Establishing Service Connection

Written by Maurice Abarr on . Posted in Veterans Disability

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For the VA to approve your claim, they’re looking for these three things:

  1. Evidence of a current disability.
  2. Evidence of something that happened in-service.
  3. Evidence connecting the first two.

Simply put, the VA needs to know that you’re currently disabled and that the something that happened while you were a service member is connected to your current disability. Here’s an example:

You have trouble getting around because your knee hurts; that’s the current disability. When you were in the service, you hurt your knee during training and you went on Sick Call to get it treated. There will be a record of treatment that should now be a part of your C-File. This is the in-service incident. The next part is up to a doctor to provide evidence that the past injury is, at least in part, causing your current disability.

A key point to remember is that it’s not enough to have a bad knee. Nor is it enough to have had an injury during your time in the service. The medical evidence connecting the two is crucial.

Of course, if your disability claim was initially rejected by the VA, it may not have been such an obvious case. In other words, in the eyes of whoever reviewed your application, one of the necessary elements was lacking. When you file your Notice of Disagreement (NOD), the VA is required to respond with a Statement of the Case (SOC). The SOC should outline the reasons that the VA came to the decision that they did–referring to specific claims and the evidence that they evaluated to reach their conclusions. So, that means it should be a guide to which of the three elements of service connection needs to bolstered in your appeal.

This highlights why it’s so important to have your Claim File (C-File): It contains the evidence that the VA used to evaluate your claim. Having the C-File allows for verification that records of in-service injuries are actually there. Or, that medical reports regarding your current disability are being included. Or, that a current medical opinion is actually connecting the two.

Consequently, it’s advisable to seek qualified legal help. It’s easy to believe that your situation is as obvious as the example above. After all, you lived it and you’re still living it. But, a trained and experienced professional can look at what you’re telling the VA, find the parts that need to be shored up, and put you on the path for a favorable ruling.

The best way to approach your appeal will depend upon the “what’s” in the VA’s SOC. For example, if there’s not enough evidence of an in-service injury, you may need to get “buddy letters” from your fellow service members to confirm what you experienced. Sometimes you may need a private doctor to perform a medical examination and write a report to provide evidence of service connection. Such a report will frequently contradict the findings from the Compensation & Pension Exam, done by a doctor that the VA themselves selected.

We at The Law Offices of Maurice L. Abarr are familiar with appealing VA Disability claims and can guide you to the specific elements you need to prove Service Connection. Contact us for a free consultation.

SOC, Form 9, & You

Written by Maurice Abarr on . Posted in Veterans Disability

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So you’ve filed your Notice of Disagreement (NOD). The VA must respond with a “Statement of the Case” (SOC). The SOC is designed to explain all reasons that the VA reached their decision. It should refer to your specific claims, the evidence that they used to evaluate your claims, and the laws and regulations they applied to reach their conclusions.

Depending upon your particular claim, an SOC can get long and complicated. It may comprise many pages of arcane language regarding the laws, regulations, and rules that the VA Regional Office used as the basis for their decision. It’s important to know and understand everything that’s in there, however. Did the VA miss an important piece of evidence in your C-File? Did they rely on an outdated rule?

Once you have the SOC, it is your responsibility to respond with VA Form 9, “Appeal to Board of Veterans Appeals,” or as it’s more commonly called Form 9. This may be the most important form that gets filed in your appeal and you may hear it referred to as the “Substantive Appeal.” That’s because this is where you specify all of the reasons you believe the VA got it wrong.

On the Form 9, you’ll need to state each decision with which you disagree–and state every reason for your disagreement. The idea is to include everything that you want the VA to consider. This might include new evidence that should have been in your C-File but turned out to be missing. And, since the goal is to make it as easy as possible for the VA to say, “Yes,” to your appeal, it’s also a good idea to include what you think is the right decision.

Another important consideration is that while you had one year to file your NOD, you have only 60 days to file your Form 9. Just like the NOD, if you don’t meet the deadline, your appeal is pretty much over.

Once you’ve completed your Form 9, you’ll send it to the VA office that denied your initial claim. As with all paperwork sent to the VA, you should (a) save a copy for yourself and (b) send it to the VA in a way that provides proof of delivery.

Once the VA has your Form 9, a number of different things can happen. If you’re very lucky, the decision might get changed right there. But it’s just as likely that your appeal will continue. If you submitted something new for the VA to consider, you’ll receive a “Supplemental Statement of the Case” (SSOC)–to which you would respond with another Form 9. And, of course, all the same rules and deadlines would apply to the new submission.

