SIX IMPORTANT ARTICLES FOR WORKERS COMPENSATION AND SOCIAL SECURITY DISABILITY IN VIRGINIA

1.     A VIRGINIA WORKERS COMPENSATION APPEAL

For over 30 years I have been representing claimants before the Virginia Workers Compensation Commission. Often, I have been asked to review adverse decisions by the Commission for a possible appeal. More likely than not I have to decline representation. These are the reasons why:

The Claim for Benefits. When there is an injury at work, the claimant is required to file a Claim for Benefits with the Commission. The Commission will issue a 20 day Order to the insurance company requesting a response. If the claim is denied, it will be scheduled for a hearing before a hearing commissioner.Evidence. The Commission issues an instruction requesting the claimant to file all of his/her evidence that supports the claim with the Commission. This usually means "all" medical evidence has to be filed with the Commission prior to the hearing.

Discovery. Each side is allowed under the Commission Rules to discover prior to the hearing everything that party wants to know about the other side?s case. This is usually done by written questions called "interrogatories" and by "depositions." A deposition is testimony under oath in front of a court reporter prior to the actual hearing about the case. The deposition allows either side to know exactly what a witness will be testifying to before trial.

Medical Evidence. Most of the time doctors do not go to the hearing. The Commission allows medical evidence to be filed by written reports. If there still is a question about the medical evidence, either party can take a doctor?s deposition and file that deposition as the doctor?s evidence in the case. The main reason doctors do not go to the hearing is the expense.

Hearing. At the hearing no argument is allowed. The hearing is just for the purpose of submitting evidence. As indicated above, the medical evidence is submitted by written reports. The claimant and his witnesses testify under oath and the insurance company will have its witnesses testify under oath.

The Decision. The hearing commissioner will issue his/her decision in writing some time after the hearing based on the medical records and the testimony at the hearing.

Appeal. If either side disagrees with the decision, there is a right of appeal to have the hearing commissioner?s decision reviewed by three (3) commissioners. But on the appeal, no "new" evidence is allowed. The appeal only considers the evidence that was submitted to the hearing commissioner.Standard for Review of Appeals. On appeal, there are some standards the Commission has adopted over the years. One critical standard is that the three (3) commissioners will almost never second-guess the hearing commissioner on credibility decisions. This is so because the hearing commissioner is the only one who actually hears "live testimony" and is able to consider the "demeanor" of the witnesses. Another critical standard is that the claimant has the "burden of proof." This means the claimant has to prove at least by a preponderance of the evidence (at least 51%) that he/she should win. If the evidence is not there or incomplete, the claimant loses.

My Review. Thus, if the claimant comes to me with an adverse decision based on credibility, I have to tell the claimant I decline representation due to the above Standard of Review. Also, if the claimant loses because the evidence is incomplete, I also have to decline representation because evidence cannot be added to the case on appeal.Representation. The biggest mistake claimants make is to do the hearing themselves without experienced representation hoping to correct any errors by an appeal. As Abraham Lincoln once said, he who represents himself has a fool for an attorney. There is just no substitute for not obtaining representation when your claim has been denied and a hearing is necessary. This is my advice. After an insurance company denies the claim, call an experienced Workers Compensation Lawyer right away.

2.     SHOULD YOU APPEAL A SOCIAL SECURITY DISABILITY DENIAL?

Social Security Disability is not available for everyone who has an impairment. If you are under age 50 and are still capable of some kind of employment in the national economy then you probably cannot get Social Security Disability. What you can do is contact your state Department of Rehabilitation and seek help in obtaining retraining or job placement. This service should be free for anyone who has an impairment. Of course, if you are still working and making $840.00 or over then you are presumed not to be disabled.

If you are over 50, then proving disability gets somewhat easier. However, your age really does not help you until you are 55 or over. If you are 55 or over, have a severe impairment that prevents past relevant work (PRW), then you are a better candidate for disability. If you have less than a high school education, are over 55, and have only a history of unskilled work, then you are even a better candidate for disability provided you have a severe impairment. As the above discussion shows, when applying for Disability, it is better to be older than 55, uneducated, and have no skills. If you lack any of these, then the case for Disability becomes harder. Alternatively, it is also helpful if the skills you acquired from your work are job specific and are not readily transferable to other occupations.

