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.
Previous blogs have discussed why you need a physician opinion in your Social Security Disability claim or claim for Supplemental Security Income. One issue that is often asked is if my doctor believes I am disabled, does his opinion control? Medical Treatment for SSD, SSI Hearing It is a long held tenant of disability law that the opinion of a treating physician is entitled to controlling weight when accompanied by clinical and diagnostic techniques. Ward v. Chater, 924 F. Supp. 53, 55 (W.Va. 1996); see also, SSR 96-2p (explaining that a treating source medical opinion is controlling if supported by clinical and diagnostic techniques and not inconsistent with other evidence). The Commissioner has discretion in this matter "only if [the opinion] is not well-supported by clinical evidence or is inconsistent with other substantial evidence." Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001). "It is well-settled that an ALJ should not substitute his own untrained medical opinion for that of a medical professional." Slen v. Astrue, 1:09-CV-607, 2010 WL 2640297 (E .D. Va. June 30, 2010)(citing Wilson v. Heckler, 743 F.2d 218, 221 (4th Cir. 1984)). The law is clear, the decisions often are not, as your treating physician must explain how over a period of multiple visits his or her examinations and tests have revealed your medical condition. A good opinion also explains how this condition affects your functional capacity (ability to walk, crawl, climb, lift, etc). Good treating physicians rely upon a history of treating a patient to explain their opinion as to their work or vocational abilities. The more detailed the explaination the easier for the ALJ (administrative law judge) to give weight to the treating physician. To learn more about Social Security visit us at : O'Malley TunstallYour browser does not support the video tag
Often people first call our office out of concern over payment for large medical expenses as a result of an automobile collision that was not their fault. The law in North Carolina after the passage of HB542 and SB 586 has changed and only a portion of any bill, that amount that is neccessary to satisfy a medical bill, is admissible to prove evidence of medical expenses. Rule 414 Evidence of medical expenses. Evidence offered to prove past medical expenses shall be limited to evidence of the amounts actually paid to satisfy the bills that have been satisfied, regardless of the source of payment, and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. In the real world, many clients debate whether or not to use their health insurance to pay their medical bills after an injury. They don't want to use the insurance because it was not their fault, they are afraid of higher premiums and don't want to have the hassle of filing the insurance. Often, many hospitals take that decision away from the patient by refusing to bill the health insurance regardless of whether the patient would like it billed or whether the patient has already paid for health insurance that should pay the bill. Many insurance companies, such as Medicare, are secondary payors. That means they pay only if no one else pays. However, even Medicare states that when a bill is left over 120 days it shall become primary and pay. In these situations, insurance such as Medicare of the State Health Plan is entitled to obtain reimbursement for all the bills paid by them by the third party at the end of the case. Regardless of the reimbursement provisions (called subrogation) many hosptials take the decision away from the injured party and refuse to bill the person's health insurance hoping for a greater recovery from the at fault party in the collision. However, the hospital doesn't take the risk of the patient recovering the amount from the at fault person's insurance, instead they often make claims against and sue the patient for the unpaid bill, even though they could have accepted the insurance. The Charlotte Observer has recently written a series of articles on these not-for-profit hospitals suing uninsured persons for their unpaid medical expenses. Articles. Another article by the Charlotte Observer even references a veteran with tri-care insurance whom they sued because they could not properly bill the insurance. Article 2. In another article Duke University failed to properly code an insurance bill and hired a collection agency to hound and call repediatly a couple who had proper insurance. Article 3. Forbes Magazine has chosen to call this the Tort-Reform for Hospitals. In their article they describe that not-for-profit hospitals are obtaining significant benefit from directly suing their patients rather than working with the insurance companies or using low paying health insurance such as Medicaid. Our clients, and many other persons injured through no fault of their own should worry. Just because you have been financially stable and smart, it will not prevent