Filling out an effective Form 9 can be tricky. Overlooking something at this stage can derail your appeal. Considering all the technicalities involved in this, if you haven’t contacted and retained qualified legal assistance now may be a very good time to consider it. We at The Law Offices of Maurice L. Abarr are at your disposal. Contact us for a free consultation.

The Veterans Administration C-File & You

Written by Maurice Abarr on . Posted in Veterans Disability

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The C-File (short for Claim File) is all of the evidence that the VA uses to make its decision on how your claim will be rated. So if you disagree with the VA’s determination and file an appeal, you will need to request a copy of your C-File. You should do this as soon as you’ve received your initial determination. Since the VA has made its decision based on what’s in there, it’s a good idea for you to have it and see the exact basis for that decision.

There’s no set structure to a C-File but there are certain things that should be there. These include:

  1. All of the correspondence between you and the VA regarding your claim.
  2. Your DD-214 form.
  3. Your military and VA medical records.
  4. Any private medical records you submitted.
  5. Your entrance and separation exams.
  6. Any Compensation & Pension (C&P) exams performed on you.
  7. The VA’s ratings decision and statements of the case.

As the C-File is the basis for the VA’s decision making process, this is your opportunity to make sure everything you want them to know about your claim is in there. It’s possible that a particular piece of evidence that supports your position slipped by your VA case reviewer. It’s even possible that such a piece of evidence is actually missing from your C-File. Consequently, reviewing your own C-File enables you to assess whether it was a simple oversight, a missing or misfiled piece of evidence, or whether additional evidence is needed.

You have a few options on how to get a copy of your C-File. The simple answer is, “Ask for it,” and the best way to ask for it is with what’s called a Freedom of Information Act (FOIA) request There’s no specific form for a FOIA request but you need to do it in writing and you must sign your letter of request. A FOIA request must reasonably identify what you’re seeking–in this case, all documents contained in any VA claims folder for you that exist in both physical and virtual/digital form. You should put your VA claim number near the top of the letter so the VA can identify which C-File is being requested. You should specify that you want hard copy of everything. Finally, you need to include your contact information, including your phone number.

The FOIA request needs to be sent to the Veterans Benefits Administration Regional Office FOIA/Privacy Act Officer. When sending something to the VA, it’s always a good idea to: (a) keep a copy for yourself; (b) send it in a way that provides proof of delivery (e.g., certified mail with return receipt requested).

If you’re considering getting representation (whether with an attorney or through a veterans service organization), we strongly recommend that you provide your C-File directly to your representative. While it may be tempting to go through it and start rearranging things, an experienced representative will know how to correctly manage this. Considering the wide range of documentation that should be in your C-File, it can get quite large and complicated. Since the goal is now to make it easier for the VA to approve your appeal, it’s critical to find the right pieces of paper among those reams to help your appeal move forward. A qualified Veterans’ Benefits attorney can help with that.

So, take responsibility for your record keeping. Maintain a copy of your C-File. Remember, your C-File is the very core of your VA claim and appeal.

We recognize that this process can become a bit overwhelming for some. Whether you’re trying to figure out exactly how to get your C-File or what to do with it once you’ve gotten it–or if you need to find the piece of evidence to help the VA approve your appeal–we at The Law Offices of Maurice L. Abarr are ready to provide you with the help you need. Contact us for a free consultation.

Appealing Your Case To The Veteran’s Administration

Written by Maurice Abarr on . Posted in Veterans Disability

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Okay…

You’ve served our country, done everything asked of you and more, and now you’ve come home. Unfortunately, like too many of your comrades in arms, you’re suffering from a disability because of your time in service. So now, you’ve followed all the steps for filing your disability claim with the VA. After waiting for their response, you finally get a response. But, it’s a ratings decision that values your disability lower than you think it should be. Or, it’s a rating decision that grants you some of what you are due and denies you other parts of your claim. Or, it denies your claim entirely.

Sound familiar? Unfortunately, this happens all too often. The good news, though, is that it’s not the end of the road. There is a process by which you can appeal the VA’s determination.

As a veteran, you know the government loves its abbreviations and acronyms. As attorneys representing veterans, we have to know what they mean. We at the Law Offices of Maurice L. Abarr can help you get through all of the confusion of the VA’s abbreviations and acronyms.