Of course, there are those cases in which the impairment is so severe that all employment is precluded even though the claimant is young or highly skilled or highly educated. But most cases involve claimants who because of their impairment cannot do their past relevant work (PRW). Then the Big Question becomes can they do other light work or perhaps sedentary (sit down work) in the national economy despite their impairment.

Where an individual case fits in the process can be determined by an experienced Social Security Attorney. He or she can evaluate the case and advise whether or not it is worth going forward.

3.     TEN SOCIAL SECURITY DISABILITY MISTAKES TO AVOID

1. YOU MUST APPLY FOR DISABILITY AFTER YOU STOP WORKING. If you stop working due to a disability, then you need to apply. Social Security only gives you a window of opportunity to apply. Usually, this is five (5) years but if there is a gap in your work record it can be much shorter like one (1) or two (2) years. This is often a problem with housewives who drop out of the work force for a number of years to raise children.

2. YOU MUST HAVE ENOUGH QUARTERS OF WORK. If you have worked very little and Social Security says you do not have enough quarters, you may have to continue working in order to gain enough quarters to qualify.

3. YOUR DISABILITY MUST LAST MORE THAN TWELVE (12) MONTHS. If you have a serious injury but you are going to recover within twelve (12) months, you are not going to qualify for Social Security Disability. A prerequisite for Social Security is that you have an impairment that disables you for twelve (12) months or that you can expect will disable you for twelve (12) months.

4. YOU CANNOT BE WORKING WHEN YOU APPLY. If you think you can work part time and qualify for Social Security Disability, you probably are not going to win your case. Social Security considers earned income an automatic disqualifier in most cases. In 2006, Social Security considers $860.00 per month as substantial gainful activity and an automatic disqualifier. So, if you make this amount even working part time, you cannot qualify for Disability. Also, even working part time, shows you have the ability to work.

5. THE SOCIAL SECURITY DOCTOR WILL PROBABLY NOT DECLARE YOU TO BE DISABLED. Assuming a Social Security Doctor will examine you and agree you are disabled is a common misconception. Most often Social Security Doctors rush people through like an assembly line. The exam is often very cursory and the examiner may not have the medical expertise to really understand your ailment. Usually, they give very little credence to subjective complaints.

6. YOU FAIL TO FILE A TIMELY APPEAL OF A DENIAL. Only about a third of claimants are granted at the initial level. After a denial you have 60 days to appeal. Your case cannot be given additional consideration unless you appeal.

7. YOU FAIL TO GET MEDICAL TREATMENT. Failure to obtain consistent treatment for your ailment is a common problem. Most social security judges will give little credence to an ailment that you have not sought medical treatment for. Thus, if you have a chronic pain complaint, you should at least make an attempt to manage the pain through a pain clinic or some other approach.

8. YOU FAIL TO HAVE YOUR OWN DOCTOR'S SUPPORT. Social Security Rules give a lot of weight to a well written opinion by the claimant's own treating physician. Thus, if you believe you are disabled, you need to first consult your own physician for his/her opinion.

9. YOU FAIL TO CONSULT A SPECIALIST. It may be well and good to have an opinion from your family doctor but if you have an impairment that requires the opinion of a specialist then you need to see one. For example, a lung problem may require a breathing test and the opinion of a pulmonologist. A heart problem may require a stress test and the opinion of a cardiologist.

10. YOU FAIL TO CONSULT A SOCIAL SECURITY SPECIALIST. Social Security Law is a unique area of the law. If you have a brain tumor you would not see a family doctor you would see a specialist. Likewise, for Social Security Disability you need to see an attorney who specializes in that field.

IN SUMMARY, many of the above mistakes listed above can be avoided if the claimant consults early on with an attorney who is a specialist in Virginia Social Security Disability law.

4.     TEN VIRGINIA WORKERS COMP MISTAKES TO AVOID

I have been practicing Workers Comp Law for 30 years as a Virginia Workers Compensation Lawyer and these are the mistakes I see claimants repeat again and again which often means a denial of their comp claim.

