SSA Issues Final Regulations on Changes to Scheduling Hearings

Byron David Conway, SCAs hearing level workloads continue to grow, SSA is “implementing final rules that will help us provide better service by allowing us to conduct hearings and issue decisions more expeditiously.” 79 Fed. Reg. 35926 (June 25, 2014). These final rules became effective on July 25, 2014. The final rules provide changes in scheduling and notice procedures for hearings, with a focus on video hearings and are essentially the same as the June 2013 notice of proposed rulemaking (NPRM). The one change, recommended by NOSSCR in its comments, is to provide a good cause exception for extending the time to object to appearing at a video hearing or to object to the time
and place of the hearing.

These final rules and the June 2013 notice of proposed rulemaking (NPRM), 78 Fed. Reg. 38610 (June 27, 2013), appear to be an outgrowth of now defunct “secret ALJ” policy, which ended in April 2013. According to the preface to the final rule:

 … [W]e remain concerned that some individuals are manipulating our rules in order to obtain a hearing with an ALJ with a higher allowance rate. As we previously noted, this may be an unintended consequence of our commitment to transparency as we make more information, such as an ALJ’s allowances rates, available to claimants and their representatives. Until the effective date of this final rule, these types of efforts to undermine the random assignment of ALJs have generally been successful….

Our continued concerns about efforts to undermine our rules are not merely anecdotal. At the time of this fi nal rule, we brought and pursued sanction actions against an appointed representative for misrepresenting facts in order to have cases transferred to a hearing office with a higher allowance rate. We have observed some individuals decline hearings by video teleconferencing after learning that the claimant is scheduled to appear before an ALJ with a lower allowance rate. 79 Fed. Reg. 35926.

Time limit to object to VTC hearing. The final rule requires that the claimant be notified prior to scheduling a hearing that the hearing may be held by video teleconferencing (VTC). This will occur before the case is assigned to an ALJ. The claimant has 30 days from the date this notice is received (this is not the official “notice of hearing”) to object to the VTC hearing in writing. The general rule is that if the objection is “timely,” an in-person hearing will be scheduled (see exception below if the claimant changes residence).  The prior regulations provided that an objection to a VTC hearing be made “at the earliest possible opportunity” (with no time limit) will automatically result in scheduling of an in-person hearing. If the objection was not “timely,” then the ALJ would determine if “good cause” existed under the other factors in the regulations. 20 C.F.R. §§ 404.936 and 416.1436. The change requires the objection to be made within 30 days of receipt of the new notice that the hearing will be held by VTC. 20 C.F.R. §§ 404.936(d) and 416.1436(d).

Based on comments to the NPRM, including those from NOSSCR, the final rule adds a “good cause” provision for extending the 30 days to object if the objection is made beyond that period. 20 C.F.R. §§ 404.936(d)(2) and 416.1436(d)(2). To determine whether good cause exists to extend the 30-day deadline, SSA will use the factors in 20 C.F.R. §§ 404.911 and 416.1411.

Exception if claimant moves. There is a “limited exception” to the general rule that a claimant can object to a VTC hearing if the claimant moves while the request for hearing is pending. In that case, “we will determine whether the claimant will appear in person or by video teleconferencing, even if the claimant previously objected to appearing by video teleconferencing.” 79 Fed. Reg. 35927. Why this exception to the rule? The preface states:

This limited exception to the rule allows us to protect the integrity of our programs while providing us with the flexibility to transfer cases when there is a legitimate change in residence and such a transfer would allow us to process the case more efficiently.

Id. According to the response to a comment, SSA states that the “integrity” of the program needs to be protected for the following reason:

… [W]e are concerned that some claimants or their appointed representatives may be misusing our procedures regarding a change in residence to undermine the random assignment of cases to our ALJs. We are aware of situations in which a representative instructed claimants to report a change of address, which was not a change of residence, so that cases would be reassigned to a different hearing office with higher allowance rates. As a result of such practices, we must have a means to ensure the integrity of our program. 79 Fed. Reg. 35928. SSA anticipates “that we will apply this exception infrequently.”

Other important changes include:

New time limit for objecting to the time or place of the hearing. The claimant must notify SSA “at the earliest possible opportunity” but no later than 5 days before the hearing date or, if earlier, within 30 days after receipt of the official notice of hearing. The ALJ will decide if “good cause” applies to reschedule. 20 C.F.R. §§ 404.936(e), (f) and 416.1436(e), (f). The final rule adds a “good cause” provision for extending this time limit, using the factors in 20 C.F.R. §§ 404.911 and 416.1411.

