The definition of “disability” can be complicated in various occupational statutes. In a Law Against Discrimination [LAD] N.J.S.A. 10:5-1 to -50 claim alleging the “perception of COVID” as a disability, the NJ Appellate Court declined to accept the plaintiff's claim. Guzman v. M. Teixeira International, Inc., NJ: Appellate Div. 2023.
Showing posts with label Disability. Show all posts
Showing posts with label Disability. Show all posts
Tuesday, June 13, 2023
Tuesday, October 11, 2022
Rehabilitation, recognition and research needed for people living with long COVID
While most people who develop COVID-19 fully recover, it is estimated that 10–20% go on to develop what is now known as long COVID. This condition involves a variety of mid- and long-term symptoms such as fatigue, breathlessness and lack of mental focus. While the science behind long COVID is still unclear, a new WHO/Europe factsheet collects existing evidence on the condition and its often-debilitating effect on people’s lives.
Friday, January 1, 2021
Disability for Post-Acute Sequelae of COVID-19
The residuals of COVID-19 (SARS-CoV2 virus) are many. Claimants will need to prove that the residuals that they have sustained are causally related to the virus.
Wednesday, December 11, 2019
Significant Legislation Advances in New Jersey
Important workers’ compensation legislation is quickly advancing as the current 2018-2019 legislative session comes to a close. A bill increasing the recovery for injuries to hands and feet, also also embodies a significant requirement that the Commissioner of the Department of Labor and Workforce Development study, on an ongoing basis, the effectiveness of the State’s workers’ compensation program.
Wednesday, October 23, 2019
The problem with workers’ compensation award ceremonies
Today's guest author is Jon Rehm, Esq. of the Nebraska bar.
Recently three injured workers were honored at the Comp Laude Gala put on by trade publication Workers’ Compensation Central. The event included a panel with the catastrophically injured workers who overcame their injuries.
Saturday, June 25, 2016
The Social Security Financial Report: An Insight Into the Future
Change is coming to the Social Security Disability program based upon the The 2016 Trustees Report that was published this week. It projects that the future finances of the Social Security Disability Trust Fund will require additional funding to remain solvent.
Friday, April 1, 2016
NJ Supreme Court to Review An Increase of Partial Disability Award in Total Disability Claim
One of the basic tenants of workers' compensation is that awards maybe reviewed and modified where the medical status has changed.1 The NJ Supreme Court on March 14, 2016 granted Certification to review a favorable Appellate Court ruling that permitted a totally and permanently disabled injured worker to receive an increase of a prior (2006 injury) partial disability award, even though the worker had been declared to be totally and permanently disability from a subsequent (2008 injury) injury.
Saturday, October 12, 2013
The startling rise of disability in America
In the past three decades, the number of Americans who are on disability has skyrocketed. The rise has come even as medical advances have allowed many more people to remain on the job, and new laws have banned workplace discrimination against the disabled. Every month, 14 million people now get a disability check from the government.  The federal government spends more money each year on cash payments for disabled former workers than it spends on food stamps and welfare combined. Yet people relying on disability payments are often overlooked in discussions of the social safety net. The vast majority of people on federal disability do not work. Yet because they are not technically part of the labor force, they are not counted among the unemployed. In other words, people on disability don't show up in any of the places we usually look to see how the economy is doing. But the story of these programs -- who goes on them, and why, and what happens after that -- is, to a large extent, the story of the U.S. economy. It's the story not only of an aging workforce, but also of a hidden, increasingly expensive safety net. For the past six months, I've been reporting on the growth of federal disability programs. I've been trying to understand what disability means for American workers, and, more broadly, what it means for poor people in America nearly 20 years... |
Tuesday, September 24, 2013
Rules to improve employment of people with disabilities and veterans published today
| The U.S. Department of Labor today announced that the Federal Register published two final rules to improve hiring and employment of veterans and for people with disabilities. The rules were first announced Aug. 27, 2013, and more information is available at http://www.dol.gov/opa/media/press/ofccp/OFCCP20131578.htm. The rules will become effective March 24, 2014, and federal contractors will be required to comply with most of the final rule's requirements by that date. However, some contractors may have additional time to comply with the requirements in subpart C, which relates to affirmative action plans. Contractors with affirmative action plans in place on March 24 may maintain them until the end of their plan year and delay their compliance with the final rule's affirmative action plan requirements until the start of their next plan cycle. |
Saturday, September 14, 2013
Listen to the GAO Podcast: Social Security Administration Improper Disability Insurance Payments
Social Security Administration Improper Disability Insurance Payments
SSA's DI program is the nation's largest cash assistance program for workers with disabilities. Though program rules allow limited work activity, some work activity indicates beneficiaries are not disabled and therefore not entitled to DI benefits. Consequently, SSA might overpay beneficiaries if the agency does not detect disqualifying work activity and suspend benefits appropriately.
