Social Security Administration has a new policy to expedite Veterans claims that are rated 100 percent disabled by the Veterans Administration (VA).
On November 3, 2013 O'Malley Tunstall will help host the Second Annual Wags 4 Tags Eat.Bid.Drink Fundraiser at On The Square Restaurant in Tarboro, NC. Wags 4 Tags unites rescued dogs from kill shelters and trains them to be companion dogs with psychologically and emotionally impaired Veterans in North Carolina. Please contact Wags 4 Tags at their website or at [email protected] for more information. see Wags4Tags Wags 4 Tags is a great organization with an awesome mission statement:
Wags 4 Tags a great organization that raises money to have shelter dogs trained to work with veterans with PTSD is having a fundraiser at Doherty's Irish Pub on July 20th beginning at 2pm. Live music from 6 bands. Doherty's is located at 1979 High House Rd, Cary, NC. Please come out and help raise money for our veterans with PTSD. Our own Susan O'Malley is a member of Wags 4 Tags and encourages participation in this wonderful program.
There is a provision in the NC Senate budget bill changing the salary continuation statute for injured state law enforcement officers that could reduce their benefits upon an injury to less than that of all other injured workers in North Carolina. Please read the below and contact your State Senator to protect our vulnerable law enforcement officers. Link to Senate Bill 402 Injured Law Enforcement officers currently are eligible to receive up to 2 years of full salary following an injury or occupational disease in lieu of the reduced wage loss benefit payable under the Workers' Compensation Act, GS 97-29 (temporary total disability) or G.S. 97-30 (temporary partial disability). (See G.S. 143-166.13 et seq.) The current legal standard is that the officer can get this salary continuance if he is incapacitated from work ("disabled") due to an "injury by accident or an occupational disease arising out of and in the course of the performance by him of his official duties." If the officer's incapacity to work continues beyond two years, he then gets benefits paid under the Workers' Compensation Act which is paid at the lesser rate of 66% of his average weekly wage. (G.S. 143-166.14 as it presently exists). Proposed amendments in this Senate budget bill change the current "injury by accident" or "occupational disease" requirement for benefits to only those injuries by accident or occupational illnesses caused by "extreme activity." Under the Workers' Compensation Act, compensation is paid to all injured workers, not just law enforcement, due to disability caused by an "injury by accident" or "occupational disease" that occurs in the course and scope of one's work. There is no "extreme activity" required for workers who are not law enforcement officers. This new Bill does not appear to provide benefits for those officers who are injured by accident or have contracted an occupational disease, but who haven't been injured by extreme activity. All other workers in NC would be able to get G.S. 97-29 (Temporary total disability) or G.S. 97-30 (temporary partial disability) benefits during the first 2 years of disability after an on-the-job injury, but this Bill seems to prohibit LAW ENFORCEMENT Officers from those benefits --- reducing our most vulnerable and helpful of public servants basic rights. Put another way, under the Senate Bill, injured LAW ENFORCEMENT Officers are "opted out" of the Workers' Comp Act for the first two years, but not "opted in" if their on-the-job injury is not caused by "extreme activity." What is "extreme activity?" No one knows. It is not defined in this change to the law. If you are sitting in your cruiser at a red light and get rear ended by a motorist who is not paying attention, and end up with neck surgery, was that injury caused by "extreme activity?" If you are chasing a suspect through a yard at night and you trip over a tree root and fall, and end up needing knee surgery, was that an "extreme activity?" So the definition will have to be litigated over the next decade or so as officers get injured and are denied their salary continuance or workers' comp benefits. So, the question arises---will any wage loss benefits be payable to law enforcement officers who are merely "injured by accident" or by an "occupational disease" not related to "extreme activity" during the first two years of their disability or will our law enforcement officers have less rights than that of ordinary citizens in North Carolina. Here is the relevant portion: "§ 143-166.14. Payment of salary notwithstanding incapacity; Workers' Compensation 27 Act applicable after two years; duration of payment. 