O'Malley Tunstall PLLC
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November 2012 Archives

Wounded Warriors get Expedited Social Security Disability Hearings

Wounded Warriors get Expedited Social Security Disability Hearings if they are serving in the  Wounded Warrior Program. At O'Malley Tunstall we are proud to represent many of our nation's military men and women in their time of hardship. If you are a disabled veteran and can't work due to injury, mental illness, or other medical conditions, you may be eligible for Social Security disability benefits. Social Security Disability benefits are different from benefits offered from the Veterans Administration (VA), and require a separate application. In addition, veterans who become disabled while on active duty may be eligible for supposed fast-tracked Social Security claims processing and hearings. This procedure is supposed to speed up the receipt of disability payments. O'Malley Tunstall has a great deal of experience working with veterans and their families to get them the benefits they deserve. Our expertise can help you or your disabled loved one take advantage of this new procedure. Wounded Warriors and disabled Veterans can obtain Disability As part of a great program put in place by the Social Security Administration, veterans who are part of the Wounded Warrior are supposed to receive faster processing of disability claims. Visit Social Security's website for questions. Here are the basics of what you need to qualify: 1. You have to be a veteran who became disabled while on active duty; 2. You have to provide proof of military pay (like a W-2 form, tax return, or pay stub); 3. You may receive disability benefits whether or not you are still on active duty, but if you have already been discharged, you will need your Form DD 214. 4. It will help if you know the names and locations of all of your medical providers from both civilian and military sources. Just like non-veteran disability claims, you have to meet Social Security's definition of disabled. Basically, for people under 50, you have to prove that you cannot do any work that exists in the national economy. The decision to file for disability can be a difficult one, and the process can be time-consuming and confusing. If you have already applied for Social Security Disability, or if you are just thinking about applying, you may want to consult an experienced advocate about the procedures involved. If you or your loved one is a veteran of this country and has questions about Social Security Disability in general, or the fast-track process for Wounded Warriors in particular, contact us at our website or call us at (800) 755-1987 and speak to our knowledgeable staff and attorneys. You can also go to www.ssa.gov/woundedwarriors/ for more information.

NC Court of Appeals Victory for Wonderful Workers' Compensation Client

Recently the NC Court of Appeals affirmed the Full Commission of the North Carolina Industrial Commission which granted benefits to one of our deserving clients. Joe Tunstall of O'Malley Tunstall, PLLC represented the Plaintiff in this long fought Worker's Compensation claim. In Thompson v. Carolina Cabinet, our client's workers' compensation claim was denied in September of 2008. Joe Tunstall won the claim for the client at the trial level and it has been on appeal in front of the Full Commission of the Industrial Commission twice and the NC Court of Appeals twice. The issue for the Courts was the extent of our client's disability and the futility of a job search considering his age, education and work restrictions. As quoted in NC Lawyers' Weekly: "Even though the Industrial Commission did not expressly state which prong of Russell v. Lowes Prod. Distribution, 108 N.C. App. 762, 425 S.E.2d 454 (1993), it applied, it is apparent from the Commission's findings that it applied the third prong: that plaintiff "is capable of some work but that it would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment...." The opinion addressed what the Industrial Commission must determine when deciding futility under Russell. The opinion goes on to state: We hold that the Commission's findings are sufficient to support its conclusion that plaintiff met his burden of showing futility. With respect to vocational considerations, the Commission pointed out that plaintiff was, at the time of its decision, 45 years old, had only completed high school, and his work experience was limited to heavy labor jobs. Turning to plaintiff's physical limitations, he was restricted to lifting no more than 15 pounds and working no longer than nine hours a day. He was required to avoid repetitious bending, lifting, and twisting. Defendant employer was unable to supply work that met those limitations. Further, plaintiff was experiencing steady pain, although that pain varied greatly in intensity. These findings, which are supported by competent evidence, including testimony from plaintiff's physician, are sufficient to support the Commission's conclusion that it would be futile for plaintiff to search for a job consistent with his physical restrictions and pain given his age, education, and past work experience. Although the Commission was not required to reach this conclusion given the evidence, its decision is sufficiently supported under our standard of review. See Weatherford, 168 N.C. App. at 383, 607 S.E.2d at 352-53 (upholding Commission's conclusion that plaintiff was disabled under prong three based on plaintiff's evidence that he was 61, had only a GED, had worked all of his life in maintenance positions, was suffering from severe pain in his knee, and, as his doctor testified, was restricted from repetitive bending, stooping, squatting, or walking for more than a few minutes at a time); Johnson v. City of Winston-Salem, 188 N.C. App. 383, 392, 656 S.E.2d 608, 615 (holding that evidence tended to show that effort to obtain sedentary light-duty employment, consistent with doctor's restrictions, would have been futile given plaintiff's limited education, limited experience, limited training, and poor health), aff'd per curiam, 362 N.C. 676, 669 S.E.2d 319 (2008).1 Once an employee meets his initial burden of production under Russell, the burden of production shifts to the employer to show that suitable jobs are available and that the employee is capable of obtaining a suitable job taking into account both physical and vocational limitations. Demery, 143 N.C. App. at 265, 545 S.E.2d at 490. Defendants have, however, made no argument that the trial court erred in concluding that defendants failed to meet their burden... We, therefore, uphold the Commission's determination that plaintiff is disabled under the third prong of Russell. Because defendants make no further arguments, the Commission's opinion and award is affirmed. To read more about workers' compensation please visit our web page: O'Malley Tunstall, PLLC.

O'Malley Tunstall: Joining with Wags 4 Tags for Tarboro Fundraiser at On The Square

O'Malley Tunstall, PLLC is joining with Wags 4 Tags for a fundraiser at On The Square Restaurantin downtown Tarboro on November 18, 2012 from 6-8 pm.  There will be a wine tasting and hors d'oeuvres followed by a silent auction.

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