(1) the NDNH indicates that individuals received potential DI overpayments; and
(2) SSA's enforcement operation detects potentially disqualifying work activity during the waiting period.
GAO drew random, generalizable samples of individuals from those whose earnings on the NDNH were beyond program limits and compared wages from their employers to DI program data to identify potential overpayments. To illustrate the circumstances in which SSA made potential DI overpayments, GAO reviewed case files for a nongeneralizable selection of six individuals--three who worked during their waiting period, and three who received potential overpayments for at least 3 years.
Recommendation: To improve SSA's ability to detect and prevent potential DI cash benefit overpayments due to work activity during the 5-month waiting period, the Commissioner of Social Security should assess the costs and feasibility of establishing a mechanism to detect potentially disqualifying earnings during all months of the waiting period, including those months of earnings that the agency's enforcement operation does not currently detect and implement this mechanism, to the extent that an analysis determines it is cost-effective and feasible.
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Tuesday, September 3, 2013
Media Portrays Social Security as an Avenue to Benefits for the Unemployed - WRONG! It's Not That Simple...
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| The Social Security Administration turns down many worthy applicants when they first apply. |
Today's post comes from guest author Susan C. Andrews, from Causey Law Firm.
There is a lot in the news these days about the Social Security Disability Program, with some pundits suggesting people are getting on benefits simply because they are unemployed, or because they claim to be injured or ill when in fact they are able-bodied and fully capable of working. Every day, all day, I work with people filing for Social Security Disability benefits. So I work with the program’s rules - yes, there are rules for deciding these cases – it is not enough just to claim to be disabled. And I come face to face with individuals who are struggling, sometimes with a major health issue such as cancer, or rheumatoid arthritis, or Multiple Sclerosis. Other folks have multiple health problems that have combined to force them from the labor market. All of them have medical records, often reams of them, documenting diagnoses, chronicling surgeries and other treatment regimens. This is one big thing I think the general public does not know: a person must have one or more diagnoses from a qualified physician that could account for the symptoms and limitations he or she is reporting to Social Security. There must be convincing medical documentation. Much of my day is spent obtaining and reviewing the medical records of my clients, and ensuring that the decision-makers at Social Security also see them....the medical condition must be not only serious, but also prolonged.Many people are not familiar with Social Security’s definition of disability or the program’s rules, so they do not realize that the disabling medical condition or conditions must be serious enough to have prevented the person from working for AT LEAST 12 continuous months. If the individual has not yet been out of the labor market for a period of at least one year, it must be very clear that this will be the case. In situations where there is doubt about this, Social Security typically turns down the claim. I have had callers who have been unable to work for a few months while going through chemotherapy treatment for cancer, but have been able to get back to work in less than one year. They do not qualify for Social Security Disability benefits. So the medical condition must be not only serious, but also prolonged.
