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September 2011 Archives

Sovereign Immunity: or why I cannot sue most municipalities

One of the most bizarre and antiquated laws still existing in North Carolina is the law of sovereign immunity.  Like contributory negligence, where North Carolina is one of only a small hand-full of states with this doctrine, our sovereign immunity regulations continue despite our advances as a society.  The original reason for Sovereign immunity was to allow police and sheriff to make arrests and take other governmental actions without fear of suit for ordinary negligence.  This original logical reason has been expanded to any governmental function of a municipality.
Our Court of Appeals in one of its most recent opinions essentially sets out that the individual municipality is unfettered in taking whatever action it chooses with regard to waiver of immunity.
"As a general rule, the doctrine of governmental, or sovereign immunity bars action against, inter alia, the state, its counties, and its public officials sued in their official capacity." Herring v. Winston-Salem/Forsyth County Bd. of Educ., 137 N.C.App. 680, 683, 529 S.E.2d 458, 461 (2000) (citation omitted). The doctrine applies when the entity is being sued for the performance of a governmental function. Id. " '[S]uits against public officials are barred by the doctrine of governmental immunity where the official is performing a governmental function, such as providing police services.' " Parker v. Hyatt, 196 N.C.App. 489, 493, 675 S.E.2d 109, 111 (2009) (citation omitted). A town or municipality may waive sovereign immunity through the purchase of liability insurance. Satorre v. New Hanover Cty. Bd. of Comm'rs, 165 N.C.App. 173, 176, 598 S.E.2d 142, 144 (2004). However, " '[i]mmunity is waived only to the extent that the [municipality] is indemnified by the insurance contract from liability for acts alleged.' " Id. (quoting Combs v. Town of Belhaven, 106 N.C.App. 71, 73, 415 S.E.2d 91, 92 (1992)). "A governmental entity does not waive sovereign immunity if the action brought against them is excluded from coverage under their insurance policy." Patrick v. Wake Cty. Dep't of Human Servs., 188 N.C.App. 592, 596, 655 S.E.2d 920, 923 (2008).
Lunsford v. Lori Renn, --- N.C.App. ----, ----, 700 S.E.2d 94, 100 (2010), disc. review denied, --- N.C. ----, 707 S.E.2d 244 (2011).  Arrington v. Martinez, COA10-1204, 2011 WL 4389653 (N.C. Ct. App. Sept. 6, 2011).
In the Arrington case, the Court of Appeals set out that the City of Raleigh may set out specific rules for when it will waive immunity that includes that it will waive immunity when a case settles and may specifically agree that it never owes any pain and suffering.
'By statute, a City may, but is not required to, waive governmental immunity."  Arrington v. Martinez, COA10-1204, 2011 WL 4389653 (N.C. Ct. App. Sept. 6, 2011).
The court determined that the City of Raleigh's determination not to pay pain and suffering and to waive their immunity only upon a settlement and a release was neither "arbitrary or capricious" which would be the only waive to prove the city's waiver was invalid.
Instead the Court of Appeals found "North Carolina General Statutes § 160A-485(a) provides that a municipality may purchase insurance coverage and may waive its immunity to whatever extent it determines appropriate. It may also elect not to waive its immunity at all, in which case plaintiff would have no possibility of any recovery from the City."   Arrington v. Martinez, COA10-1204, 2011 WL 4389653 (N.C. Ct. App. Sept. 6, 2011).
Although the Court found that the waiver should be construed against the one waiving the immunity, their decision did not have much in the way of logical support for their position.  Instead the Court found that the city could just deny the claim therefore any payment they allowed was sufficient.

Personal Injury Trial: Jury Selection in an Automobile Collision Case

As I picked a jury this afternoon in an automobile accident collision case, I thought of the basics.  What am I trying to tell this jury about my case?  What am I trying to explore in this jury panel? If you ask attorneys who actually try a lot of cases, they will explain that voire dire or jury selection is part science  but mostly an art, developed by actually picking juries.  Some people are born to talk to twelve people about their client's case and can do so in such a natural way that the jury is drawn to them like a moth to a flame... Others, and I fall into this category, must work on picking a jury and constantly feel awkward and unnatural.  Asking questions and keeping the jury discussing issues when they would like to be doing anything but sitting there answering your questions is difficult.  Jury selection so that the jury stays interested ramps up the difficulty. You pick a civil jury after lots of hours of case preparation, development, depositions of all the parties and a really informed idea as to what you want to do with your case... or at least that is the preferable idea.  In many cases, the issues present themselves over time or dissolve or fail to dissolve as the evidence is pulled out of the various witnesses. When I'm picking a jury I am constantly having to slow myself down as I want the best jurors possible, I also, due to all the preparation, want to get started with my trial.  That is a mistake and one I deal with in every trial.  You cannot move past jury selection or for that matter any other part of a trial.  Each part, opening, closing, jury selection or each witness interviewed must be given whatever amount of time it takes to finish. What questions are really relevant?  After over fifty automoible trials, I'm more interested in the people on the panel and how they are going to interact with each other and what those people are going to think about my client than specific questions.  Nice, hard working people with a good work history who do not have a history of causing automobile accidents are honestly who I want, I want people like my clients.  Many of my clients have great work histories, work hard and try to get better and back to their normal lives as quickly as possible - just looking for more people just like they are

