Birmingham Personal Injury Lawyer - Alabama

Won Your Workers Compensation Case? Not so Fast

Jon Lewis — Tue, 24 Nov 2009 13:02:11 GMT

What are the insurance companies doing now? They are using "Utilization Review" in order to cut off workers compensation benefits. How does that work?

Well, the Alabama Workers Compensation Act allows for "Utilization Review". That means that the workers compensation insurance carrier can submit your medical records to a third party physician to review and determine if they are related to the injury. If that third party physician says, "No", the workers compensation carrier cuts off the injured employee's benefits.

How does this work in practice? Take my client for example. She had surgery approximately ten (10) years ago. Her workers compensation case was settled, and her medical was left open for future treatment. Typically, that is what happens in workers compensation cases. The person receives medical treatment for the related injuries for the rest of her life.

For ten (10) years, my client has been receiving prescriptions and medical treatment for her injuries. Out of the blue, the insurance carrier sends her records to a foreign doctor in El Paso, Texas who opines that her injuries and medical treatment are not related. So, the insurance carrier, under the "utilization review" provision, cuts off her medical treatment.

Why did they wait ten (10) years? How can this doctor supersede my client's local doctor's opinion when he hasn't even examined her. Shouldn't the "Authorized treating" physician have the final say? The insurance carrier approved her "Authorized Treating" Physician.

This is ridiculous and unfair, but that is how the insurance industry works. Insurance covers everything but the loss. All they want is their money and to hell with everything else - morals, humanity, sympathy, kindness, and generosity. It is all about the bottom line. People talk about "greedy trial attorneys" when they should be talking about "greedy insurance companies".

Originally posted at InjuryBoard by Jon Lewis

Homicides Predict Traffic Deaths

Jon Lewis — Sun, 22 Nov 2009 12:42:37 GMT

Do State Homicide rates predict traffic fatalities? According to a University of Michigan study, they do. The study found that there was a parallel with the number of homicides and the number of traffic deaths. What seems to be the reason for this? Aggression.

The study looked at ten factors and "found that seven of them accounted for 71 percent of the variance in traffic fatality rates." Those seven are "homicide rates, proportion of male drivers, proportion of older drivers, number of alcohol-related liver failures (as a proxy for intoxicated driving), density of physicians, seat-belt use rate, and income." Apparently, the strongest predictor of these seven are homicides because homicides relate to aggression which relates to aggressive driving.

What does this teach us? We need to respect others on the roadways. We can't be in a hurry all of the time. We cannot drive while we are doing several other things: texting, playing with the radio, putting on makeup, using the telephone, changing CD's, and having too much noise and distractions in the car. We need to realize that we share the road with others, and we need to understand that different people have different driving styles just as different people have different psychological makeups.

During this holiday season, think before you act. Take a few miles per hour off your speedometer. Leave a little early for that appointment or meeting so you aren't in a rush. Be more passive on the roadways, and maybe you will save a life.

Originally posted at InjuryBoard by Jon Lewis

SSA Fugitive Felon Program Gone Bad

Stuart McAtee — Thu, 19 Nov 2009 11:07:37 GMT

It appears the "Fugitive Felon" program had some issues and precluded benefits to rightful recipients. A federal judge approved a civil-court settlement requiring the Social Security Administration to repay $500 million to 80,000 recipients whose benefits it suspended after deeming them fugitives.

The supposed fugitives include a disabled widow with a previously suspended driver's license, a quadriplegic man in a nursing home and a Nevada grandmother mistaken for a rapist.

According to an article in the Wall Street Journal, they were among at least 200,000 elderly and disabled people who lost their benefits in recent years under what the agency called the "Fugitive Felon" program. Launched in 1996 and extended to Social Security disability and old-age benefits in 2005, the program aimed to save taxpayers money by barring the payment of Social Security benefits to people "fleeing to avoid prosecution."

But some federal courts in recent years have concluded that most people the agency identified as fleeing felons were neither fleeing nor felons. The problem: Social Security employees relied on an operations manual stating that anyone with a warrant outstanding is a fugitive felon, whether the person is actually fleeing or attempting to avoid being captured.

The Social Security Administration, which neither admitted nor denied wrongdoing as part of the settlement, declined to comment.

The National Senior Citizens Law Center, an advocacy group for the elderly and disabled, sued the Social Security Administration in an Oakland, Calif., federal court last year on behalf of people denied benefits, and asserted that most warrants -- some decades old -- were for minor offenses and most people were unaware they existed.

Let's hope all of the valid recipients are compensated.