The first step is to file a Notice of Disagreement (NOD) with the VA. It’s just what it sounds like. It’s your way of letting the VA know that you received their determination but you think they got it wrong. More importantly, it preserves your right to appeal all of the errors in the VA’s decision to deny you benefits.
There are some key points to know about filing an NOD. Perhaps the most important of these is the timing. You have a one-year deadline to file your NOD. That’s one year from the date on the cover letter that accompanies the decision you want to appeal–not one year from when you received it. Frequently the VA sends its decision with a cover letter and the cover letter is dated later than the decision. The date of the cover letter is what controls the process.

IMPORTANT: While one year may seem like a lot of time, this is a deadline you don’t want to miss; if you don’t file your NOD in time, the VA’s determination is considered final.

The VA has a new form–the VA Form 21-0958 Notice of Disagreement–for filing your NOD. It’s important to note that the use of this form to file your NOD is not mandatory. You can use the much simpler VA Form 21-4138 Statement in Support of Claim or even write a plain letter to the VA.

If you’ve received a determination from the VA, you’ll probably have a copy of this new VA Form 21-0958 and you can see the level of detail it requires. So why would you use such a complicated form that’s not mandatory when a much simpler approach exists? According to the VA, the primary benefit of using this form is that it will expedite the processing of your appeal. The specific issues of your appeal are brought to the VA sooner and more clearly and it helps jump start the process. It’s our contention that you want to make things as easy as possible for the VA to say, “Yes,” to your appeal. On the other hand, there is a potential risk in how you fill out the 21-0958 form. It asks for specific reasons for your disagreement. If, however, you don’t include certain information or raise certain objections, you may have trouble introducing them later.

Our recommendation is a question of timing–especially where you are up against that all-important one-year deadline. If you’ve just gotten your determination and the clock just started, then it makes sense to work through the 21-0958 form and take advantage of the benefits it can bring. It’s important that you don’t hurt your appeal before it has even started. Considering the potential pitfalls the form brings, it may be a good idea to get qualified legal assistance in filling out your 21-0958. If, however, you’re up against the one-year deadline, it probably makes more sense to use the simpler approach: the VA Form 21-4138 Statement in Support of Claim. If your situation lends itself to going with the 21-4138 or letter approach, then it’s important to keep a couple of things in mind.

There are two specific things you need to say:

1. That you disagree with the VA’s ratings decision and the date of that decision. (“I disagree with the VA’s decision of date .”)
2. That you say that you intend to appeal that decision. (“I want to appeal this decision.”) It is imperative that you include both of those statements.

You don’t need to get any more specific than that. In fact, too much specificity at this point may hurt your appeal later down the road.

Regardless of how you prepare your NOD, once you’ve completed it (and saved a copy for yourself), send it to the VA office that sent you the denial letter. We strongly recommend that you send it in a way that provides proof of delivery (e.g., certified mail with return receipt) so that you’ll have proof that you met the filing deadline. If you send by certified mail, return receipt requested, you will receive a green card confirming the date of receipt. Keep that card in a safe place. It may be very important later.

The VA will respond with a Statement of the Case (SOC); this is a summary of the decision and how they arrived at their determination. This will also include the very important VA Form 9, Appeal to Board of Veterans Appeals. Form 9 is much more complicated than a NOD and what is (and isn’t) included can be critical to your appeal. This form has a much shorter deadline–60 days–and is the time where you will be expected to get specific with your appeal.

Depending upon your particular situation, it may be advisable to seek qualified legal help. Whether it’s at the NOD stage and deciding which way to start the process or at the Form 9 stage, the last thing you want to do is make a small technical error that can hurt your appeal later down the road.
Feel free to contact us to ensure that you get a fair hearing of your case. You’ve earned it.

Permanent Disability–A Somewhat Misleading Phrase

Written by Maurice Abarr on . Posted in Workers Compensation

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In the nearly 40 years that I have been representing those disabled, I have observed that the phrase “Permanent Disability” often misleads the victim of an injury into seeing himself/herself as permanently unable to work. A more correct characterization would be “Permanent Partial Disability”–i.e., some (but not all) loss of ability to perform the activities of daily living, including some work.

When the unsophisticated injury victim hears that he/she has “Permanent Disability,” often they start worrying about how they are going to survive without any ability to perform work so as to “make their living.” If it is a more minor injury, then clients tend to intuitively know that he/she still has the capability to do some work. The more seriously injured, however, can get confused when the doctors and lawyers start talking about their “Permanent Disability.”

In California Workers’ Compensation, “Permanent Partial Disability” can amount to anything between 1% and 99%. (In nearly 4 decades I have not had a 1% case but I have seen a few stipulations for as little as 3% since the 2004 Workers’ Compensation reforms were enacted (thanks to Governor Schwarzenegger). At the other extreme, I have not seen a 99% case but I have seen a few that were close to it.

