Saturday, February 6, 2016

What if your Virginia Social Security Disability is cut off?





DISASTER: YOUR VIRGINIA SOCIAL SECURITY HAS BEEN CUT OFF!

 Bad news! You fought long and hard to win your disability but now the government says you have "improved" and you are no longer disabled. What can you do?

1.  You need to file for a Reconsideration. This will challenge the decision that you are no longer disabled.

2.  You must file for the Reconsideration within ten (10) days of the date of the cutoff notice. This will ensure your benefits will continue until the next decision. You have 60 days to file for the Reconsideration but unless you appeal within the ten (10) days your benefits will not continue.

3. The government "must" show there has been "medical improvement" in the condition that led to you being declared "disabled" in the first place. The crucial date is the date of your prior favorable decision. The government must show there has been sufficient improvement in your condition on that date and now to allow you to work.

4. There are exceptions. Even if there has been no improvement but you are "working" and you have exhausted your trial work period, then this work can cost you your disability benefits. 

5.  Another exception is if you were scheduled for a consultative examination (CE) by a doctor and you failed to attend, this can cause a cutoff of your benefits despite the fact the government has not shown any "medical improvement" in your disability.

6.  One quick way to defeat the Cutoff is if you are enrolled in a state rehabilitation program. In Virginia this would be DARS.

7.  Contact a Virginia Social Security Disability lawyer right away.

In summary, if your disability check has been cut off, you must act quickly. For more information check this websiteVirginia Disability Lawyer or call Jerry Lutkenhaus at 804-358-4766 or 1(800) 256-8862.

Thursday, December 31, 2015

Why a Repeitive Injury at Work is not compensable as a Workers' Compensation Claim in Virginia

You are injured at work so you would naturally expect to receive compensation under the workers' compensation laws. In Virginia, if is a repetitive trauma injury, you will not be successful.

In Virginia you can be compensated for an injury at work or for an occupational disease. Unfortunately, the Virginia Supreme Court in a series of decisions in 1996 decided an injury resulting from repetitive trauma was "not compensable" as either an accident or as a disease. Thus, injuries such as tendonitis, back injuries, knee injuries, neck injuries, and knee injuries that occurred over a period of time (even though occurring at work) were not compensable.

In a reaction to the Virginia Supreme Court decisions, the Virginia legislature met in 1997 to decide whether any repetitive injuries should be compensated under Virginia's workers' compensation laws. The legislature decided to amend Virginia Code Section 65.2-401 to provide limited coverage for two types of repetitive trauma problems: hearing loss and carpal tunnel syndrome caused by work. However, the General Assembly said these problems could be compensated under the Workers' Compensation Act but only if the conditions were proven by "clear and convincing evidence"  as having developed from the work place environment. In other workers' compensation cases in Virginia  claimants only need to prove their cases by a mere "preponderance" of the evidence.

In an early study of carpal tunnel cases after the 1997 amendments only 16% of claimants were successful in proving their cases under the "clear and convincing" evidentiary standard.

So, the following activities causing injury would not be compensable under the Virginia Workers' Compensation   Act:

*lifting over a period of time with resulting neck or back injury;

*typing  at a computer with resulting carpal tunnel syndrome (unless can qualify under the clear and
  convincing evidence standard;

*hand or arm  problems resulting from repetitive activity at work;

*stocking shelves over a period of time resulting in any orthopedic injury;

*standing, kneeling, crouching or sitting for a period of time.

In summary, even though a worker in Virginia has suffered an injury at work, the claim may still be denied if the injury is caused by repetitive trauma and not by a specific accident. For example, if a worker lifts 40 boxes in a work day and wakes up the next day with a back aches, the worker does not  have a winning claim in Virginia. On the other hand if the worker lifts box number 40 and feels a sharp pain then the worker may have a winning claim.

For more information contact workers' compensation lawyer Jerry Lutkenhaus (804) 358-4766 or visit Virginia Workers' Compensation Lawyer.