Originally posted at InjuryBoard by Stuart McAtee

SSD Questions About Going Back To Work Later In Life And Short Term Disability

Stuart McAtee — Tue, 10 Nov 2009 14:58:13 GMT

From time to time, we receive questions from potential clients about various subjects regarding Social Security. As our nation ages, more elderly workers are re-entering the work force and they sometimes have questions about withholding, Social Security, and taxes. If you are returning to work, after age 65 for instance, your employer must withhold FICA taxes from your paycheck no matter how old you are. Although you may have been retired, you do receive credit for those new earnings according to the Social Security Administration. Each year Social Security automatically credits the new earnings and refigures your monthly benefit. If your new earnings are higher than in any earlier year used to calculate your current benefit, your monthly benefit could increase.

Another question sometimes asked is about short-term disability. What if a worker will only be disabled for a short period of time(for instance Maternity Leave)? Can a person qualify for SSD benefits for short term disability? In a nutshell, no. Social Security pays only for total disability—conditions that render you unable to work and are expected to last for at least a year or end in death. No benefits are payable for partial disability or short-term disability, including benefits while on maternity leave. The disability evaluation process considers any current work activity you are doing, and your medical condition and how it affects your ability to work. For more information, go to www.socialsecurity.gov/pubs/10029.html

Originally posted at InjuryBoard by Stuart McAtee

Loser Pays - A Bad Idea

Danny Feldman — Tue, 10 Nov 2009 07:53:15 GMT

When I was a law student at Vanderbilt, a contracts professor asked a question about whether the "loser" to a lawsuit should be required to pay the "foreseeable costs," ie. the winner's attorney fees. I argued "yes" given that the costs were foreseeable. I was wrong.

This argument, loser pays, really is nothing more than a way for business, insurance companies etc. to shut the doors to the courthouse to the vast majority of Americans who could never be able to afford to pay the tens or thousands of dollars that the other side may incur in attorney fees. Indeed, the reason why contingency fee contracts are regularly employed when representing injured persons is that those persons can't afford to pay their own lawyers an hourly rate. For example, a truck crashes into you, putting you in the hospital for months and causing you to lose your job and health insurance - how in the world will you be able to pay the other side's legal fees if you end up losing the case - and it must be remembered, that even when you are rear-ended, juries can still return a verdict for defendant.

In Alabama, the scale already is tipped very unfairly in favor of defendants. Under ARCP 68 a defendant may file an "Offer of Judgment" which plaintiff has 10 days to accept. If plaintiff does not accept the offer and if at trial, plaintiff does not receive a verdict in excess of the offered amount than plaintiff is on the hook for defendant's costs incurred after the Offer of Judgment was made. In other words, if defendant files an offer of judgment of $10,000 and the jury returns an award of $9,000 for plaintiff, the Court may tax costs (say $5,000) against plaintiff despite the fact that the jury returned a verdict in plaintiff's favor. There is no similar provision in the law that allows plaintiff to make an offer of judgment whereby defendant is on the hook for plaintiff's costs incurred if the jury returns a verdict for plaintiff in excess of what plaintiff offered to settle for. Nor does the rule allow plaintiff to collect costs against defendant if a jury returns a verdict in excess of what defendant offered. How's that for fairness?

As a matter of practice, I would be very surprised if an Alabama judge would enforce Rule 68 as described above, although they could. In addition "costs" do not include attorney fees, but rather are limited to actual costs incurred, like deposition bills, mileage etc. Of course, even costs can run up into the thousands of dollars very quickly, and it is the client that is on the hook for costs. So, you've got to tell your client, not only can you lose, but you also can lose and owe the other side thousands of dollars.

There are several other reasons why "loser pays" is a bad idea - but shutting down the courthouses to the vast majority of Americans is enough.

Originally posted at InjuryBoard by Danny Feldman

What Is This Statement from Social Security and Why Do I Keep Getting It?

Stuart McAtee — Sun, 01 Nov 2009 15:11:53 GMT

Recently, I recieved a Social Security Statement in the mail because my birthday is fast approaching and I meet certain criteria to receive such a statement. If you're age 25 or older, pay Social Security taxes and are not yet receiving monthly benefits, you should get an automatic Social Security Statement in the mail each year about two to three months before your birthday. The statement is a valuable tool to keep track of your annual earnings, as well as to help you plan your financial future. Read Article: www.times-standard.com/lifestyle/ci_13339858

But if your earnings don't meet the threshold for filing a federal tax return, you might not be receiving your annual Social Security Statement. However, you're probably entitled to one.

Everyone who has worked and paid Social Security tax is entitled to receive a statement. So, if you don't get one automatically in the mail, you can request one from Social Security -- and the easiest way to do that is online.

Just visit www.socialsecurity.gov/mystatement and click on the “Need to request a Statement?” banner. You'll need to fill in the following information to make your request:

-- Your name as shown on your Social Security card

-- Your Social Security number

-- Your date of birth

-- Your place of birth

-- Your mother's maiden name (last name only, to help identify you).