If the injured person is found to have “Permanent Total Disability,” then he/she has been found to be 100% disabled. In the world of California Workers’ Compensation, that means that he/she is seen as being someone who will not likely work in the future. While that is the theory–100% means you will never work again–I have seen cases where a person with 100% disability did in fact return to the work force. This does not happen frequently. Usually it comes about because of a combination of factors, not the least of which is the injured person’s dedication to his/her own self-rehabilitation over time. With sufficient motivation, “miracles” can happen.

So, if you are the victim of an injury and the doctors (and lawyers) start talking about your “Permanent Disability,” you need to start asking what that means in your particular circumstance. It may mean a small check will eventually end up in your mailbox to compensate (another word that may be deserving of a separate blog) you for your loss. If you have lost much of your ability to do the work you have always done, you need to have a serious discussion with a qualified attorney at The Law Offices of Maurice L. Abarr, Esq. about what can be done to provide you with as much security for your future as is possible within the context of your case. We’re at your disposal.

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NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

A Change In Perspective: Settlement Of Future Medical Benefits

Written by Maurice Abarr on . Posted in Workers Compensation

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As I have alluded to in previous blog articles, the process an injured worker in California must go through in order to access medical care has become a maze of tedious regulations and timelines. It seems that the employer and insurance carriers’ “due process” rights are being given a greater priority than simply providing medical care to injured workers.

Easily 20% of my time (and probably 35% of my staff’s time) is now spent dealing with Utilization Review(s) (UR) denying our clients access to medical care. Before 2013, we had to go to a Qualified Medical Evaluator (QME) from a Panel of three doctors issued by the Division of Workers’ Compensation Medical Unit in Oakland, California. That process would ordinarily take up to three months and then we might still need to go to a hearing which would take another one to two months. In a word, maddening.

In the latest “reform” of the Workers’ Compensation laws near the end of 2012, the Panel QME process was eliminated for deciding “medical necessity” disputes (i.e., Should the injured worker get the treatment his treating doctor prescribed or not?). Instead, a new process called Independent Medical Review (IMR) has been put in place. IMR is conducted by a company called Maximus, a large organization that has been doing reviews of medical-necessity disputes for the federal government and private health insurers for many years. The reality of this new process is:

  • The name of the doctor doing the review is not disclosed.
  • There is almost no opportunity to appeal an adverse IMR decision (which upheld the UR decision to deny the injured worker the care his doctor prescribed).
  • Even if you do appeal—and manage to prevail—all that happens is that your issue is put through the IMR process all over again with a different reviewing doctor.
  • The injured worker is “stuck” with that denial of medical care for 1 year, unless there has been a material change in circumstances.

It appears that at least 70% of the UR denials of medical treatment are being UPHELD by the IMR process. In my experience, the percentage is even higher.

For more than 30 years Workers’ Compensation practice, I have generally urged my clients to hold on to their rights for future medical care under the Workers’ Compensation system and not settle those rights (i.e., “sell their rights to future medical”). Because of this latest IMR process, my advice has evolved. There are still some clients with medical needs that have little likelihood of coverage through other means (e.g., Medicare). For them, I believe it’s prudent to retain their rights to future medical in Workers’ Compensation—despite the problems we see with the IMR process.

In general, my opinion now is: Settle the future medical. Get what you can out of the Workers’ Compensation carrier or claims administrator and look for alternative means for medical coverage outside of the Workers’ Compensation system. The Workers’ Compensation system, especially with respect to current and future medical care, has been reduced to a farce.

The only rational approach is to get out of the Workers’ Compensation system as quickly as possible. There is little, if any, advantage to remain in the system as currently constituted for your future medical care.

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NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

Settlement of Future Medical in Workers’ Compensation (Part I): The MSA Problem

Written by Maurice Abarr on . Posted in Workers Compensation

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Before the year 2000, many injured workers settled their cases for a lump sum of money and then (later) paid for the treatment of their old work injury through Medicare. Medicare paid for this treatment–at times expensive treatment involving multiple surgeries–even though the injured worker had “sold” his right to future medical care when he settled his Workers’ Compensation case. To put it simply, the injured worker took money from the employer’s Workers’ Compensation claims administrator or insurance company but did not use it to pay for his future medical treatment. This happened with some frequency–even though there had been a federal law which required anyone settling their injury case to take into consideration the interests of Medicare which had been on the books for several years.