How Does Social Security Look at the Opinion From My Doctor

How Does Social Security Look at the Opinion From My Health-Care Provider?  What will my doctor or physicians assistant tell Social Security about my condition?  Who can I ask to help me with my disability?   Social Security has a list of sources it will consider as "acceptable medical sources" that can help establish a claimant's disability. These sources are: licensed physicians; licensed or certified psychologist; licensed podiatrist for impairments of the foot and ankle; and qualified speech pathologist for speech impairments only. 20 CFR §404.1513.  Please note that this group is very limited. It does not include Doctors of Chiropractic nor does it include your acupuncturist. Social Security is supposed to consider evidence from other sources as well such as; nurse-practitioners; physicians' assistants; chiropractors;  therapists; teachers; welfare agency personnel. 20 CFR §404.1513.  This means that opinion from doctors and psychologist will have the most weight. However, an opinion from a nurse-practitioner or physicians' assistant can help you prove disability as well.  The best opinions are from your treating physician and bolstered by evidence in the notes of the secondary sources.  If your physicians' opinions are all favorable, and your secondary sources are also favorable, your credibility as a claimant increases with the Administrative Law Judge (ALJ). Social Security wants the reports from the health-care providers to include the following: medical history; clinical findings; laboratory findings; treatment prescribed with results and prognosis; and a statement of what you can do as a result of the impairment. 20 CFR §404.1513.  Therefore, a one sentence conclusory statement from your doctor without history, diagnosis and past treatment that indicated they believe you are disabled is simply not enough to carry much weight.  If on the other hand, your treating physicians details what they have treated you for, the past and current diagnosis, what testing has revealed and a statement of your functional limitations, this doesn't have to be a book, a few well written sentences with the required information is sufficient. Have you asked you health-care provider about whether they believe you are disabled? If not, you should. Their opinion could help Social Security understand your case. However, whereas a good opinion helps your case, a bad opinion can sink your case. So tread carefully.

Appeal or File a New Application for Social Security?

Appeal or File a New Application? As of July 28, 2011 Social Security will no longer allow a claimant to appeal a hearing decision to the Appeals Council and file a new application. SSR11-1p  This minor change in policy actually has a serious effect upon claimants as the Appeals Council often takes an extraordinary amount of time to review a case. If you receive an unfavorable decision from a judge you now have to choose whether to appeal or file a new application. If you appeal and are denied then you can look at filing in Federal Court. You can put in a new application while you case is on appeal in Federal Court. If you put in a new application, you will very likely close off the potential for the back due benefits that were part of your old claim. This can often be a major and potentially very costly decision. You should consider the following: Do I have strong issues for appeal? Not just that you disagree with the judge but there are issues like favorable medical evidence that was not considered, or witness testimony that was not addressed. Is there a lack of medical treatment that I can change going forward? The judge begins their analysis of your case by looking at the medical records. If your claim for benefits cover years that you did not receive medical treatment, that is a very hard issue to appeal. Which is likely to be the longer wait? It can take up to two years or more to get a hearing. It is difficult to predict how long a case will be at the Appeals Council before you receive an answer and if is not favorable your Federal Court appeal is not assured of a favorable result. Each case is different and will have a different path that is best for that person.

Social Security Hearing: What happens if I missed my Hearing?