One broadly held belief about Social Security Disability is, in fact, true: The Social Security Administration turns down many worthy applicants when they first apply. It is necessary to appeal (the first appeal is called a Request for Reconsideration). Often, a second denial follows. Then it is necessary to request a hearing in front of a judge. For a person who is too sick to work, not feeling well, and home alone trying to navigate this system, it can be daunting. One of the joys of my practice is our capacity to lend support to such individuals, to take the reins of the case and drive it forward, so my client can concentrate on taking care of herself or himself while I and my staff handle the legal stuff.
We are able to offer representation to people at any stage in the process, including initial application. We are happy to talk with callers who are weighing their options, and simply need information in order to know whether to apply for benefits in the first place. There is no charge for such calls, so do not hesitate to contact us if you have questions about Social Security Disability.
Photo credit: Thomas Hawk / Foter.com / CC BY-NC
Saturday, August 31, 2013
Defense bar files brief to U.S. SC in support of insurer
DRI: The Voice of the Defense Bar this week filed an amicus brief with the U.S. Supreme Court, saying the terms of an Employee Retirement Income Security Act-covered plan must be upheld.
Heimeshoff v. Hartford Life & Accident Insurance Co. et al. is expected to settle differences among the courts of appeals regarding the extent to which the terms of an ERISA-covered plan can establish the date on which the statute of limitations to file a claims for benefits complaint in federal court will begin to run.
The Employee Retirement Income Security Act protects the assets of millions of Americans so that funds placed in retirement plans during their working lives will be there when they retire.
According to the U.S. Department of Labor, ERISA is a federal law that sets minimum standards for pension plans in private industry.
For example, if an employer maintains a pension plan, ERISA specifies when an employee must be allowed to become a participant, how long they have to work before they have a non-forfeitable interest in their pension, how long a participant can be away from their job before it might affect their benefit, and whether their spouse has a right to part of their pension in the event of their death.
Most of the provisions of ERISA are effective for plan years beginning on or after Jan. 1, 1975.
On Aug. 22, 2005, Julie Heimeshoff, a Walmart employee, submitted a claim for long-term disability benefits under the ERISA-covered...
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Thursday, August 1, 2013
High Disability Rates Persist in Old Age
Aging and "late life disability" is an an increasing trend. Injured workers' are surviving longer making total disability claims and Medicare involvement an increasing factor in adjudication and settlement of workers' compensation claims. Today's post was shared by The New Old Age and comes from newoldage.blogs.nytimes.com
But our efforts to dodge disability appear to be falling short. Gerontologists once hoped for a “compression of morbidity”; the idea was that we could remain healthy and active until our bodies fail at advanced ages, and we swiftly died. But new research shows that this has not materialized for most of the elderly. The price we’re paying for extended life spans is a high rate of late-life disability.
Sunday, July 28, 2013
The Oklahoma Opt-Out System is Bad Medicine for an Ill System
The newly enacted Oklahoma "Opt-Out" workers' compensation system has been urged by reformers as an effort to provide a more efficient and effective than its century old program enacted in the early 1900s. A comparison of the Oklahoma Opt-Out system to the New Jersey system reflects a limitation on litigation and a return to a more administrative program. Additionally, the opt-out system would provide for injured workers' choice of physician that ultimately could be blended into an employer based health program.
The changes are dramatic, and a major shift from the traditional based system such as New Jersey has followed since 1911.
Obviously the future statics will be reviewed by all stakeholders to determine if the Opt-Out System can really satisfy the concerns of all stakeholders or just a few.
Radical statutory changes to workers' compensation that have been limited to the interests of specific interest groups in the past have been met with disasters. The Opt-Out System of Oklahoma appears to be one of those programs, and has been bitterly contested by the advocates of injured workers.
In order for the creation of an optimal system of compensation to meet the socio-political-economic changes that are occurring in the world, all parties must sit at the table and work out a plan together. The Oklahoma Opt-Out system just appears to be bad medicine for a very ill system.
The Jersey System:
Case are heard by Compensation Judges nominated by the Governor and the system is administered under the Executive Branch of government. There are 50 Compensation Judges.