Note: There is a concept in law which precludes an injury victim from “double-dipping”(i.e., getting paid twice for the same injury claim). There are usually two (2) main parts to the settlement of an injury or disability claim: (1) money to compensate for mental and physical losses (in Workers’ Compensation this usually referred to simply as Permanent Disability); and, (2) (in Workers’ Compensation claims) money to cover likely future medical needs. If the injured worker is paid money by the Workers’ Compensation claims administrator or carrier for the stated purpose of covering the injured worker’s future medical needs but later gets Medicare to cover the future medical costs attributable to injuries covered in the previous settlement, he or she is getting “paid” twice for his future medical costs–this is “double-dipping”. 

Before 2000, an injured worker with a low back problem that his doctors were telling him required surgery might settle his Workers’ Compensation case and receive, for example, $30,000 in addition to the value of his Permanent Partial Disability. The additional $30,000 would be characterized as being for “future medical” treatment The same worker who settled his future medical for $30,000 then might wait a few years, until he is entitled to Medicare benefits, and then begin treatment with a doctor who accepted Medicare. Later, that doctor would request authorization from Medicare to proceed with low-back surgery. If the clinical findings supported the surgery, Medicare would ordinarily give the doctor authorization to proceed with the surgery. The worker may have spent the money from the settlement of his future medical or he may simply be saving it. In either case it violated a federal law which has been in place for several years, but was not enforced until 2000.

This pattern of “double-dipping” had gone on for many years. The Federal Government was aware of the practice of injured workers using the money from the settlement of their future medical for things other than their future medical care. But nothing was done about it until 2000 when the Bush Administration urged Medicare to start enforcing the law.

Some injured workers have objected: “I paid into those benefits. That is my money. I am entitled to get my medical taken care of through Medicare because I am on Social Security Disability and it is a benefit I have earned with my years of work.” While one might agree with these sentiments, it’s inconsistent with the interpretation of federal law. Federal law says that Medicare is a “Secondary Payor”–which means if there is someone primarily responsible for the payment of the medical costs incurred, then that party must pay for the current and future medical costs—instead of Medicare. Medicare only pays when there is no primary party responsible for the medical costs (or when the funds available from the primary party have been exhausted for medical care). So, in the example referenced above, the federal law interpreting the right of Medicare to insist that its “interests be taken into consideration” when a Workers’ Compensation claim is settled requires that the settling worker spend the $30,000 he realized from his settlement towards the treatment of his back before he asks Medicare to pay any of the medical bills associated with his back.

To further complicate matters, the warning that was issued by Medicare in 2000 to the attorneys in California representing injured workers evoked panic in the insurance industry. Almost immediately, Workers’ Compensation insurance companies and third-party administrators began insisting that any global settlement involving significant money for future medical must include a “Medicare Set Aside” account (MSA). If the total settlement exceeded $25,000 some carriers insisted–and still insist–that the MSA also be approved by the Center for Medicare/Medicaid Services (CMS).

So, what does this mean? After the injured worker is essentially released or declared Permanent and Stationary (P&S) or at Maximum Medical Improvement (MMI), the medical billings for the previous two (2) years on the Workers’ Compensation claim involved are submitted to a private vendor selected by the insurer or administrator. Based upon apparent future medical needs of the injured worker, as defined by the evaluating and treating doctors and his life expectancy, the future costs of medical treatment that would otherwise be covered by Medicare is projected–based upon Medicare rates. That projected number is then reduced to present value.

After the essential calculations have been made, an amount of money is determined to be needed to fund–either completely at one time or with periodic payments–an MSA that will cover future medical needs that are ordinarily covered by Medicare, at Medicare rates. Once this number has been calculated–assuming the parties still wish to proceed with a global settlement*–the proposed MSA is submitted to CMS for its approval.

Here’s the real problem: CMS can take several months to review and either accept or reject with suggested modification the proposed MSA. While the speed of approvals seems to be gradually increasing, any problems with the Federal budget may impact the efficiency of CMS’ approval process.

The Options

  • Some cases can be settled for a lump sum for the Permanent Partial Disability alone–leaving the future medical still “open” as a right in the Workers’ Compensation system. In the right case this can work…but usually not.
  • Settle the case with a calculated MSA included as part of the terms of the settlement document and simply not submit the MSA to CMS for approval. Some carriers are becoming more open to his approach. It depends on the size of the settlement, the nature of the injury (and likely future needs), and who the carrier is.