FIRST, many claimants fail to report an injury right away thinking it is trivial or that they will shake it off. Many claimants do this because they don't want to be fired. However, many employers have a policy requiring reporting of an injury immediately to a superior within 24 hours. If a claimant violates this policy, the employer will usually deny the claim. Also, the Virginia Workers' Compensation Law requires reporting of an accident to an employer within 30 days of the accident.

SECOND, many claimants delay going to a doctor for an injury. This can be a big mistake because most employers only acknowledge an injury if the claimant goes to a doctor. Moreover, the longer one waits to go to a doctor, the more difficult it can be for the doctor to link the impairment to the accident.

THIRD, most claimants provide the adjuster a recorded statement about the accident without obtaining professional advice. If there is a problem with the claim, the adjuster will use the recorded statement to pin down the claimant's version of the story without the claimant knowing he or she even has a problem.

FOURTH, many claimants think they can switch doctors. The law requires the employer or its insurer to provide a panel of three doctors to the claimant. From that panel, the claimant is required to pick his/her doctor. Once this doctor is chosen then the doctor becomes the treating doctor for the claim. It is then very difficult to switch doctors.

FIFTH, many claimants settle their claims without knowing the real value of the claim. Every claim has the potential for lifetime medical coverage and 500 weeks of compensation in Virginia. The claimant needs to speak to a knowledgeable workers' compensation attorney before settling any claim.

SIXTH, many claimants go to a hearing without an attorney. They do not know the insurance company will always be represented by an attorney. They do not know their claim may involve technicalities that will lose them their claim. Many think if they lose they can always appeal and then obtain an attorney. Of course, this violates the old saying that says "he who represents himself has a fool for an attorney." They also do not know that mistakes made at the hearing can rarely be corrected on appeal because no "new evidence" is allowed on appeal.

SEVENTH, many claimants think the claims adjusters or the insurance company nurse or the insurance company rehabilitation worker is working for them. They don't realize they are in an adversarial relationship and that any confidences they volunteer can be used against them.

EIGHTH, even if the insurance adjuster accepts the claim the claimant has to be careful. The adjuster will be sending the claimant an AGREEMENT TO PAY form. The claimant has to check to make sure all the injuries he/she has suffered in the accident are recorded on the agreement form. If they are not, then the injuries left off can be lost if they are not added to the claim within two years of the accident. For example, often an arm or shoulder injury will mask a neck injury. If the neck injury is not recorded, then it can be lost even if the doctor is treating the neck injury.

NINTH, many claimants do not realize the insurers may continue to investigate a claim even after the claim has been accepted. Especially, if the claimant is on compensation for "chronic pain," the insurers will often have the claimant secretly videotaped hoping to show the claimant doing activities demonstrating he/she is not disabled.

TENTH, many claimants do not realize once they are released to light duty work the insurers will try to have the claimants placed in light duty work. They will first try to place the claimant back with the original employer. Next, they will hire a vocational rehabilitation specialist to place the claimant in alternative light duty work. Many claimants do not realize they have to be available from 9-5 five days a week to do a job search with the job specialist. Missed appointments or any failure to cooperate can result in a suspension of compensation.

IN SUMMARY, many of the above mistakes listed above can be avoided if the claimant consults early on with an attorney who is a specialist in Virginia workers' compensation law. If an attorney has been rated "AV" by Martindale-Hubble, you can feel confident you have a representative who has been rated best in his field.

5.     SSI V. SOCIAL SECURITY DISABILITY: HOW THEY DIFFER

Social Security Disability (sometimes called SSDI) and SSI are confused by many people. I have been a Virginia Disability Lawyer for over 30 years. None of my clients know the difference between the programs. These are the most important differences between these programs:

First, in order to obtain Social Security Disability, you must have an earnings record and show you are disabled. Housewives come to me and say "Why cannot I get disability?" I reply, "Where is your earnings record?" Self-employed people call me and say, "Where is my disability?" I respond, "Did you ever file taxes and pay into Social Security?" People who are paid in cash or under the table contact me and request Social Security. I say, "You only get out what you paid in, it is not a free ride."

