Blog Archives

Four Time Finalist for “Best Attorney”

Byron David - The David Law Firm

Thank you again for voting Attorney Byron David “Best Attorney” for the fourth consecutive year!  We love our clients!

Advertisements

New Mileage Reimbursement Rate – Workers’ Compensation

byron david, conway, florenceRegulation 67-1601 A (1) provides the expenses incurred for travel to receive
medical attention which shall be reimbursed to the claimant are mileage to and
from a place of medical attention which is more than five miles away from home in
accordance with the amount allowed state employees for mileage.

The state employee mileage rate is based upon the standard business mileage rate
established by the Internal Revenue Service. Effective January 1, 2014 the
reimbursement rate for state employee mileage is 56 cents per mile. Therefore,
effective January 1, 2014, the new mileage reimbursement rate to and from a place
of medical attention is 56 cents per mile.

What if I Cannot Afford Treatment that Would Allow Me to Work?

Byron David, Conway, FlorenceWhat if you are disabled and unable to work?

You would file for Social Security Disability Income (SSDI) benefits.  Sounds simple enough.

Now let us consider another – more complicated – question.

What if there was a treatment for your disability which would allow you to work, BUT you cannot afford that treatment?

Can your SSDI claim be denied based on the fact that, with treatment, you could work?

Consider this case:

A young man had a below-the-knee amputation over 15 years ago, and began using a prosthetic leg that same year.  He used that same artificial limb for several years, before it began cracking and causing his stump to bleed when worn for more than 30 minutes at a time.  The man is unable to get around on one leg.  However, he cannot afford a new limb and there are no assistance programs available to him for reduced or free repair or replacement of the limb.  Modifications to the device itself have been tried, but to no avail.

When filing for SSDI, the Administrative Law Judge (ALJ), the medical expert (ME), and even the prosthetic provider, testified that the man cannot ambulate properly with his current prosthetic leg, and that he needs a new one.  Furthermore, all agree that with a new leg, the claimant would be able to get around easily and, therefore could secure a job.

The question is then, can the man’s SSDI claim be denied based on the fact that, with treatment (which he cannot afford), he could work?

No, according to Attorney Byron David.  David’s opinion is based on rulings in two prior cases:

  • “The medicine or treatment an indigent person cannot afford is no more a cure for his condition than if it had never been discovered.”   [McKnight v. Sullivan,927 F.2d 241 (6th Cir. 1990) which adopted the 5th Circuit rule in Lovelace v. Bowen, 813 F.2d 55 (5thCir. 1987)]
  • A claimant may not be penalized for failing to seek treatment she cannot afford; “[i]t flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.” [Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir.1984).  Lovejoy v. Heckler, 790 F.2d 1114, 1117 (4th Cir. 1986)]

If you or someone you know are disabled and unable to work, please contact The David Law Firm at (843) 488-1415.

What if My Doctor Will Not Help My Injury Case?

byron david, conway, florence

Sometimes a treating doctor or surgeon will not agree to testify in court, and in fact will not have anything to do with a patient’s injury case.

Clients of The David Law Firm ask what can they do when their own doctors do not want to be bothered.  In some cases a treating doctor will demand thousands of dollars to testify, attend a deposition, or even write a written report.

Since the injured victim always has the burden of proof to show the nature and extent of the harms and losses, expert medical testimony is vital.

Attorney Byron David advises clients in these circumstances that there are other options:

  • While the U.S. Constitution forbids involuntary servitude, such that a doctor cannot be forced to give an opinion or testimony, physicians and other healthcare providers can be subpoenaed as fact witnesses — much like an eyewitness to a car crash or dog bite attack.
  • Hiring a paid expert witness is another way to obtain medical testimony in a case.  In order to keep the costs down of going this route, David counsels disabled clients that a reviewing physician, independent examiner, or other expert witness will be questioned in a deposition, but will not necessarily be retained for trial.
  • If the treating doctor, family physician, or surgeon refuses to participate in a trial, then David has over the years taken many videotaped depositions for later presentation to the jury.  While David prefers live testimony of the actual treating doctors, videotaped depositions, along with the appropriate visual aids and medical illustrations, have their place and purpose.
  • In major cases, the David Law Firm trial team will retain a medical expert to evaluate and examine the patient, along with his or her medical records and films. That medical doctor can then testify at trial as to his or her findings, opinions, and explanations of the medical terminology.
  • Another solution is to have a non-examining doctor perform a medical records review of the films and records i.e., x-rays, MRI, CT scan, pet scan, etc. and then testify based upon that limited information.
  • The David Law Firm has also used nurses, PhD’s, and other experts to explain medical conditions, anatomy, and the usual customary charges for medical treatment.

If you, or someone you care for, has been injured through no fault of their own, and there are questions about their doctors’ assistance in their case or claim, call The David Law Firm (843) 488-1415.

Definition of Disability

Byron David ConwayThe definition of disability under Social Security is different than other programs. Social Security pays only for total disability. No benefits are payable for partial disability or for short-term disability.

“Disability” under Social Security is based on your inability to work. We consider you disabled under Social Security rules if:

  • You cannot do work that you did before;
  • We decide that you cannot adjust to other work because of your medical condition(s); and
  • Your disability has lasted or is expected to last for at least one year or to result in death.