If the carrier balks at settlement because the MSA number is “too high” in their estimate, sometimes you can legitimately work with the carrier and the evaluating doctors to obtain a lower MSA number. If CMS approves the MSA, the injured worker is usually protected for the future. (Caveat: If CMS is given bogus information about prospective cost of future medical this protection could be lost. It is important to review what information is being provided to CMS.)

Finally, it is usually advisable for the injured worker to endure the delay that occurs with the MSA and CMS procedures. If CMS approves the MSA and the worker follows the rules with how he spends the money in the MSA account, CMS is in effect saying: We have your back. If the vendor and we at CMS got it wrong…if you follow the rules and have to spend all your MSA money for medicals relating to your settled case, CMS will step in and pick up the slack…Medicare will pay your future medical after you spend all the MSA money for medical treatment covered by Medicare at Medicare rates. This is a good thing. It provides ultimate security for the injured worker and his future.

The Bottom Line

The disappointment, of course, is that you do not get to spend that “extra” money that you get from settling your rights to future medical. However, you are out of the sometimes horrible delays and frustrations of trying to get medical treatment in the Comp system, you have the security of money for future medical and, in the event that you do not spend the money in the MSA account, it will usually revert to your heirs. Not the most positive point possibly but one assumes you’d rather that your family got the money than the insurance company.

———————–

* Unfortunately, some settlement “deals” simply fall apart when the MSA number is unusually high. Essentially, the insurance company or administrator says to itself–maybe to the injured worker as well–we are never paying that. We will fight the medical costs in the Workers’ Compensation system and never pay what CMS expects for an MSA. This whole conundrum will be the subject of an upcoming blog, “Settlement of Future Medical in Workers’ Compensation (Part II): Do I Stay Or Do I Go?”

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NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

 

For The Veteran: The First Year After Discharge

Written by Maurice Abarr on . Posted in Veterans Disability

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Most people exiting military service are eager to get home to family and friends. Near the end of their term of service, they go through medical screening to theoretically ascertain their medical status–including any impairment or loss of function due to their military service. It is an unfortunate fact that veterans are returning home with impairment and disabilities in much greater numbers than was the case in previous conflicts.

In their eagerness to pass quickly through the medical-screening process–and to avoid the delays that come with reporting any impairment or medical condition which has, is, or may cause disability–some service folks are simply taking what they think is the “high [read: “fast”] road” out of the military. They’re not reporting the loss of function they are experiencing. Moreover, they may be in denial about mental or emotional symptoms that persist. They just “suck it up”. . . part of the time-honored military culture of being self-reliant, resilient, and just plain “tough.”

The point of this brief discussion is not to be critical, but to focus attention on problems you may face that are a consequence of your military experience. You may be less able to function back in “the world” as you once did. If so, you need to get to your nearest VA Medical Center and report your symptoms and your problems. Tell the doctors and the other medical personnel (nurses, physician assistants, therapists, etc.) everything that is restricting you in living your life–what medical people refer to as ADLs (Activities of Daily Living).

If you are experiencing physical limitations from a part of your body that was injured while in the service, get treatment and medical attention for it–preferably at a VA sanctioned medical facility. If you are having emotional or psychological dysfunction that connect back to your experiences in the military, this can be as disabling as physical injuries–get treatment, get counseling. Do not delay.

If the physical limitations from your service-connected injuries have reduced your ability to function and earn a livelihood, then you need to make a claim for service connected disability. If your psychological symptoms are persistent and hinder you in acquiring or maintaining employment and/or social relationships, then you need to make a claim for that service-connected disability as well.

  • If you are still within one year from the date of your discharge, then you may be entitled to retroactive benefits going back to the date of discharge. If you let the first year go by without making your claim for service-connected disability, you probably have lost the option of getting any retroactive benefits before the date you finally make your claim with the VA.
  • If you have service-connected disability, make a claim with your local VA Regional Office. If you are still within one year from the date of discharge, get your claim on file before that year has passed.
  • Even if you are now past the year, get your claim on file with the VA for your service-connected disability.   

If you feel like the VA has not fairly addressed your claim for disability, contact this office and we will do our best on your behalf.

The Second “Fiscal Cliff” in Workers’ Compensation Claims (Part II)

Written by Maurice Abarr on . Posted in Workers Compensation

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(Scroll down to see Part I posted 28th February 2013)

DISCLAIMER: We are not professional, licensed, or certified financial planners.