Under the previous regulations, there was no time limit for objecting other than doing so “at the earliest possible opportunity before the time set for the hearing.” Under the final rules, “good cause” must be found in two circumstances: (1) If the claimant or representative is unable to attend or travel to the scheduled hearing because of a serious physical or mental condition, incapacitating injury, or death in the family; or (2) Severe weather conditions make it impossible to travel to the hearing. 20 C.F.R. §§ 404.936(f)(1) and 416.1436(f)(1).

In other circumstances, the ALJ will look at the reasons given, including a nonexhaustive list of factors. Id. at (f)(2). These “good cause” factors to reschedule are retained in the final except for “minor revisions,” as described by SSA.

One factor deleted from the previous regulations, which we do not view as “minor,” is that the claimant lives closer to another hearing site [previous 20 C.F.R. §§ 404.936(f)(6) and 416.1436(f) (6)]. We have been particularly concerned about deleting this factor, given the difficulties claimants have had with attending in-person hearings in some locations. According to SSA, this factor was removed to allow more flexibility if a hearing needs to be transferred to a different location. In addition, SSA again states it is concerned with “misuse” of procedures “to undermine the random assignment of cases to our ALJs.”

This change represents a departure from longstanding SSA policy and even though the list is nonexhaustive, removal of this factor from the list could prove to be a problem for many claimants with limited transportation options. The list of factors to consider does still include: “Transportation is not readily available for you to travel to the hearing …” Id. at (f)(2)(v).

Telephone hearings. Under the final rule, the ALJ is able to schedule a telephone hearing when (1) an in-person appearance is not possible, e.g., the claimant is incarcerated and VTC is not available at the facility; or (2) the ALJ determines, on his own or at the claimant’s request, that “extraordinary circumstances” prevent the claimant from appearing in person or by VTC.

While the preface to the NPRM seemed to focus on hearings at correctional facilities as “extraordinary circumstances, the problem is that the actual regulation presents a potentially broader application.

The final regulation, 20 C.F.R. §§ 404.936(c)(1)(ii) and 416.1436(c)(1)(ii), was not changed from the proposed rule. In response to comments, including those of NOSSCR, that claimants should have the ability to object to a telephone hearing, SSA stated that this was not necessary since “we will use this provision on a limited basis, and its goal is to promote efficiency of hearings.” The response goes on to note that a claimant scheduled to appear by telephone has the right to object to the time or place of hearing under 20 C.F.R. §§ 404.936(d), 405.317, and 416.1436(d).

The David Law Firm Sponsors Wreaths for Wreaths Across America

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The David Law Firm has sponsored 10 wreaths for Wreaths Across America Day.  Wreaths Across America’s mission, “Remember, Honor, Teach”, is carried out in part by coordinating wreath laying ceremonies a specified Saturday in December at Arlington, as well as veterans’ cemeteries and other locations in all 50 states and beyond.  They also organize a week of events including international veteran’s tributes, ceremonies at State Houses and a week-long “Veteran’s Parade” between Maine and Virginia where we stop along the way to spread our message about the importance of remembering our fallen heroes, honoring those who serve, and teaching our children about the sacrifices made by veterans and their families to preserve our freedoms.

The David Law Firm’s wreaths will be placed in the Florence National Cemetery on Saturday, December 13, 2014.  Florence National Cemetery was originally created on land appropriated, and later purchased, by the federal government. The land was first owned by James H. Jarrott and was a quarter of a mile from the Florence Stockade. It became a National Cemetery in 1865, and remains from nearby Civil Aare battlefield cemeteries were transferred and reinterred there.

Florence National Cemetery was listed in the National Register of Historic Places in 1998.

 

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Attorney Byron David Admitted to The United States Supreme Court Bar

Originally posted on The David Law Firm, LLC:

byron david, conway

Attorney Byron David has been admitted to practice in The United States Supreme Court.   To qualify for admission to US Supreme Court Bar, the attorney must have been admitted to practice in the highest court of a State, Commonwealth, Territory or Possession, or the District of Columbia for a period of at least three years, not subject of any adverse disciplinary action, and must appear to the Court to be of good moral and professional character.  In addition, the attorney must be certified by the State Bar Association as having good moral character.  If these requirements are met, the applicant then has to have two attorneys, already admitted into the US Supreme Court, that will sponsor the applicant’s character.

The Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and Imageeight…

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August – National Spinal Muscular Atrophy (SMA) Awareness Month

Byron David

August is National Spinal Muscular Atrophy (SMA) Awareness Month. Share this message and help spread awareness that Social Security offers expedited processing of disability claims for applicants with SMA through our Compassionate Allowances program. To learn more about this important program, and to see the complete list of expedited conditions, visit www.ssa.gov/compassionateallowances.