The Oklahoma Opt-Out System:
Starting on February 1, an administrative process with three appointed commissioners will replace the current court procedure with 10 judges for litigating workers’ compensation claims.
Temporary Disability Benefits
The Jersey System:
If an injured worker is disabled for a period of more than seven days, he or she will be eligible to receive temporary total benefits at a rate of 70% their average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW. These benefits are provided during the period when a worker is unable to work and is under active medical care.The limit is 450 weeks. The maximum temporary disability rate for 2013 is $826.00.
Permanent Disability Benefits:
The Jersey System:
Partial Disability: When a job related injury or illness results in a partial permanent disability, benefits are based upon a percentage of certain "scheduled" or "non-scheduled" losses. A "scheduled" loss is one involving arms, hands, fingers, legs, feet, toes, eyes, ears or teeth. A "non-scheduled" loss is one involving any area or system of the body not specifically identified in the schedule, such as the back, the heart, the lungs. These benefits are paid weekly and are due after the date temporary disability ends.
Total Permanent Disability:
These weekly benefits are provided initially for a period of 450 weeks. These benefits continue beyond the initial 450 weeks provided that the injured worker is able to show that he or she remains unable to earn wages.
Wages earned after 450 weeks offset the weekly computation in proportion to the income at the time of the injury. Permanent Total benefits are paid weekly and are based upon 70% of the average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW.
Permanent Total Disability is also presumed when the worker has lost two major members or a combination of members of the body such as eyes, arms, hands, legs or feet. However, permanent total disability can also result from a combination of injuries that render the worker unemployable.
The changes are dramatic, and a major shift from the traditional based system such as New Jersey has followed since 1911.
Obviously the future statics will be reviewed by all stakeholders to determine if the Opt-Out System can really satisfy the concerns of all stakeholders or just a few.
Radical statutory changes to workers' compensation that have been limited to the interests of specific interest groups in the past have been met with disasters. The Opt-Out System of Oklahoma appears to be one of those programs, and has been bitterly contested by the advocates of injured workers.
In order for the creation of an optimal system of compensation to meet the socio-political-economic changes that are occurring in the world, all parties must sit at the table and work out a plan together. The Oklahoma Opt-Out system just appears to be bad medicine for a very ill system.
New Jersey Traditional v Oklahoma Opt-Out
Hearing OfficialsThe Jersey System:
Case are heard by Compensation Judges nominated by the Governor and the system is administered under the Executive Branch of government. There are 50 Compensation Judges.
The Oklahoma Opt-Out System:
Starting on February 1, an administrative process with three appointed commissioners will replace the current court procedure with 10 judges for litigating workers’ compensation claims.
Temporary Disability Benefits
The Jersey System:
If an injured worker is disabled for a period of more than seven days, he or she will be eligible to receive temporary total benefits at a rate of 70% their average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW. These benefits are provided during the period when a worker is unable to work and is under active medical care.The limit is 450 weeks. The maximum temporary disability rate for 2013 is $826.00.
The Oklahoma Opt-Out System:
Temporary disability payments will be reduced to 104 weeks instead of 156 weeks, with a cap at 70 percent of the state’s average weekly wage, about $540 per week.
Temporary disability payments will be reduced to 104 weeks instead of 156 weeks, with a cap at 70 percent of the state’s average weekly wage, about $540 per week.
Permanent Disability Benefits:
The Jersey System:
Partial Disability: When a job related injury or illness results in a partial permanent disability, benefits are based upon a percentage of certain "scheduled" or "non-scheduled" losses. A "scheduled" loss is one involving arms, hands, fingers, legs, feet, toes, eyes, ears or teeth. A "non-scheduled" loss is one involving any area or system of the body not specifically identified in the schedule, such as the back, the heart, the lungs. These benefits are paid weekly and are due after the date temporary disability ends.
Total Permanent Disability:
These weekly benefits are provided initially for a period of 450 weeks. These benefits continue beyond the initial 450 weeks provided that the injured worker is able to show that he or she remains unable to earn wages.