However, we sometimes feel as though we’re serving in such a role with clients who have a permanent disability that’s either going to preclude their return to the work they were doing when they were injured (Partial Permanent Disability) or are unlikely to ever return to work in any capacity (Total Permanent Disability). We have discussed the first abrupt change in the flow of monetary benefits in Part I of this topic when the Temporary Total Disability (TTD) benefits have stopped. Ordinarily, the TTD benefits stop about two (2) to three (3) years after the date of injury.

As I explained in Part I, some of the interruption in the financial life of our clients can be overcome by applying for State Disability Insurance (SDI) benefits within the first 18 to 24 months after the date of injury. When you are opening an SDI claim while still receiving TTD benefits, you will not be receiving SDI benefits until the TTD benefits stop. Then, you “re-open” the SDI claim you started several months before and start the flow of SDI benefits (which are frequently about the same amount as you were receiving in TTD benefits).

However, SDI benefits will only be paid at the full rate for up to one (1) year. So this benefit, too, will eventually come to an end. That end is what makes for the “Second Fiscal Cliff” in your Workers’ Compensation claim. This is where things get really tough. So, it takes some pro-active planning to reduce the impact.

WHAT TO DO? First of all, when your TTD benefits are about to run out, or you have just gotten your last TTD check and you are waiting to start receiving your SDI benefits (ASSUMING you and your employer have paid into this fund long enough for you to qualify for benefits), you have to ask yourself some fundamental questions:

  • Am I ever going to be able to go back to doing the work I did before?
  • How do I see my physical and mental recovery progressing?
  • Am I getting better, getting worse, staying the same?

If the future looks dark or uncertain — and you do not hold out much hope that you will be able to return to the kind of work you’ve done in your past working life (not necessarily just kind of work you were doing when you were injured), we need to pose an important question:

  • Are you able to learn a new skill in a relatively short period of time (usually between 10 weeks and, at maximum, 6 months) that is likely to equip you for new employment in the open labor market?

If you don’t perceive yourself capable of learning new job skills (or enhancing ones you have from previous work experience) so that you will again be employable, your best option is to apply as soon as possible for Social Security Disability Insurance (SSDI). You must have worked at least 20 quarters (i.e., 5 years) within the past 40 quarters (i.e., 10 years) to qualify for SSDI.

Note: If you do not qualify for SSDI, you may qualify for Supplemental Security Income which has its own separate qualifications and problems. We will discuss SSI more fully in another blog.

It usually takes between 6 to 18 months from the date you apply for SSDI benefits to get benefits coming to you. This assumes, of course, that your application is eventually approved or granted by a Social Security Judge.

Note: As mentioned above, while we do not represent clients in their application for SSDI benefits, we can refer you to specialists who handle these cases. Additionally, we can help with your application and claim process by providing medical evidence supportive of your claim.

Because it can sometimes take more than a year to get SSDI benefits coming to you (depending upon how far we have to go with your claim to get you the maximum results from the Social Security Administration). We counsel our clients to apply early for SSDI. The end objective is simple: Keep enough benefits flowing to you to keep you at as high a level of living as is possible under the circumstances.

As you can see, the first benefits are usually TTD. But, they will run out in 2 years or so. So, assuming you have are qualified and opened your SDI (State Disability) claim within the first 2 years after your date of injury, you will receive SDI for around a year after the TTD stops (assuming you have a doctor who will continue to certify you for those benefits — something most of the doctors we recommend will help you with).

Then, assuming you have qualified and started your SSDI (Social Security) claim either before or when your TTD benefits have stopped, it’s likely you will start receiving SSDI benefits before State Disability runs out.

This is the plan of action we’ve followed in many cases. And, it’s worked out successfully for our clients. The “Second Fiscal Cliff” was huge disruption in their financial life and they were able to transition through the changes in benefits without becoming destitute. It may not be a perfect solution, but it’s the best that can be done when the injury and following disability remove you from the work force.

THEN WHAT? We will either go to trial and seek the highest award we can get for you, or we will negotiate a settlement that is the best we believe is achievable under the circumstances. The final award or settlement is usually the best news we’re able to provide for our clients after (frequently) protracted litigation and battles over medical care and benefits. Sometimes, we are able to do this before you have reached the doorway to SSDI. But, in the more serious cases, this is frequently the course the case takes. SSDI is a Godsend and a lifesaver for those who find themselves at the end of their work life earlier than planned.