Sunday, December 13, 2015

The 5 Winning Points to Make to the Social Security Judge

I have represented claimants in over 1,000 Social Security Disability hearings. These are some suggestions about the claimant's testimony before the judge:

First, if you have a case that involves chronic pain you are going to be asked what is your pain level on a 0 - 10 scale. If you claim it is a ten, then be aware if your medical records show you have always told your doctor it is a five or six. The judge will then say you have no credibility.

Second, in almost every case, you will be asked how long you can sit, how long you can stand, and how much you can lift. Again, this should be consistent with your medical records. This is especially the case if your doctor has completed a functional capacity evaluation on your residual ability to do various activities. You need to review this before the hearing.

Third, you will be asked about the side effects of your medications. This could be important if the side effects are disabling. However, you need to make sure the side effects are side effects that result from the particular drug. Also, even though you are taking a drug that could cause side effects it does not mean it causes side effects in your case (especially if you have never complained about these drugs in the medical records).

Fourth, you need to tell the truth about everything. Most likely, the judge will be very familiar with your medical record. Thus, if you exaggerate your complaints and this is contradicted by the medical record then the judge is not going to believe you. Also, if a friend or relative testifies for you, you need to make sure you and the witness are on the same page. It is not going to do you any good if the friend says you ride motorcycles with him when you claim to be bedridden.

Fifth, often a vocational expert will testify at your hearing. It is important that the consultant hears your testimony. Generally, he or she will be a neutral witness. The vocational consultant will be asked to state the skill level and strength level of all the jobs you have done in the last 15 years. Then the judge and perhaps your lawyer will ask the consultant a series of hypothetical questions. Often, the first question will ask the consultant to assume you have the same restrictions that have been previously stated by Social Security. This will of course elicit a response that you can do either your past relevant work or some form of light duty work. Hopefully, there will be additional questions to the consultant based on your impairments and your testimony that will result in positive answers from the consultant that will help you win your case. One question would simply be if you are credible about your complaints would the expert rule out all jobs.

In summary, these are five suggestions about testifying before a judge. The judge will decide the case largely on the medical records but your testimony can help your case. For more information about Virginia workers' compensation or Social Security Disability call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers' Compensation & Disability Lawyer.

Thursday, November 26, 2015

Virginia Workers' Compensation & the Employer's Application for a Hearing

You are injured and cannot work. You are receiving workers' compensation weekly payments and medical coverage. Then you receive an Employer's Appilcation for a Hearing. What does this mean?

First, it means your weekly compensation payments are suspended.

Second, your medical coverage may continue.

Third, it does not mean your payments are permanently cut off.

Fourth, most of the time a medical report will be attached to the Employer's Application saying you have recovered from your injury (or in some cases that you have returned to work).

Fifth, if your treating doctor has returned you to work, then there may be no defense to the Employer's Application.

Sixth, however, many times the report will "not" be from your treating doctor rather it will be from a so-called independent medical examiner. One thing you can be sure of the doctor of examiner is not going to be "independent" at all. Instead, the insurer will procure this examination because the treating doctor has not returned you go work soon enough.

Seventh, despite the fact the medical release did not come from the "treating doctor" but rather an outside doctor the Senior Claims Examiner may find it constitutes "probable cause" and forward it for   a hearing which means the suspension of compensation will continue.

Eighth, the injured worker has 15 days in Virginia to respond to the Employer's Application. Most of the time the best response is an updated report from the treating doctor which shows the "independent  doctor" is wrong and the worker is still under a disability. If the treating doctor can write a "home run" report the Senior Claims Examiner may deny "probable cause" and refuse to refer the Application for a hearing (which means compensation payments will have to resume).

In summary, an injured worker who receives an Employer's Application for Hearing still has rights and can contest the Application. Of course, the worker needs to contact an experienced Virginia worker's compensation lawyer immediately.

For more information about this or any Virginia workers' compensation problem, contact Jerry Lutkenhaus at 1-800-256-8862 or visit my website at geraldlutkenhaus.com.