Second, for SSI, you do not need an earnings record. You only have to show you are disabled. But SSI is a welfare program and even though its full name is Supplemental Security Income it probably should have been called "Welfare Disability." As a welfare program, there is a means test. This means even if you are disabled you cannot receive SSI if you have either assets or income. In 2006, you cannot have more than $2,000.00 in cash assets and expect to qualify for SSI. The same housewife who could not obtain Social Security may also not be able to obtain SSI because (1) she has other unearned income; (2) her husband has too much income; and (3) she or her husband has too many assets.

Third, the Social Security benefit is dependent on the earnings the worker paid in and could be as high as $2,053.00 per month. Many ask me, "Why isn?t my benefit higher?" My answer always is, "You get out what you paid in." Working at a minimum wage job is not going to result in a very high benefit. Not working for a number of years is also going to result in a lower benefit. On the other hand, the maximum SSI amount an individual can receive in 2006 is $603.00 per month but this does not depend on earnings.

Fourth, an individual on Social Security Disability can also expect a payment to dependent children up to age 18 or until the child graduates from high school. The dependent children share equally about 50% of the parent?s benefit. On the other hand there is no dependent care benefit for a recipient of SSI. People on SSI will often call me and say "Where is my child?s check?" Regretfully, I have to tell them SSI has no child benefit.

Fifth, Social Security Disability & SSI are similar in one way. The disability test is the same.

Sixth, when you file for Disability, Social Security will first check if you are eligible for Social Security Disability before allowing you to apply for SSI. Generally, if your Social Security check is higher than $603.00, you would not be eligible for SSI. On the other hand if your Social Security check is lower than $603.00, you may be able to receive a small SSI check so your total benefit is about $603.00 per month.

In Summary, when a person says I am on "disability" or I want "disability", there is a big difference between SSI and Social Security Disability. Remember SSI is a welfare benefit & Social Security Disability is an earned benefit.

6.     Why A Virgina Workers Compensation Lawyer is Necessary

A Virginia Workers Compensation case may often require you to seek legal advice. In my 30 years of experience as a lawyer, some of those reasons.

ACCIDENT: A good lawyer can tell you if what happened to you constitutes a compensable accident under Virginia law. For example, repetitive lifting is not a compensable accident under Virginia law.

DISEASE: If you have a disease the lawyer can tell you what you will need to show in order to make your disease compensable under Virginia law. For example, carpal tunnel syndrome can be compensable under Virginia law but you have to overcome a number of evidentiary hurdles.

DOCTOR: The insurance company wants you to go to see its doctor. The lawyer will advise you about this and the three doctor panel rule in Virginia.

RECORDED STATEMENT: The adjuster after hearing about your accident wants to take a recorded statement. Do you have to give a statement? The lawyer can explain this to you.

DENIED: Your claim has been denied. Now what? Should you get a lawyer? It is essential that you obtain a lawyer as possible. Waiting is a big mistake. The lawyer may have to do discovery to find out why the claim was denied and what evidence is necessary for a winning case.

HEARING: There is a dispute and now the Commission has scheduled your case for a hearing. Should you now get a lawyer? There are timelines for discovery as indicated in the prior note. Waiting until a few days before the hearing is not a good idea.

RETAINER FEE: Will I have to pay an attorney a big retainer fee? If you have a good case, the lawyer may be willing to take your case on a contingency fee so a retainer fee may not be necessary.

PERSONAL INJURY: My workers? comp case also involves a personal injury case. A lawyer is necessary to sort this out and obtain the maximum benefit for you under both claims.

APPEAL: You lost the case. You failed to get an attorney. You should immediately have an attorney review the decision. You may be able to retrieve something in the appeal.

SETTLEMENT: I just want to settle my case and I don?t want to pay an attorney. Why should I get one? The biggest problems are (1) you don?t know the value of your claim; (2) you don?t know if there are serious problems with your claim; (3) you don?t know if the insurance company can defeat your claim; (4) you may want a million dollars ($1,000,000.00) for your injury but is this achievable; and (5) you may be able to negotiate a reasonable fee with the lawyer.

SUMMARY: There are many reasons to have an attorney review your workers compensation case. I have listed some of the reasons.

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