Wages earned after 450 weeks offset the weekly computation in proportion to the income at the time of the injury. Permanent Total benefits are paid weekly and are based upon 70% of the average weekly wage, not to exceed 75% of the Statewide Average Weekly Wage (SAWW) or fall below the minimum rate of 20% of the SAWW.
Permanent Total Disability is also presumed when the worker has lost two major members or a combination of members of the body such as eyes, arms, hands, legs or feet. However, permanent total disability can also result from a combination of injuries that render the worker unemployable.
The Oklahoma Opt-Out System:
Permanent disability payments will be reduced from 520 weeks to 350 weeks.
Choice of Treating Physician
The Jersey System:
The Jersey System:
None. Employer selected physician must be utilized.
The Oklahoma Opt-Out System:
Employees will be allowed to change treating physicians once so long as the selection is from a list of three doctors provided by the employer.
Arbitration or Alternate Dispute Resolution
The Jersey System:
None. All cases, including settlements, must be heard or reviewed by a Compensation Judge.
The Oklahoma Opt-Out System:
Employers can require arbitration as the exclusive way to settle claims and disputes with employees.
Monday, July 22, 2013
WHEN IS THE RIGHT TIME TO APPLY FOR SOCIAL SECURITY DISABILITY?
Today's post comes from guest author Susan C. Andrews from Causey Law Firm.
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| Applications for Social Security Disability now can be filed online. |
...benefits can go back no more than one year from the date of the application. This is a matter of concern for those who hold off too long and, as a result, lose out on benefits to which they are entitled.To collect any benefits at all, one must satisfy the above-described 12-month duration requirement. That said, once a person has satisfied the 12-month rule, it also is helpful to know that benefits cannot begin until five full months after the date of the onset of disability. So, for example, if I am diagnosed with a cancer and, because of my treatment, I must stop working on June 7, 2013, (and I know, because of the course of proposed treatment, that I am likely to be off work for more than 12 continuous months), then I could apply right away, but benefits would not begin until December of 2013. The five full months that I must wait for benefits to begin (in this example, July through November) is called the waiting period. The month of June cannot be counted because it is not a full month. Thus, if there is some possibility I might be able to return to work before 12 months has passed, depending on how my treatment goes, then I might want to hold off initially, to see how it goes.
Wednesday, May 8, 2013
New DSM Criteria Manual Challenged by Expert for Lack of Validity
Setting standards for the assessment of psychiatric criteria in workers' compensation claims has been a major challenge. Subjective criteria has been difficult for the experts, evaluators and courts to yield an objective analysis.
With a new version of the Diagnostic and Statistical Manual of Mental Disorders, or
D.S.M., to be published a new challenge to the assessment tool has been made.
"Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific 'lack of validity.'"
Read the complete article "Psychiatry’s Guide Is Out of Touch With Science, Experts Say" NY Times
With a new version of the Diagnostic and Statistical Manual of Mental Disorders, or
"Just weeks before the long-awaited publication of a new edition of the so-called bible of mental disorders, the federal government’s most prominent psychiatric expert has said the book suffers from a scientific 'lack of validity.'"
Read the complete article "Psychiatry’s Guide Is Out of Touch With Science, Experts Say" NY Times
Thursday, April 12, 2012
Washington Workers' Advisor Blog Launched
A new blog, Washington Workers' Advisor, has been launched to provide information about law, policy and safety in the workplace. Jay Causey, of the Causey Law Firm said, that the "blog will apply decades of legal experience and expertise to keep the reader informed about trends and developments in workers' compensation law, social security disability, maritime claims, and other legal issues important to working people."
Attorney Jay Causey has practiced for over 30 years in the area of workers' compensation and disability law, including Washington State workers' compensation claims, Social Security Disability cases, Longshore and Harbor workers' Act cases, Defense Base Act claims, and maritime injury. The Causey Law Firm, located in Seattle, Washington, is a nationally recognized firm serving clients in Washington State. It exclusively represents individuals who have been injured or have become disabled.