Virginia Workers' Compensation Advanced Lawyers Retreat & Marijuana

Recently, I attended the Virginia Workers' Compensation Advanced Lawyers' Retreat in Richmond, Virginia. The conference was highlighted by a presentation by a VCU toxicologist. One of his points was marijuana could stay in your system for a long time. This of course can cause a problem for many workers who are injured on the job. Many employers will require the injured worker to take an immediate urine test when they are injured. Also, many employers have a zero tolerance level for illegal drugs. As a result, a positive test could easily result in termination of employment due to the violation of the drug policy. But the toxicologist pointed out a positive marijuana test does not prove one is under the influence of marijuana at the time of the accident. So, employers cannot say based on the positive test marijuana "caused" the accident based on the test.

One problem is Virginia Code Section 65.2-306 creates a rebuttable presumption that if one tests positive for marijuana then one is "presumed intoxicated" at the time of the accident. The injured worker can overcome this presumption by clear and convincing evidence that he/she was not intoxicated at the time of the accident.

Thus using marijuana on the job can have two very bad results:

First, you can be fired for violation of the employer's drug policy. This termination can not only forfeit employment it can be used to cut off workers' compensation if you are released to light duty work after an injury. The reason is the employer cannot give you a light duty job because your employment was terminated for violation of the employer's drug policy.

Second, the employer can try to use the violation to deny the medical bills and any compensation for the accident on the grounds the injured employee was "presumed intoxicated" at the time of the accident.

In summary, the VCU psychologist made the point marijuana can stay in one's system for a long time after use. And as a workers' compensation lawyer, I can say a positive test for marijuana can have dire consequences for one's employment and one's workers' compensation claim.

For more information about this or any Virginia workers' compensation problem contact Jerry Lutkenhaus at 1-800-256-8862 or visit my website at geraldlutkenhaus.com.

Sunday, August 9, 2015

The Upcoming Drastic Cut in Social Security Disability--Avoided

Many on Social Security Disability do not know it but the Disability Trust Fund is running low on money. In fact in 2016, only one year away, the Fund will not be able to pay full benefits. It is expected there may be as much as a 19% reduction in benefits.

This problem is well-known to Congress but nothing has been done to address this issue. The Obama administration has proposed a temporary borrowing from the regular Social Security fund to address this shortfall. Republicans in Congress have not agreed. Many of them regard our disabled workers as deadbeats and slackers who are mooching off of the system. They ignore the fact the disabled workers have all been found "disabled" by the Social Security Administration.

What disabled workers can do is contact their Congressman now about this problem before there is a reduction in benefits.

THIS IS AN UPDATE. CONGRESS AVOIDED THE REDUCTION IN DISABILITY BENEFITS BY ALLOWING FOR BORROWING FROM REGULAR SOCIAL SECURITY RETIREMENT FUND IN THE BUDJET COMPROMISE BILL AT THE END OF 2015.

For more information about Virginia workers' compensation call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.

Insurer Refuses to Pay Injured Worker's Medical Bills in Virginia

In my workers compensation practice in Virginia, I often see workers who were injured at work and the employer's workers compensation insurers have not paid the worker's medical bills. Why is this the case?

First, did the employer know about the injury? Was it properly reported to the appropriate person?

Second, did the employer furnish the injured worker a panel of three (3) doctors from which to choose a doctor from? Did the injured worker choose a doctor from this panel? (In Virginia the injured worker has a right to a panel of three doctors for his/her injury.)

Third, was the treatment (an MRI, physical therapy, prescriptions, etc.) authorized by the doctor from the panel?

Fourth, did the treating doctor send the bill in question with his/her treating note to the insurer? If no the worker can request that this be done.

Fifth, if the injury has been denied by the employer, then the injured worker must file a claim with the  
Virginia Workers' Compensation Commission and consult an experienced workers' compensation lawyer.

For more information about Virginia workers' compensation call Jerry Lutkenhaus at (804) 358-4766 or 1(800) 256-8862 or visit our website at Virginia Workers' Compensation Lawyer.