What Do You Mean You Missed Your Hearing? In North Carolina the current wait time can take 18 months or more from the time you request a hearing until you have a hearing date scheduled.   As a result, it is very important to keep that appointment for your hearing. This sounds obvious but so many Social Security Claimants are so sick and dealing with so many health issues that the hearing itself is often not as high a priority as another doctor's appointment. You will have at least 20 day notice of the date, time, and location  Once you are given your date and time you should immediately start making preparations. If you are not familiar with the location, go several days ahead of time to find it, walk in and make sure you are in the correct place. If transportation is a problem, start working on finding a ride immediately and make sure your transportation is reliable and dependable. If you miss your hearing, the judge can issue an Order to show "good cause". This civil order must be addressed and the claimant will have an opportunity to explain why they were not at their hearing. The judge will determine whether that explanation is a "good" one. For, example if some one was in the hospital, that would be a good explanation for failing to appear. However, if the explanation is that they did not have a ride, the judge may or may not accept that as a good reason for failing to appear. A judge can dismiss the claimant's case if they fail to appear, no representative appears, and there is proof in the file that they received the notice of hearing or the whereabouts of the claimant are unknown. HALLEX I-2-4-25.  This means that your failure to appear on the date and at the correct time can negatively affect your hard fought battle to obtain Social Security often putting you years behind.  Regardless of your medical problems, you must advise the ALJ if attendance will be difficult. You should not miss your hearing. If it looks like you will miss it you should let Social Security and your representative know as soon as possible. You should always keep your representative and Social Security up to date with your current contact information. If you fail to show up for your hearing and make no effort to contact Social Security, it looks like you do not care about your case. If you do not care about your case, why should Social Security? Ultimately you should appear at your hearing, but if due to no fault of your own you were unable, you must contact the ALJ immediately to discuss the reason.

Does a "stable" medical condition equal the ability to work?

Administrative Law Judges (ALJ's) often like to characterize medical records as a whole rather than looking at each individual person's disabilities.  One way they pigeon hole claimants is by referring to their conditions as stable.   Quite often medical records use the word stable to describe a medical condition. However, being stable is not the same thing as being well. A good way to think about it is like this:An ice cube in the refrigerator is "stable." However, once you take it out of the refrigerator and put it in a drink, it begins to melt. So in protective conditions it is "stable.' Outside those special conditions, which do not exist in outside world, it is not "stable" at all. The law in different Federal District Court Circuits recognizes the principle of a stable condition verses the actual condition itself. A "stable" medical condition has to be understood as to how it relates to an individual condition and circumstances. Fleshman v. Sullivan, 933 F.2d 674, 676 (8th Cir. 1991); Lechner v. Barnhart, 321 F. Supp. 2d 1015, 1030 (E. D. Wis. 2004). It is very helpful if the doctor defines what they means by stable in the records but often times they do not. This is where witnesses can help filling the blanks of what stable really means in a claimant's life. (See Blog on what makes a goof witness.) It is also helpful if the patent is tells the doctor what is going on with their condition in a clear way so that description can make it into the records. (See Blog on doctor's visits.) If you have any questions about Social Security, please do not hesitate to contact Susan O'Malley in our office.

Who Makes A Good Witness in A Social Security Case?