28 The salary of any of the above listed persons eligible person shall be paid as long as his the 29 person's employment in that position continues, notwithstanding his the person's total or partial 30 incapacity to perform any duties to which he the person may be lawfully assigned, if that 31 incapacity is the result of an injury by accident or an occupational disease arising out of and in 32 the course of the performance by him of his or injuries due to extreme activity which occurred 33 in the course and scope of the eligible person's official duties, except if that incapacity 34 continues for more than two years from its inception, the person shall, during the further 35 continuance of that incapacity, be subject to the provisions of Chapter 97 of the General 36 Statutes pertaining to workers' compensation. Salary paid to a an eligible person pursuant to 37 this Article shall cease upon the resumption of his the person's regularly assigned duties, 38 retirement, resignation, or death, whichever first occurs, except that temporary return to duty 39 shall not prohibit payment of salary for a subsequent period of incapacity which can be shown 40 to be directly related to the original injury.41 " § 143-166.15. Application of § 97-27; how payments made. 42 Notwithstanding the provisions of G.S. 143-166.14 of this Article, the persons entitled to 43 benefits shall be subject to the provisions of G.S. 97-27 during the two-year period of payment 44 of full salary. All payments of salary shall be made at the same time and in the same manner as 45 other salaries are paid to other persons in the same department. 46 " § 143-166.16. Effect on workers' compensation and other benefits; application of § 47 97-24. 48 The provisions of G.S. 143-166.14 shall be in lieu of all compensation provided for the first 49 two years of incapacity by G.S. 97-29 and 97-30, but shall be in addition to any other benefits 50 or compensation to which such person shall be entitled under the provisions of the Workers' 51 General Assembly Of North Carolina Session 2013 S402 [Edition 2] Page 395 Compensation Act. The provisions of G.S. 97-24 will commence at the end of the two-year 1 period for which salary is paid pursuant to G.S. 143-166.14. 2 " § 143-166.17. Period of incapacity not charged against sick leave or other leave. 3 The period for which the salary of any person is paid pursuant to G.S. 143-166.14 while he 4 the person is incapacitated as a result of an injury by accident or an occupational disease arising 5 out of and in the course of the performance by him of his or injuries due to extreme activity 6 which occurred in the course and scope of the eligible person's official duties, shall not be 7 charged against any sick or other leave to which he the person shall be entitled under any other 8 provision of law. 9 " § 143-166.18. Report of incapacity. 10 Any person designated in G.S. 143-166.13, who, as a result of an injury by accident arising 11 out of and in the course of the performance by him of his or injuries due to extreme activity 12 which occurred in the course and scope of the eligible person's official duties, is totally or 13 partially incapacitated to perform any duties to which he the person may be lawfully assigned, 14 shall report the incapacity as soon as practicable in the manner required by the secretary or 15 other head of the department to which the agency is assigned by statute. 16 " § 143-166.19. Determination of cause and extent of incapacity; hearing before Industrial 17 Commission; appeal; effect of refusal to perform duties. 18 Upon the filing of the report, the secretary or other head of the department or, in the case of 19 the General Assembly, the Legislative Services Officer, shall determine the cause of the 20 incapacity and to what extent the claimant may be assigned to other than his the claimant's 21 normal duties. The finding of the secretary or other head of the department shall determine the 22 right of the claimant to benefits under this Article. Notice of the finding shall be filed with the 23 North Carolina Industrial Commission. Unless the claimant, within 30 days after he receives 24 notice, files with the North Carolina Industrial Commission, upon the form it shall require, a 25 request for a hearing, the finding of the secretary or other department head shall be final. The 26 finding of the secretary or other department head shall be final unless the claimant, within 30 27 days of receipt of the notice, files a request for a hearing with the North Carolina Industrial 28 Commission using a form required by the Commission. Upon the filing of a request, the North 29 Carolina Industrial Commission shall proceed to hear the matter in accordance with its 30 regularly established procedure for hearing claims filed under the Worker's Compensation Act, 31 and shall report its findings to the secretary or other head of the department. From the decision 32 of the North Carolina Industrial Commission, an appeal shall lie as in other matters heard and 33 determined by the Commission. Any person who refuses to perform any duties to which he the 34 person may be properly assigned as a result of the finding of the secretary, other head of the 35 department or of the North Carolina Industrial Commission shall be entitled to no benefits 36 pursuant to this Article as long as the refusal continues. 37 " § 143-166.20. Subrogation. 38 The same rights and remedies set forth in G.S. 97-10.2 shall apply in all third party liability 39 cases occurring under this Article, including cases involving the right of the affected State 40 agency to recover the salary paid to an injured officer during his the officer's period of 41 disability." 42 SECTION 35.16.(b) This section becomes effective October 1, 2013, and applies 43 to incapacity commencing on or after that date. 44 45 SEPARATE INSURANCE BENEFITS PLAN ASSETS/PAYMENT OF HEALTH 46 INSURANCE PREMIUMS FOR LAW ENFORCEMENT OFFICERS 47 SECTION 35.17.(a) G.S. 143-166.60 is amended by adding a new subsection to 48 read: 49 "(d1) In addition to the benefits provided under subsection (d) of this section, the assets of 50 the Plan