I’ve heard that you have to pay a lot of money to get a good lawyer to handle a workers’ comp case. Is this true?

Byron DavidYou don’t pay anything at all up front. In fact, the lawyer isn’t paid until you “win” your case. The lawyer’s payment is taken out of your check, so you’re not having to dig into your savings or borrow money to pay for a lawyer.  Attorney Byron David knows the workers’ compensation process. He knows how to help get everything you deserve, everything you’re entitled to.

Here at The David Law Firm, we have years of experience in successfully representing people who have been hurt at work. We will do whatever we can to help you recover the compensation you deserve.

Almost any type of physical injury or mental illness caused by your work is covered. This includes broken bones and all types of sprains and muscle strains. Many times employees do not realize that workers’ compensation also covers other types of work-related injuries, including carpal tunnel syndrome, loss of hearing or vision, lung injuries, heart attacks, strokes, hernias, disfiguring scars, injuries caused by repeated strain and occupational diseases.

Your employer’s insurance company is responsible for all authorized and related medical charges connected with your on-the-job injury. This includes hospitals, physicians, ambulance charges, x-rays, crutches, physical therapy and prescription charges. There is no deductible and you do not pay any of the medical costs. In addition, you are entitled to reimbursement for mileage expenses associated with your medical care.

The workers’ compensation system in South Carolina is a no-fault system. That means if you are hurt on the job, you are entitled to benefits regardless of fault. All employers in South Carolina who employ four or more people are required by law to carry workers’ compensation insurance to cover their employees.

If you were hurt on the job, call The David Law Firm today for a free consultation and case evaluation (843-488-1415). Again, if we handle your case, you pay absolutely nothing unless we win.

With a Workers’ Compensation claim, will I get my full salary while I’m out of work?

If you are out of work and entitled to weekly workers’ comp checks, you will be paid about 2/3 of your average weekly wage or salary. If you are in an unusual situation, this may be a little difficult to figure out. A few examples: working less than 52 weeks with the employer, working more than one job, a significant change in your salary. Some job situations are easy to calculate; some are not.

There is a maximum amount or limit that a person may be paid each week; this amount changes each year.

How You Qualify For Social Security Disability Benefits

Byron DavidTo qualify for Social Security disability benefits, you must first have worked in jobs covered by Social Security. Then you must have a medical condition that meets Social Security’s definition of disability. In general, we pay monthly cash benefits to people who are unable to work for a year or more because of a disability.

Benefits usually continue until you are able to work again on a regular basis. There are also a number of special rules, called “work incentives,” that provide continued benefits and health care coverage to help you make the transition back to work.

If you are receiving Social Security disability benefits when you reach full retirement age, your disability benefits automatically convert to retirement benefits, but the amount remains the same.

When To Apply for Disability

Byron DavidIf you feel you are disabled and unable to work, please call The David Law Firm (843-488-1415) for a free case evaluation.

HOW LONG DO I HAVE TO WAIT AFTER BECOMING DISABLED BEFORE I CAN FILE FOR SOCIAL SECURITY DISABILITY BENEFITS?

Not even one day. As a general rule, you should apply sooner rather than later. You can file for Social Security disability benefits on the very same day that you become disabled. Many individuals make the mistake of waiting months and even years after becoming disabled before filing a Social Security disability claim. There is no reason to file a Social Security disability claim if one has only a minor illness or one which is unlikely to last a year or more. However, an individual who suffers serious illness or injury and expects to be out of work for a year or more should not delay in filing a claim for Social Security disability benefits.

I AM DISABLED, BUT I HAVE SUFFICIENT AMOUNT MONEY IN THE BANK FOR NOW. DO I HAVE TO WAIT UNTIL THIS MONEY IS GONE BEFORE I APPLY FOR SOCIAL SECURITY DISABILITY BENEFITS?

No. If you have worked in recent years or if you are applying for disabled widow’s or widower’s benefits or Disabled Adult Child (DAC) benefits, it does not matter how much money you have in the bank. There is no reason to wait to file for Social Security disability benefits.

CAN I RECEIVE SOCIAL SECURITY DISABILITY BENEFITS IN ADDITION TO MEDICARE AND/OR MEDICAID?

Everyone eligible for Social Security Disability Insurance (SSDI) benefits is also eligible for Medicare after a 24-month waiting period. During this waiting period for Medicare, an individual may be eligible for health insurance through a former employer. The employer should be contacted for information about health insurance coverage.

Typically, a person receiving SSI is eligible for Medicaid. In most states, a decision will be made by the Social Security administration on an individual’s ability to receive Medicaid. However, in some states, a separate application is needed. Information on SSI and Medicaid in your state is available online. It is possible to get both Medicare and Medicaid if you have a low income and limited resources.