You also can provide the following information to make your estimate more accurate:

-- Your last year's earnings and an estimate of your current and future earnings.

-- The age you plan to stop working.(for most this may be difficult)

Once you make your request, Social Security will mail you a statement, which you should receive within two to four weeks. Give it a careful look to make sure your earnings and information are reported correctly, and contact Social Security if you find anything amiss.

After you review your statement, it's a good idea to keep it with your other important papers. And if you'd like to go one step further in your retirement planning, visit the online Retirement Estimator at www.socialsecurity.gov/estimator, where you can get an instant estimate of your future benefits based on your earnings record and plug in various retirement age scenarios. More information is also available at www.socialsecurity.gov.

Originally posted at InjuryBoard by Stuart McAtee

SSA Announces No Payment Increase for 2010

Stuart McAtee — Thu, 15 Oct 2009 11:57:32 GMT

As I have blogged about before, President Obama released extra payments earlier this year to millions of disabled Americans. For 2010, the outlook doesn't look good for a cost of living increase based on the Social Security Administration's denial of increased benefits for the upcoming calendar year. CNN is reporting no increase will occur: money.cnn.com/2009/10/14/news/economy/obama_seniors_payment/index.htm

It marks the first time that Social Security benefits have not been increased year over year since the cost-of-living adjustment was put into effect in 1975. To help counterbalance that, President Obama is calling on Congress to send another $250 relief payment to 57 million seniors and other Americans to stem the economic strain.

Congress approved $250 emergency payments as part of the $787 billion economic recovery act that lawmakers passed in February.

"Even as we seek to bring about recovery, we must act on behalf of those hardest hit by this recession," Obama said in a statement Wednesday. "That is why I am announcing my support for an additional $250 in emergency recovery assistance to seniors, veterans, and people with disabilities to help them make it through these difficult times."

As with the first $250 emergency payment, the second one would be exempt from income tax, a senior administration official said in a call with reporters.

If approved by Congress, the payments would be sent out in 2010, most likely in the first half. "It wouldn't be late in 2010," the administration official said. The measure would cost $13 billion over 10 years, according to White House estimates. The $250 is roughly equal to a 2% increase in benefits for the average Social Security beneficiary.

Let's hope President Obama's efforts to help those in need will pay off.

Originally posted at InjuryBoard by Stuart McAtee

I've Been Denied For SSD, Now What?

Stuart McAtee — Thu, 24 Sep 2009 10:59:38 GMT

In our Social Security Disbility(SSD) Practice, we see clients who have been turned down for their initial application for SSD and simply give up or keep re-applying for their benefits. If your social security disability claim was denied, should you just apply again? No.

A person(claimant) should not submit another social security disability application after he/she does not initially receive approval for benefits. Many people who wish to have their case reviewed again mistakenly apply again. The appropriate next step is to file an appeal. Having your case reconsidered will be your first step in the appeals process. A claimant must file the appeal to have his case reconsidered within 60 days of receiving notification that his initial claim was not approved. You will then appeal for a hearing, after your claim is reconsidered and denied. Having your case heard before an administrative judge offers one last chance to plead your case and allows the judge to comprehensively review your file and all supporting items. If you simply keep filing a new claim that goes through the initial review process, your case never gets to be heard by a judge. Not appealing adds tremendous and unnecessary time as you await a decision that is likely to not be in your favor, given that your claim was already denied at the initial review process stage. You will be back where you started. Appealing gives your case the best chance of approval.

If you have been denied, please give us a call within sixty(60) days to have us look at appealing your denial.

Originally posted at InjuryBoard by Stuart McAtee

Non-Solicitation of Cases - Is it ever going to be enforced?

Danny Feldman — Sat, 19 Sep 2009 12:24:16 GMT

I went to a seminar yesterday and listened to someone from the State Bar speak about lawyer ethics, non-solicitation, rules regarding advertising and solicitation etc. and frankly, after hearing this talk, it left me – well, let's say, grouchy and irritable. Why?

I don't know about the rest of the nation, but in Alabama, it is considered to be unethical and the Rules of Professional Conduct prohibit the "running of cases." Attorneys are not supposed to contact people who have just been in a wreck or otherwise injured, absent some very limited and specific exceptions. Attorneys are not supposed to "buy" a case etc. Yet, we all know it goes on, everyday. In fact, you can bet that when there is a "big-case" a tractor trailer crash involving death or very serious injuries, so called "investigators" are at the scene or in the hospital steering injured people or grieving family members to attorneys who are there to "help" them.