At O'Malley Tunstall the attorneys and staff are committed to helping get America's Veterans and wounded warriors the disability benefits they deserve. To that end, we are happy to report about a new case recently handed down by the United States Fourth Circuit Court of Appeals, whose jurisdiction covers North Carolina. Bird v Astrue discussion In Bird v. Commissioner of Social Sec. Admin., the Fourth Circuit held that VA disability determinations "must be accorded substantial weight in Social Security disability proceedings." 699 F.3d 337, 345 (4th Cir. 2012). The Fourth Circuit had never previously ruled on this issue. In explaining its reasoning, the court cited to SSR 06-3p which states that the Social Security Administration must consider and cannot ignore VA disability decisions. The Court also favorably cited the Ninth Circuit case of McCartey v. Massanari, which explained that both the SSA and VA disability determinations focus on analyzing a claimant's functional limitations to determine whether they have the capacity to work. 298 F.3d 1072, 1076 (9th Cir. 2002). The Fourth Circuit reasoned that, since the SSA cannot ignore VA decisions, and VA decisions look at the same factors and evidence, it makes sense to give the VA decision substantial weight. See generally, Bird, 669 F.3d at 343 - 344. The practical effect of this ruling is that if a Veteran is given a 100% disabled rating by the VA, the Social Security Administration will likely also find that Veteran disabled and grant them benefits. This is great news for our Veteran's because it is likely to make the process simpler and quicker. The second major ruling in the Bird case is applicable to eligibility in all disability cases. The Court held that "an ALJ must give retrospective consideration to medical evidence created after a claimant's last insured date when such evidence may be 'reflective of a possible earlier progressive degeneration.'" Bird, 669 F.3d at 345 (quoting Moore v. Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)). This reaffirms the old commonsense rule that a disability judge has to look at medical evidence created after your date last insured, because it might be good evidence of how your condition affected your ability to work prior to your date last insured. This is a technical ruling on eligibility matters, but could be very important for you if you became disabled before you started to go to the doctor frequently. If you or your loved one is a Veteran considering an application for Social Security Disability, please feel free to call O'Malley Tunstall at any time. We love to help Veterans, and one of our experienced disability lawyers, Susan O'Malley, Joseph Tunstall, or Amos Waranch, would be happy to talk to you about your case.
Sequestration's mandatory budget cuts are scheduled to take effect on Friday, March 1, 2013. The sequestration cuts are not supposed to effect those already receiving Social Security Disability payments. Those persons that are still in the application and hearing stages may be affected depending on the length of time of the sequester. Sequestration could result in the loss of over 5,000 more Social Security Administration employees. This reduction in the number of SSA employees will be felt at the field and hearing offices. Field office operations may eventually be impacted resulting in longer waits to be seen by staff to handle applications and less total applications taken on any given day. A delay in initial decision of applications may also result due to the lack of staff to review applications and make recommendations. Finally as staff is reduced, hearings may be delayed resulting in additional time waiting for a hearing decision due to lack of staff to process the decision, man the hearings and write the decision. We certainly hope that the Federal Government will address these issues quickly, but the projection above could result in delays for those most in need of assistance.
What are the standards used to evaluate drug and alcohol abuse in a Social Security or SSI disability setting? If an ALJ (Administrative Law Judge) determines a claimant is not disabled based upon drug and alcohol abuse ("DAA"), the ALJ must go through the normal five-step sequential evaluation process, find them either disabled or not disabled, and then make a specific finding that drug abuse or alcoholism is material to the claimant's disability. Susan O'Malley discusses substance abuse and its effect upon your disability application The standard for materiality is whether the claimant would still be disabled if s/he did not abuse drugs or alcohol. If the ALJ finds that the claimant's DAA is material to her disability, then he goes through the five-step sequential evaluation process again to determine what her RFC would be without the DAA. If, after going through the sequential evaluation process without the functional impairments caused by the DAA, the ALJ finds that the claimant would not be disabled, then they are not disabled. Put differently, if the ALJ finds that but for the claimant's DAA, they would not be disabled, they are not disabled under the below cited law. Basically if the ALJ makes a finding that the DAA is material to the claimant's disability more likely than not there will be a decision of no disability a loss unless you have very compelling evidence that she would be disabled regardless of the DAA.
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.
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.
WHAT ARE THE DIFFERENT KINDS OF DISABILITY?