Adapted from a publication from Charles T. Hall, Esq., NOSSCR Past President.

South Carolina Workers’ Compensation Claim Basics

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First and foremost, if you’ve been hurt on the job, call The David Law Firm (843-488-1415) immediately.
How do I report an on-the-job injury?

Report all injures at work to your employer immediately and request medical treatment, if needed. If you neglect to report the injury within 90 days of the accident you may lose your benefits. Although you must report the injury within 90 days, you have up to two years to file a claim for benefits. If a worker dies because of work-related injuries, the workers’ dependents, or parents if there are no dependents, must file a claim within two years of the death to claim benefits.

How do I file a claim?

You may personally file a claim if your employer does not report your accident, denies your injury by accident, or if you believe you did not receive all of your benefits. To file a claim you must submit a Form 50 or Form 52 to the Commission. If you are unable to download these forms, email the Commission’s Claims Department at claims@wcc.sc.gov to request the forms be mailed to you. When filing a claim on a Form 50 or Form 52, mark the box 13a. which states, “I am filing a claim. I am not requesting a hearing at this time.”
What medical treatment am I entitled to receive?

You are entitled to all necessary medical treatment that is likely to lessen your disability. Workers’ compensation generally pays for surgery, hospitalization, medical supplies, prosthetic devices, and prescriptions. Keep in mind that in order to receive these benefits you must go to the doctor chosen by your employer or its insurance representative.
How is the compensation rate determined?

You are entitled to compensation at the rate of 66 2/3 percent of your average weekly wage based on the four quarters prior to your injury, but no more than the maximum average weekly wage determined each year by the South Carolina Department of Employment and Workforce. If you are working two or more jobs at the time of accident, those wages may be included as part of the average weekly wage and compensation rate.
Will I get compensated for missing time from work because of my injury?

There is a seven-day waiting period before benefits can be paid. If you are out of work for more than seven days, payments will come from your employer’s insurance representative. If you are out of work for more than 14 days, you will receive compensation even for the first seven days. You can expect payments to be made directly to you and these should continue until the doctor releases you to return to work.
When are my benefits terminated?

After the doctor releases you to return to work with or without restrictions, within 150 days of notification of the accident, you should receive two copies of Form 15 with Section II completed indicating that compensation has been stopped and for what reasons. If the insurance carrier stops your compensation, and if you disagree, complete Section III of the Form 15 and send it to the Commission’s Judicial Department. This is your way to request a hearing to be held in sixty days. If the doctor releases you to return to work after the 150-day notification period, your employer or insurance representative will ask you to sign a Form 17 (receipt of compensation) after you have been back to work for 15 days.
What if the doctor releases me to light duty?

You must accept light work if it is ordered. If you do not accept, all compensation may cease as long as you refuse to return to work. You have a right to a hearing if you believe that you are not able to do the work assigned to you. If you return to light work before you are fully discharged by the doctor at a wage less than you were earning at the time of your original injury, you are entitled to weekly compensation at the rate of 66 2/3% of the difference between your average weekly wage and your new wage.
What if I receive an impairment rating or have a scar?

When the doctor releases you with an impairment rating or if you have a non-surgical scar that can be seen at least eight feet away, the insurance carrier will request an informal conference/viewing. This is an opportunity for you to meet with a representative from the Commission and the insurance carrier to determine the amount of compensation due.
What is a hearing?

The workers’ compensation commissioners conduct a hearing to resolve disputes between you and your employer’s representative. You may apply for a hearing if your employer does not report your accident, denies your injury by accident, or if you believe that you did not receive all your benefits. You may download the Form 50 from the website to request a hearing, or obtain the Form 50 by contacting the Commission’s Judicial Department at judicial@wcc.sc.gov. Mark the box 13b. which states, “I am requesting a hearing.” A $25 fee is required.
Do I get reimbursed for my travel expenses when I go to the doctor?

Yes, if the round trip distance is more than ten miles from your home. Effective August 23, 2004, Commission approved allowance for trips to a pharmacy if the round trip distance is more than ten miles from your home. You should be reimbursed for the round trip mileage at the rate allowed state employees for mileage.
Can I get a second opinion if I am not happy with the doctor to whom the insurance carrier refers me?

You can talk to the insurance carrier and see if he or she will allow you to go to another doctor, or you can request a hearing by completing a Form 50 and have a Commissioner make a determination on the case.
Who sends me my weekly check?

Your employer is required to have workers’ compensation insurance if they have four or more employees and the insurance carrier will be responsible to pay compensation to you if you are out of work for more than seven days.

Schedule of Social Security Benefit Payments 2014

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