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SSA Implementation of Video Hearing Opt-Out Process

byron david, conway, scAs often happens when SSA changes its procedures, especially on a mass basis, implementation of the final rules [79 Fed. Reg. 35926 (June 25, 2014)] on objecting to video hearings has been rather bumpy. Claimants are confused when they receive the notices, sometimes with envelopes, sometimes without. This results in more calls and visits to their representatives. Representatives are confused when they receive the forms and hearings have already been scheduled, sometimes even for video hearings.

Articles in the July and August 2014 issues of the NOSSCR Social Security Forum described the final regulations and how SSA intended to implement them. However, at a recent meeting with ODAR Deputy Commissioner Glenn Sklar and his top management staff, including Chief Administrative Law Judge Debra Bice, NOSSCR representatives raised many of the questions and concerns experienced by claimants and their representatives. This article will try to answer some of the questions. Also, the SSA website has a brief summary, http://www.ssa.gov/representation/appearingathearings.htm. The regulations provide that prior to scheduling a hearing, SSA will notify the claimant that it may schedule the appearance by video teleconferencing. If the claimant objects to appearing by video teleconferencing, the claimant or his/her representative must notify SSA in writing within
30 days after receiving this notice, although the time can be extended for “good cause” as provided in 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.

New request for hearing: For a hearing request received after September 6, 2014, the hearing request acknowledgement will include language that the hearing may be a video hearing. A form will be provided, with a barcode on the form. As provided in the instructions, the form is to be returned either by mail in the envelope provided to the representative or by fax to the dedicated number provided. The fax number is provided with these notices and forms. Using this fax number directly uploads the form to the electronic folder.

Pending request for hearing but hearing not yet scheduled. For a pending hearing request for which the acknowledgement has already been sent, but the hearing has not yet been scheduled, SSA will send a notice that the hearing may be either in person or by video and an “opt-out” form will be included. SSA began to mail out these notices on a staggered basis over a 6-week period beginning September 19, 2014. These forms will have no barcode. They are to be mailed back in the envelope provided to the representative. They will be scanned into the electronic folder (although there may be a delay) and will appear in the “Case Documents” section. We know that the notices and forms have been sent in cases already scheduled for hearing, in some cases, even video hearings. We were told that a cut-off date was selected that was apparently overly broad. It is possible that at the time of the cut-off date, the case was not scheduled but by the time the notice was sent and received, the case was scheduled. What should you do? We were told that ODAR will not change already scheduled hearings. But just to be safe, you may want to send back the opt-out form if the claimant wants an in-person hearing. It is important to note that these are “onetime” notices and any confusion regarding pending cases will eventually disappear. conference_room_system

Answers to questions and practice tips:

Representatives can sign the forms. Consistent with the regulation, an authorized representatives can sign the opt-out form on behalf of the claimant. See 20 C.F.R. § 404.1710. However, be sure to discuss this with your client as the choice to opt-out or not is the claimant’s decision. Some practitioners address this with their clients at the initial interview, which
is a good time to discuss the pros and cons of video hearings vs. in-person hearings.

Submit the form after the acknowledgment notice is sent, not before. Some members have asked if the form, HA-55, is available online and can be submitted with the request for hearing. The answer is “no.” The regulation provides that the claimant respond after receipt of the hearing request acknowledgment and the notice and form to opt out of a video hearing. From a systems perspective, it was explained at our meeting with ODAR that there would be problems associating the form if sent before the case is logged in to the ODAR case management system, e.g., if the form is sent with the request for hearing. The process is set up, so that the form be submitted after the case is logged in and thus will be associated with the case. It will appear in the Case Docs section of the electronic file.

SSA also is uploading copies of the initial notice to the claimant’s electronic file. The notice date reflected in the file is the same date the notice was mailed. SSA also is including the actual mailing date on all of the notices as well.

Use the envelope or fax number sent with the acknowledgment letter and form. If you are mailing back the form, use the envelope sent with the form. If you are faxing back the form (only for cases with a new acknowledgment letter), use the fax number provided with the letter since this is a dedicated fax number. Do not submit by ERE!