Social Security must approve any fee agreement between a representative and a claimant. 42 U.S.C.A. §406. At the administrative level, the fees are usually charged on a contingency fee basis or through a fee petition to the Social Security Administration. In order for a contingency fee contract to be approved, it must state that the attorney's fees are to be no more that 25% of the back due benefits or $6,000.00 whichever is less. The current cap on attorney's fees is $6,000.00. Social Security can adjust the cap for inflation. Fee agreements will not be approved if a claimant appoints more than one representative from the same firm and all of the representatives do not sign the same contract; the claimant has more than one representative from different firms; a representative withdraws before Social Security makes a decision or the Federal Court reverses the Social Security denial and awards benefits. (POMS §GN 03940.001). If a contract cannot be approved, then a representative must submit a fee petition. In addition to filling out the fee petition form, a representative should attach proof of the amount of time spent in the case. Most case management software allows practitioners to keep up with their time. It would be a good idea to do this in all cases so when a fee petition is necessary, the time report can be easily generated and attached. If Social Security withholds the attorney's fees for payment directly to the representative, then there will be a user fee charge of 6.3% of the attorney fee, whichever is less. (42 U.S.C.A. §406(a); 69 Fed. Reg. 387, Jan. 5, 2004 and Social Security Protection Act of 2004, P.L. 108-203 §301, 118 Stat. 493 (2004)). If an attorney appeals a case to Federal Court after the final administrative denial of benefits by Social Security and the appeal is successful, then the attorney can apply for appellate attorney fees under the Equal Access to Justice Act (EAJA). The petition for fees under EAJA must allege that the Plaintiff has a net worth of less than two million dollars ($2,000,000.00), the rate and the amount of the fee requested and itemized statement of time spent in the case and that Social Security's defense of the case was not substantially justified. Charles Hall, Social Security Disability Practice, §6:81, 2005 ed. p. 260 (citing Duggan, Attorney's Fees Pursuant to the Equal Access to Justice Act, 25 Soc. Sec. Rep. Serv. 635, 648 (1989) (WESTLAW: SSRS database, ci (25+5 634))). The United States Attorney representing Social Security has sixty (60) days from a judgment to file an appeal. Hodges - Williams v. Barnhart, 221 F.R.D. 595 N.D. Ill., (2004) (citing Fed. R. Civ. P. 4(a)(1)(B)). If Social Security does not appeal, then Plaintiff's counsel has thirty (30) days after Social Security's sixty (60) days has past to submit an EAJA petition. Id. (citing 28 U.S.C.A. §2412). The Federal Court will review the EAJA petition. In their review of the petition, the Court will give deference to a contingency fee agreement between the attorney and the client as well as consider the attorney's experience in Social Security, time spent, and the result. Gisbrecht v. Barnhart, 535 U.S. 789 (2002).
If you were involved in an automobile wreck, not your fault, while workering for your employer in North Carolina, you may not have to pay the workers' compensation back the full amount of their lien. Often the question comes down to fairness and the amount of the recovery, the relative fairness of the recovery and the the future medical expenses are just some of what must be considered. If you are in such an accident, please see an attorney who handles both workers' compensation and personal injury law as per N.C.G.S. 97-10.2 often a hearing can be held with your local judge to determine what, if any, that judge would require you to repay workers' compensation. N.C.G.S. §97-10.2(j) gives the trial court discretion to determine how settlement proceeds are to be distributed. The trial court may reduce or even completely eliminate a workers' compensation lien if the facts warrant, and appellate courts may not interfere with such an exercise of discretion -- except in extreme circumstances in which discretion has been abused. Allen v. Rupard, 100 N.C. App. 490, 397 S.E.2d 330 (1990); Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004). LEGGETT v. AAA COOPER TRANSPORTATION INC was one of the most recent cases on this issue and handled by O'Malley Tunstall, PLLC. In this case the workers' compensation carreir had their lien reduced to zero and appealed. The North Carolina Court of Appeals upheld the judges' ruling. In deciding whether to reduce or eliminate a workers' compensation lien, the trial court "is to make a reasoned choice, a judicial value judgment which is factually supported...