This is a strict definition of disability. Social Security program rules assume that working families have access to other resources to provide support during periods of short-term disabilities, including workers’ compensation, insurance, savings and investments.

(from ssa.gov)

Can I Work and Still Get Social Security Disability Insurance (SSDI)?

The David Law FirmThe short answer is Yes, but deserves a bit of explanation.

First, a definition of Substantial Gainful Activity (SGA):  SGA is work that brings in over a certain dollar amount per month ($1,040 in 2013).  The Social Security Administration (SSA) figures if a person is able to earn a certain amount of money (SGA), then he or she must not be disabled and therefore should not collect benefits.

But, SSA allows disabled and injured folks to engage in Substantial Gainful Activity (SGA) during what is known as a trial work program.

trial work program is a 9 month period during which an injured or disabled individual is actually encouraged to try to do work within his or her physical and mental limitations.  The trial period gives the worker 9 months to test out his or her ability to work — without the worry that benefits will be cut off as he or she tests the waters, so to speak.  Any month during which a worker earns $750 or more (or if self employed works 80 hours or more OR earns $750) is considered a trial work month.

Call The David Law Firm (843-488-1415) to evaluate your specific disability options.

Government Shutdown

Byron David

IMPORTANT INFORMATION ABOUT THE FEDERAL GOVERNMENT SHUTDOWN

Due to the Federal Government Shutdown, Social Security field offices are open with limited services. Hearings offices remain open to conduct hearings before an Administrative Law Judge (ALJ). Social Security card centers are closed.

Social Security and Supplemental Security Income payments to beneficiaries will continue with no change in payment dates.

Due to Congressional inaction to prevent the Government shutdown, SSA will only provide the following services at Social Security field offices:

  1. Help you apply for benefits
  2. Assist you in requesting an appeal
  3. Change your address or direct deposit information
  4. Accept reports of death
  5. Verify or change your citizenship status
  6. Replace a lost or missing Social Security payment
  7. Issue a critical payment
  8. Change a representative payee
  9. Process a change in your living arrangement or income (SSI recipients only)

SSA cannot provide the following services:

  1. Issue new or replacement Social Security cards
  2. Replace your Medicare card
  3. Issue a proof of income letter

Social Security Disability and Unemployment Benefits

byron david, conway

Congressional interest in overlapping SSDI and unemployment benefits has increased recently. In addition to the Senate bill that would offset benefits, S. 1099 [see June 2013 NOSSCR Social Security Forum], a bill has been introduced in the House of  Representatives, H.R. 1502 that would preclude (not offset) receipt of SSDI benefits for any month of eligibility for unemployment insurance benefits. The “Social Security Disability Insurance and Unemployment Benefits Double Dip Elimination Act” would deem an individual to have engaged in substantial gainful activity (SGA) for any month that individual was entitled to unemployment insurance benefits. In addition, the individual would be deemed to have rendered “services” in a month for trial work period purposes if unemployment benefits were received in that month. The House bill is different form the Senate bill in that S. 1099 would simply offset the amount of unemployment benefits from the SSDI benefits amount for any month of concurrent receipt. The House bill precludes eligibility for concurrent receipt months. In addition, by deeming such months as SGA or trial work period months, termination of  benefits could occur sooner. The main sponsor of the bill is Rep. Sam Johnson (R-TX), Chairman of the House Way and Means Social Security Subcommittee.  Cosponsors include some of the other Republican members of the House Ways and Means Committee.

The Secret ALJ Policy Comes to an End (Social Security Disability)

SSA

The Social Security Administration has reviewed its decision to not disclose the name of the Administrative Law Judge (ALJ) assigned to hear a case until the day of the hearing.  As a result, SSA and the hearing offices are making the following changes as a result of the review:

– As of April 20, 2013, SSA has resumed disclosing the name of the ALJ assigned to a hearing when it sends out a Notice of Hearing.  (Note: Under SSA rules, this Notice must be sent at least twenty days before the hearing, but typically SSA sends it out 60-90 days prior to the hearing.)

– In addition, as of April 20, 2013, SSA has added the ALJ’s name to the Appointed Representative Services (ARS) internet application.

 

Secret ALJ Policy for Social Security Disability Hearings

The Office of Disability Adjudication and Review (ODAR) is now keeping the name of the assigned Administrative Law Judge (ALJ) a secret (from the representative, claimant, and experts) until the day of the hearing. Previously, knowledge of the name of the ALJ as of the setting of the hearing, or as of receipt of the Notice of Hearing, allowed experienced counsel to prepare for the hearing according to the preferences and style of the assigned judge.  In short, attorneys and claimants will not know who their judge is for their hearing, until the day of.

ALJ s vary widely in their approach to hearings, and the inability to prepare for the particular judge has greatly limited the assistance a representative can provide to a claimant. Claimants are also hindered in their pre-hearing communication with ALJs, especially with regard to conflicts, but also with regard to scheduling concerns and evidentiary issues. Some ODARs keep the judge’s name a secret until the morning of the hearing, while others keep it a secret until the hearing begins.

There have been ongoing requests regarding the violation of the Freedom of Information Act (FOIA) because of this new policy.  Representatives and claimants feel they should be privy to the information to aid in hearing expectations.  However, the policy remains until further notice.