Please allow me to digress and give some caveats - first, defendants (trucking companies and their insurers) are not prohibited from immediately contacting injured people and often defendant’s investigators are at the scene of a wreck at the same time emergency personnel are arriving. These investigators often obtain statements in the hospital and push people to settle their cases early on - so the defendant's side is certainly not immune from criticism. Second, early investigation does help in preparing a case and getting at facts that may get gone soon (tire tracks in a median or skid marks on the roadway that are washed away in the next rain). So, whether or not running/investigating cases early on should be prohibited (as it is in Alabama) or not prohibited (as I understand is the case in the District of Columbia) is a debate for a different day. Finally, I am sure that many cases that get run are, in fact, handled by highly skilled and competent attorneys that do a good job for their clients.

However, as regards those jurisdictions where "running" is prohibited, we all know it happens, routinely, and often on the most lucrative, most desirable plaintiff cases (big injury/strong liability/solvent defendant). Further, just as we know steroids work - athletes don't use steroids because they have nothing else to do; they use it so they can improve their athletic performance, hit 60 home runs in a year and turn in other remarkable feats - so too, do lawyers run cases - it works. They get the best cases and make the most money - period. And, they are able to do so because they know that the chances of getting caught and paying a real price for their behavior are virtually nil.

In fact, during the recent seminar, the speaker from the Bar spent the first couple of minutes talking about how extremely difficult it is to prove that a lawyer is running the case because the link between the runner and the lawyer often is tenuous. Maybe so. Or maybe the Bar does not have the tools it needs to really enforce the rules against non-solicitation. Or maybe it’s just easier for the Bar to look the other way. Maybe all the above. Frankly, I don't know.

But I do know this - after the first very few minutes talking about the real problem - running cases - I listened to the Bar speaker spend the bulk of his time talking about highly detailed and specific rules aimed presumably at addressing who knows what perceived issue. For example, I heard alot about a rule which allows me to buy an ad in my son's football program and display my business card only (name, address and contact info - nothing more) but prohibits me from stating my practice area (PI) unless I include the mandated disclaimers - and I realized that many of the rules and enforcement of same are just downright silly. I understand that it’s easy to look at a paid advertisement in a school program and see whether it does or does not meet the requirements of the rule cited above. But really, who cares? What possible difference does it make for the Bar to be spending a minute of time and effort on that, when the real issue of lawyers running cases contimues unabated?

Assuming that the Bar and the profession really believe that solicitation of clients is detrimental to the practice of law and needs to be prohibited, then we ought to act like it and root out and punish the lawyers that engage in it. Unless and until that is done, some lawyers will continue to play by the rules and some will not. The ones that run cases will be just like the athletes that cheat, that use steroids and other performance enhancing substances (albiet illegal) - they will turn in remarkable feats - they will do very well. The ones that don't will do the best we can, at a significant competitive disadvantage.

Originally posted at InjuryBoard by Danny Feldman

Social Security Benefits- They're Not Just For Breakfast Anymore

Stuart McAtee — Fri, 18 Sep 2009 12:00:16 GMT

Why is it that U.S. workers who lose their jobs, or are disabled, can expect less government financial support than those in Europe or Japan? Most likely it's a reflection of centuries-old beliefs about the role of government and who is deserving of aid.

Here are some questions and answers about how the U.S. system came to be, gleaned from interviews with historians and economists and information from the U.S. Social Security Administration:

HOW DID U.S. SOCIAL SECURITY EVOLVE?

According to a recent Reuters article, The Social Security Act of 1935, which included unemployment insurance and old-age assistance, was enacted in the midst of the Great Depression, when unemployment peaked above 25 percent.

President Franklin Roosevelt summed up his reasons for signing the law as follows:

"We can never insure 100 percent of the population against 100 percent of the hazards and vicissitudes of life, but we have tried to frame a law which will give some measure of protection to the average citizen and to his family against the loss of a job and against poverty-ridden old age."

The United States was slow to embrace social security. By the time the 1935 program was adopted, 34 other countries already had some sort of social insurance program.

In the years before the Social Security Act was signed, populist movements were already popping up all over the country, mostly demanding pensions for the elderly.

One such idea in California, colorfully dubbed the "Ham and Eggs" movement, advocated giving the elderly $30 each Thursday. Critics ridiculed it by conjuring up images of an elderly couple enjoying a big breakfast of ham and eggs when the money arrived, but it caught on among supporters and the name stuck.

Helping the elderly was one of the first social programs to gain popular support in a country that was generally opposed to welfare and looked down upon those who took government handouts. That attitude was softened when it came to retirees who had already put in their years of work.

It was decades later before Social Security was expanded to include disability insurance, and Medicare, the health care program for the elderly. As we now know, SSD benefits are crucial to those Americans in need of assistance who are unable to work.

The U.S. Social Security Administration historian Larry DeWitt offers a thorough review of social security here: here

Originally posted at InjuryBoard by Stuart McAtee