[by] findings of fact and conclusions of law sufficient to provide for meaningful appellate review." Id. Our Supreme Court has often stated the test to be used when determining whether discretion has been abused: Generally, '[t]he test for abuse of discretion is whether a decision' is manifestly unsupported by reason.' White v. White, 312 N.C.770, 777, 324 S.E.2d 829, 833 (1985), or, 'so arbitrary that it could not have been the result of a reasoned decision[,] State v. Wilson, 313 N.C. 516, 538,330 S.E.2d 450, 465 (1985).' Little v. Penn Ventilator Company, 317 N.C. 206,218,345 S.E.2d 204, 212 (1986). Most recently the Court found no abuse in discretion in Sherman v. Home Depot, 160 N.C.App. 404, 588 S.E.2d 478, Rev. Den.; 358 N.C. 156, 592 S.E.2d 696 (2004). In Sherman, the lien was $168,000.00 and the plaintiff had expended $169,806.00 in recovering $1,300,000.00 - the trial court reduced the lien to $55,667 (a third) and required the workers' compensation carrier pay their fair share of the costs in the amount of $56,602. Id. In Allen v. Rupard, 100 N.C. App 490, 397 S.E.2d 330 (1990), rev. allowed, 328 N.C. 270, 400 S.E.2nd 449 (1991), the lien amount was $40,000.00; and the settlement was $25,000.00. The court divided the settlement in half, with $12,500.00 going to the workers' compensation carrier and $12,500.00 going to the employee. The Allen court considered the nature and the circumstances of the incident in which Plaintiff was injured, the nature and extent of Plaintiff's injury (a crushed vertebra which necessitated three surgical procedures on his back), and other circumstances in rendering its decision. The Supreme Court found no abuse of discretion. In Wiggins v. Busranger Fence Co., 126 N.C. App. 74, 483 S.E.2d 450 (1997), Travis Wiggins was killed when a gate fell on him at the Raleigh-Durham International Airport. It was anticipated that Mr. Wiggins' family would receive approximately $200,000.00 from his employer in workers' compensation benefits. Mr. Wiggins' estate sued two fence companies claiming that their negligence proximately caused Mr. Wiggins' death. The case settled for $900,000.00 prior to trial. The trial court held that Mr. Wiggins' employer could not recover anything from the settlement and had no lien on the third party settlement funds. The Court of Appeals found no abuse of discretion. In United States Fidelity and Guar. Co. v. Johnson, 128 N.C. App 520, 495 S.E.2d 388 (1998), Melvin Johnson, an employee of the Department of Transportation, died in an automobile accident during the course and scope of his employment. The Department of Transportation provided workers' compensation benefits to Mr. Johnson's family totaling $148,955.00. Mr. Johnson's estate filed suit against the third-party tort-feasor to recover damages for his wrongful death. Mr. Johnson's estate received a total of $372,825.00 in settlement. At the time of the settlement, the Department had paid $47,045.51 in workers' compensation benefits to Mr. Johnson's family. The trial court completely extinguished the Department of Transportation's lien, finding that it would be inequitable under the facts and circumstances of the case to allow the Department of Transportation to recover the workers' compensation lien from the settlement proceeds. The Court of Appeals found no abuse of discretion. In the case of In re Biddix, 138 N.C. App. 500, 530 S.E.2d 70 (2000), Kimberly Biddix was injured in an automobile collision caused by the negligence of a third party. Ms. Biddix received workers' compensation benefits in the amount of $16,844.03 and temporary total disability benefits in the amount of $1,874.40. Ms. Biddix subsequently entered into a settlement with the third party tort-feasor for $25,000.00, which were the limits of the tort-feasor's automobile liability insurance. The trial court entered an order finding that the settlement did not adequately compensate Ms. Biddix for her injuries and eliminated her employer's lien. On appeal, the Court of Appeals found no abuse of discretion.
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. https://www.omalleytunstall.com/; https://www.omalleytunstall.com/