Social Security Disability law allows lay witness testimony (non expert testimony) to help prove disability.The Fourth Circuit Court of Appeals has been very clear that lay witness testimony that is not contradicted by medical records or other testimony within the case is entitled to great weight in making a disability determination.  Susan O'Malley's Hines case is one of a very few reported cases out of the Fourth Circuit that upheld the contention that lay witness testimony, when supported by other evidence was enough to prove disability. Having met his threshold obligation of showing by objective evidence a condition reasonable likely to cause the pain claimed, Mr. Hines was entitled to rely exclusively on subjective evidence to prove the second part of the test, i.e., that his pain is so continuous and/or severe that it prevents him from working a full eight hour day. Mr. Hines did so by testifying that his illness and the resulting fatigue require him to lie down "half the day." Also, his wife testified that Mr. Hines is forgetful, unable to do much around the house, and has "a lot of pains in his leg." Claimant's friend, Mr. Ernest Nixon, testified that Mr. Hines suffered from a "lack of energy" and that his energy level is "not the energy he used to have." Hines v. Barnhart, 453 F.3d 559, at 565 (2006) In Laws the Fourth Circuit Court of Appeals reiterated that an "expert medical opinion and evidence, in itself, may not be sufficient to enable a fact finder properly to determine whether or not a disability exists within the terms of the Act. Where it is not possible to reach a determination based on such evidence subjective testimony by lay witnesses may be entitled to great weight where it is uncontradicted in the record."  Laws v. Celebrezze, 368 F.2d 640, 644 (4th Cir. 1966). In the Morgan case, the Fourth Circuit went on to point out, "Descriptions of friends and family members who were in a position to observe the claimant's symptoms and daily activities have been routinely accepted as competent evidence. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987); 20 CFR § 404.1529(c)(3). A disregard for such evidence violates the Commissioner's regulations about observations by non medical sources as to how an impairment affects a claimant's ability to work. Id. When an ALJ fails to believe lay testimony about a claimant's allegations of pain or other symptoms, he should discuss the testimony specifically and make explicit credibility determinations. Smith v. Heckler, 735 F.2d 312, 313 (8th Cir.1984). Behymer v. Apfel, 45 F.Supp.2d 654, 663 (N.D.Ind.1999); see also, e.g., Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir.1996) ("The fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony. To the contrary, testimony from lay witnesses who see the claimant every day is of particular value; such lay witnesses will often be family members." (citation omitted)); Regennitter v. Comm. of the Social Sec. Admin., 166 F.3d 1294, 1298 (9th Cir.1999) (noting claimant's mother's testimony, explaining that such lay testimony "provides an important source of information about a claimant's impairments, and an ALJ can reject it only by giving specific reasons germane to each witness." (citing Smolen )). As Morgan argues, if family members' evidence was automatically worthless, it would be an odd exercise in futility to even allow them to fill out questionnaires and submit them into evidence."  Morgan v. Barnhart, 142 F. App'x. 716, 731 (4th Cir. 2005) Therefore, in light of the Court's willingness and perceived encouragement to allow non-medical lay witness testimony, a  witness needs to be someone who has regular contact with you.  A friend or relative that helps with chores around the house that you can no longer do makes a good witness. A good witness should be able to describe the things they see you struggle with such as walking, prolonged sitting, or lifting. Just because they can come to the hearing does not make them a good witness. They need to have something to say that will help the judge understand how you struggle on a daily basis because of your disability. If there is more than one witness they each need to be able to tell the judge something unique. Judges can become impatient with repetitive testimony. Witnesses do not need to know anything that is in your medical records. The records will speak for themselves. Witnesses help by telling the judge about the things that do not appear in medical records. A witness can talk about the difficulty you have grocery shopping or getting up the stairs at your home. A good witness is someone who can help fill in the picture of how your disability affects you on a day to day basis. If you have further questions about Social Security hearings, feel free to contact Susan O'Malley in our office.

Social Security Disability for our Veterans and Wounded Warriors

Veterans and Wounded Warriors can apply for Social Security Disability, SSI.  All of our Veterans are heroes but I wonder if many of them know that their service or work history may entitle them to Social Security Disability if they are unable to return to work? Many of our recent veterans are still on active duty in the Wounded Warriors program, where they  continue to receive military pay while they attempt to get medical treatment and determine whether they will be able to continue to serve or transition to civilian life.  This wonderful program allows injured military to begin the tough transition while still receiving pay and medical care. Often this is a good time to begin the process of applying for Social Security Disability. Disability for our Veterans and Wounded Warriors There are approximately 9.4 million military veterans currently receiving Social Security benefits.  It takes a special person to give of themselves for the benefit of our country. It was incredible to find out that almost one in four persons receiving Social Security disability, either through Social Security Retirement or Disability, has served our country!  Military veterans have been covered by Social Security since 1957. If you served in the military prior to 2001 Congress specifically passed a law that allowed for an additional earned income credit equal to $100.00 in earnings for every $300.00 earned in active duty pay.  This credit was to offset the smaller earnings of military as opposed to private employment.  Congress ended the credit in 2001.  See SSA's website for more information on disabled veterans and on the end of the income credit for veterans. As we approach the ten year anniversary of 9/11, unfortunately we have a high number of wounded soldiers and marines, many who are still very young, very injured and in need of a bright future.  Although there is no preferential treatment for proving disability if you are a wounded veteran (and almost all the veterans we have represented would not have wanted one) most Administrative Law Judges (ALJ's) will certainly take into account your active duty service and sacrifice for your country. If you are under fifty years of age, you still must prove you are disabled from  performing any work to qualify for benefits.  That means you cannot do any job in the national economy due to your injuries.  For example, if you are able to be the greeter at Wal-Mart you are not disabled for Social Security purposes.  If you are over fifty, then the standards change depending on your prior work and current functional limitations. For those recently returning from war, with functional limitations, injuries, post traumatic stress disorder(PTSD), depression, anxiety and a host of physical ailments, it is very difficult to decide to file for disability.  Remember, filing for disability does not mean you will never work again -- instead Social Security can be stopped after your recovery and entry back into the working world. If you have questions as a veteran of our country, please do not hesitate to contact Susan O'Malley in our office, who heads our Social Security Disability section.  http://www.omalleytunstall.com/; http://www.omalleytunstall.com/

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