SSA's response to comments explain that "if a claimant's medical source sends his or her representative medical records or a written opinion about the claimant's medical condition, the representative cannot withhold those records or that opinion based on the work product doctrine adopted under these rules." But "representatives may still protect from disclosure their consultation with any medical source about the claimant's medical condition....if a representative takes notes during a discussion with a claimant's medical source, those notes are protected from disclosure as work product."

These new rules demonstrate why it is important to have competent, legal representation.

How often can a truck accident be blamed on greediness?

In the United States, freight is mainly transported by trucks. It comes as no surprise that trucks make up 4.7 percent of all passenger vehicles. Shockingly, 12.4 percent of all fatal crashes involve trucks. In a truck accident, the people in the other vehicle stand very little chance. Statistics document that the majority of fatalities in truck accidents are the people in a car involved in the accident, not the truck.

Federal legislators have attempted to make trucking safer by enforcing specific laws and rules. These laws are enforced across the country, including Tennessee.  The safety measures relate to the number of hours a truck driver is allowed to work before taking a rest period. However, surveys suggest that truck drivers often work longer than allowed by law and delay having necessary repairs done to their vehicles in order to increase their income.  

Supplemental Security Income (SSI) - Amputations and childhood benefits

Supplemental Security Income (SSI) may be available for a child who has suffered from a serious injury requiring an amputation. As part of continuing series on childhood SSI or disability involving the musculoskeletal systems, I am going to focus on the listing for amputations this week.

Childhood SSI claims are evaluated differently than adult claims for Social Security Disability or SSI. The requirements are actually more stringent. IThe SSA whether the child has a condition or combination of conditions that meets or medically equals the criteria of a listing, or that functionally equals the listings. If so, then he presumed to be disabled.

For a child with a serious amputation injury, the SSA looks first at the listing.

101.05 Amputation (due to any cause).

A. Both hands;

or

B. One or both lower extremities at or above the tarsal region, with stump complications resulting in medical inability to use a prosthetic device to ambulate effectively, as defined in 101.00B2b, which have lasted or are expected to last for at least 12 months;

or

C. One hand and one lower extremity at or above the tarsal region, with inability to ambulate effectively, as defined in 101.00B2b;

or

D. Hemipelvectomy or hip disarticulation.

If the Listing cannot be proven, the claim can still be won if the child's condition(s) functionally equals the listings 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.

 

Fatal car wreck also leaves Good Samaritan injured

A tragic accident left one person dead and a good Samaritan injured. The Tennessee car wreck happened on a recent Thursday night on March 12 at approximately 9:45 p.m. The circumstances surrounding the accident can only be described as tragic.

According to reports, the 29-year-old deceased victim was experiencing car trouble and pulled off the road. A 23-year-old driver stopped to assist. Both the drivers were apparently outside their cars near the road when a vehicle operated by a 20-year-old smashed into them from behind.

Supplemental Security Income (SSI) - Fractures of Femur or Tibia

Supplemental Security Income (SSI) may be available for children suffering from serious orthopedic conditions involving the femur, tibia, pelvis, or the tarsal bones. I recently discussed the requirements for spinal disorders.

Childhood SSI claims are evaluated differently than adult claims for Social Security Disability or SSI. The requirements are actually more stringent. The SSA determines whether the child has an impairment or combination of impairments that meets or medically equals the criteria of a listing, or that functionally equals the listings. 

101.06 Fracture of the femur, tibia, pelvis, or one or more of the tarsal bones. With:

A. Solid union not evident on appropriate medically acceptable imaging, and not clinically solid;

and

B. Inability to ambulate effectively, as defined in 101.00B2b, and return to effective ambulation did not occur or is not expected to occur within 12 months of onset.

Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an impairment that interferes very seriously with the child's ability to independently initiate, sustain, or complete activities. Ineffective ambulation is defined generally as having insufficient lower extremity functioning to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities. (3) How we assess inability to ambulate effectively for older children. Older children, who would be expected to be able to walk when compared to other children the same age who do not have impairments, must be capable of sustaining a reasonable walking pace over a sufficient distance to be able to carry out age-appropriate activities. They must have the ability to travel age-appropriately without extraordinary assistance to and from school or a place of employment.

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.

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