*****

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

The Value of the Supplement Job Displacement Benefit (The “Job Voucher”)

Written by Maurice Abarr on . Posted in Workers Compensation

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Between approximately 1975 and 2008, injured workers in California were provided Vocational Rehabilitation when their injuries resulted in a disability that kept them from returning to the same kind of work they had been doing when they were injured. The insurance and labor management lobbies banded together in the 1990s and began a concerted effort to whittle down the “cost” of Vocational Rehabilitation.

In the 1980s, I handled several cases that involved injured workers receiving Vocational Rehabilitation programs that had price tags that exceeded $100,000 in total value. The employers and their insurance carriers declared such costs to be “abusive” and raised “Holy Hell” in Sacramento through their lobbyists.

Eventually, a ceiling was put on how much could be spent on Vocational Rehabilitation. The last ceiling was $16,000. Frankly, you could not accomplish much for that amount. Consequently, injured workers routinely instructed their lawyers to “get me what you can” in cash and forget the so-called Vocational Rehabilitation benefit. As a consequence of a few years of this, the employers and insurance carriers saw a new opportunity: They argued that no one uses Vocational Rehabilitation so it should be discontinued altogether.

Advocates for injured workers in Sacramento strove to keep some semblance of Vocational Rehabilitation available for injured workers. The new benefit we ended up with for injured workers was called “Supplemental Job Displacement Benefits” or what has become known more commonly as “the Job Voucher”.

Again, significant limitations were placed on who could get this benefit. For example, if the injured worker was offered an alternative job by his or her employer that paid him at least 85% of what he or she was making at the time of their injury, they were not entitled to the benefit. The injured worker must be able to perform the essential functions of the alternative job offered and the job must be within “reasonable” commuting distance from the injured worker’s residence. Further, the employer has to pay 15% less in Permanent Partial Disability benefits if a bona fide offer of alternative or modified work is offered by the employer. However, the modified or alternative job the employer offers must last for at least twelve (12) months and the job offer must be made within thirty (30) days of termination of Total Temporary Disability benefits (California Labor Code §4658.6).

Other limitations with the Job Voucher are: If the injured worker returns to work for the employer within sixty (60) days of termination of Temporary Total Disability benefits, no Job Voucher is available. (California Code of Regulations §10133.56) If the injured worker is a seasonal worker, they return to work on the next available work date of the next work season.

As before, there were monetary limitations placed on the amount that would be spent by the insurance carrier for each Job Voucher. The amount varied between $4,000 and $10,000, depending upon the percentage of permanent partial disability awarded the injured worker. Essentially, the Job Voucher could be spent for tuition and educational materials with schools that were approved by the State of California’s Department of Workers’ Compensation. None of the Job Voucher money was paid directly to the injured worker.

Much like before, few injured workers actually used the Job Voucher – finding little value in being able to attend classes for training in jobs that may never come – and told their lawyers to settle the benefit for as much money as could be negotiated. Most insurance carriers insisted upon significant discounting of the dollar amount.

With the most recent legislative reform of Workers’ Compensation in California (SB 863) enacted in 2012 and effective January 1, 2013, two new developments have come about for the Job Voucher:

  1. The amount of the Job Voucher is now $6,000 for all injured workers who were hurt on or after January 1, 2013 – irrespective of the level of their individual Permanent Partial Disability.
  2. This benefit is supposedly not to be settled by the injured worker or the insurance company.

Note: Some of the lawyers on both sides – for the injured worker and the insurance company – may well develop a way whereby they can circumvent the new law prohibiting settlement of the $4,000 Job Voucher. We recommend those with serious injuries to AVOID the temptation to take the $4,000 or (worse) a discounted number and USE the Job Voucher.

MAURICE’S RECOMMENDATION: Do not settle the Job Voucher. Retain the assistance of a Vocational Rehabilitation counselor through my office who will accept 10% of the voucher (i.e., $400) to help guide you through the initial process I envision for you. If you are unable to benefit from a full and earnest utilization of the Job Voucher, this lack of a productive end result from that effort constitutes evidence that can be used by your lawyer. A developed inability to benefit from Vocational Rehabilitation — the stated purpose of the Job Voucher – will be evidence that can be presented to the Trial Judge in your case through a Vocational Rehabilitation expert (possibly the same counselor who guided you through the initial process).

Using the Job Voucher in this way can increase the percentage of Permanent Partial Disability. In extreme cases, it may prove Permanent Total Disability.

On other hand, if you benefit from the Job Voucher, this is good news also. And, you have a better chance of obtaining actual benefit with the assistance of a Vocational Rehabilitation counselor to whom we can refer you.

*****

NOTICE:  Making a false or fraudulent Workers Compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

 

 

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