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Monday, February 6, 2012
Court Holds That Social Security Decision Does Not Terminate An Order for Temporary Disability Payments
A NJ Appellate Court upheld that a trial judge's ruling that a decision of the Social Security Administration awarding total disability beenfits did not terminate a workers' compensation order for temporary disability payments. Furthermore, the the court upheld Workers' Compensation Judge George Geist's ruling imposing a penalty against the employer for prematurely terminating benefits.
Judge Geist had reasoned at trial:
"First of all, I want to remind you we are in New Jersey. “An injured employee is entitled to temporary disability benefits from the date of his injury in the course of his employment to the earliest of several dates set by various physicians as the time when such disability ceased.”There is no cessation. There is a continuation of treatment. Every one of the reports shows only continuation of treatment.... The words “[has reached] maximum medical improvement” are nonexistent...."
"Next, the judge rejected BOE's assertion that Ferguson's receipt of SSD benefits entitled BOE to refuse to pay workers' compensation benefits. He reasoned that BOE lacked the authority to disregard a court order, but had done so nonetheless."
Ferguson v. Trenton Board of Education, 2012 WL 330935 (N.J.Super.A.D.), Decided Feb. 3, 2012.
Judge Geist had reasoned at trial:
"First of all, I want to remind you we are in New Jersey. “An injured employee is entitled to temporary disability benefits from the date of his injury in the course of his employment to the earliest of several dates set by various physicians as the time when such disability ceased.”There is no cessation. There is a continuation of treatment. Every one of the reports shows only continuation of treatment.... The words “[has reached] maximum medical improvement” are nonexistent...."
"Next, the judge rejected BOE's assertion that Ferguson's receipt of SSD benefits entitled BOE to refuse to pay workers' compensation benefits. He reasoned that BOE lacked the authority to disregard a court order, but had done so nonetheless."
Ferguson v. Trenton Board of Education, 2012 WL 330935 (N.J.Super.A.D.), Decided Feb. 3, 2012.
Sunday, January 29, 2012
Wage Miscalculations Can Result In Incorrect Low Temporary Disability Payments
Click here to read more: Don’t Get Short-Changed On Your Work Comp Disability Payments by attorney Brody Ockander
"While off work for your injury, make sure you are getting the proper amount of money you are entitled to. Employers use many techniques to manipulate your wages to pay you less than you are legally entitled to."
Tuesday, November 22, 2011
Lack of Medical Evaluators Delays Social Security Claims Processing
of the Nebraska Bar
Recently, the Waal Street Journal reported that the Social Security Administration (SSA), frustrated by the backlog of applications for disability benefits, started pressuring the 140 doctors the agency uses to help evaluate some of the claims. In an effort to encourage the quick processing of claims doctors were paid a flat rate of $80/case in stead of the previous $90/hour to review the cases. Many times these cases have hundreds of pages of records to be reviewed and can turn on a few sentences.
Also, doctors were assigned to evaluate conditions that were not in their areas of expertise. One of the more interesting quotes came from Neil Novin, former chief of surgery at Baltimore's Harbor Hospital, who worked for Social Security part time for about 10 years. He said "People who shouldn't be getting [disability] are getting it, and people who should be getting it aren't getting it".
In my experience this has always been the case, but now, with agency doctors being pressured to evaluate these cases quicker, we’ll likely see less competent and thorough evaluations. This in turn will lead to longer delays, more cases waiting for a hearing and more money spent to evaluate more cases by administrative personnel within the SSA.
Although I’ve never thought the agency doctors do a good job evaluating these cases, the situation will get worse now that 1/3 of the 140 doctors have either quit or been fired over this shift in philosophy. In this setting it’s every more important to seek the help of a treating physician in offering a supportive report.
See the complete article:
Doctor Revolt Shakes Disability Program (wsj.com)
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