For already scheduled hearings, no need to respond. If you receive one of the one-time notices (for cases where acknowledgment letter previously sent) by mistake for cases are already scheduled, you do not need to respond. The scheduled hearing (whether in-person or video) will not be changed. However, as mentioned above, if the claimant is scheduled for an in-person hearing, you may want to go ahead and send the opt-out form back, just to be safe.

Claimant obtains representation more than 30 days after the opt-out form was received. We know that a common occurrence is that claimants often retain representation after a hearing has been scheduled and the hearing notice has been received. This will undoubtedly occur more than 30 days after the opt-out form was sent earlier with the request for hearing acknowledgment.

The new regulation requires the objection to be made within 30 days of receipt of the new notice that the hearing could be held by video and receipt of the opt-out form. 20 C.F.R. §§ 404.936(d) and 416.1436(d). The prior regulations provided that an objection to a video hearing be made “at the earliest possible opportunity” (with no time limit) and would 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.

Based on comments to the 2013 proposed rule, including those from NOSSCR, the final rule added a “good cause” provision for extending the 30 days to object and send back the opt-out form 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.

At the ODAR meeting, we specifically asked what a claimant and representative should do if the claimant retains representation more than 30 days after the opt-out form is received and has not been sent back to ODAR and, after consulting with the representative, the claimant decides she/he wants an in-person hearing. The response was that the form should be returned with a request for good cause to extend the 30-day limit, with an explanation why the time should be extended. While not directly addressed, the request should be sent to the ALJ, if already assigned. If no ALJ has yet been assigned, send the request to the Hearing Office Chief ALJ.

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Attorney Byron P. David Asked to Speak at the South Carolina Association for Justice Auto Torts Advanced Trial Lawyers College

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Attorney Byron P. David of Conway, has been asked to speak at the South Carolina Association for Justice’s (SCAJ) Advanced Trial Lawyer College this December in Atlanta.  David will be on the panel with esteemed colleagues, Attorneys John S. Nichols, Allison P. Sullivan and Bert G. “Skip” Utsey.  David’s segment is noted under the Expert College – Learning from the Experts and is titled “The Devil is in the Details: Settlement Agreements, Indemnity Liens”.

“I am truly humbled to be speaking at the conference with such respected and accomplished attorneys.  The Auto Torts conference is always informative and insightful; I look forward to being on the other side this year,” says David.

 The Auto Torts Advanced Trial Lawyer College will be at the Ritz-Carlton, Buckhead, Atlanta the first weekend in December. Often described as “the best seminar in the region, if not the country,” the SCAJ Auto Torts seminar is enjoyed by trial lawyers from across the south.  It will include a variety of presentations on subjects ranging from technology and toxicology to neuropsychology and ethics.  Speakers will include well-known AAJ members and experts in their fields.

Attorney Byron David Named “Kiwanian of the Year”

Check out Attorney Byron David in this week’s Horry Independent!  Attorney David was awarded the “Kiwanian of the Year” award and passed the gavel to Chief of Police, Reggie Gosnell.

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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.

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

Byron David Conway

The Faces and Facts of Disability

Attorney Byron David Presents Kiwanis Scholarships

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Conway High School graduate Stevie Martin, third from left, was presented at $1,000 scholarship during the Kiwanis Club of Conway’s recent weekly meeting at the Conway Recreation Center. Miss Martin plans to attend Anderson University. She was a member of the Key Club at CHS, where she was ranked 14th in the senior class. Martin was a cheerleader at CHS and will also be a member of the cheerleading team at North Greenville.  Pictured are, left to right, Sallie Goldfinch, CHS Key Club faculty adviser; Stevie’s mother Michelle Martin; Stevie Martin; and Conway Kiwanis Club president Byron David.

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Loris High School senior Lynzi Hammett, third from left, was recently presented a $1,000 scholarship during the Kiwanis Club of Conway’s weekly meeting at the Conway Recreation Center. Miss Hammett plans to attend Wofford College where she will major in chemistry. She is a four year member of the LHS Key Club and is ranked fifth in her class.  Pictured are, left to right, Richard McCleary, chairman of the Service Leadership Program committee for the Conway Kiwanis Club; Byron David, president; Lynzi Hammett; her mother Laura; and Denese Tyler, LHS Key Club faculty adviser.

 

(source: The Horry Independent)