Military Sexual Trauma

Written by Maurice Abarr on . Posted in Veterans Disability

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It’s a sad truth that a significant number of veterans experienced sexual trauma during their service in the military. It’s a big enough issue that the VA has given it a name—Military Sexual Trauma (MST). Generally speaking, MST is defined as sexual assault (up to and including rape) or repetitive, threatening, or coercive sexual harassment. If you were a victim of MST, in addition to the initial trauma, you may find that it has continued to impact you in psychological and physical ways.

If there’s any kind of silver lining here, it’s this: If you suffered MST and it impacts your current life, you may be eligible for disability compensation from the VA. As with other service-related disabilities, you still need to have three elements to prove your case. These are:

  1. You experienced MST while on active duty.
  2. You are currently diagnosed with a mental or physical disability/disabilities, and
  3. Your current mental or physical disability/disabilities were caused by, or were worsened by, the MST you suffered in service.

In other words, as with other service related disabilities, the MST by itself is not a basis for receiving compensation. You must have a compensable health condition, such as post-traumatic stress disorder (PTSD), depression, or substance abuse that can be connected to the MST.

MST includes instances of any sexual activity where someone is involved against his/her will. This includes not only physical force but also coercive threats—such as threats abusing the chain of command (e.g., threats of negative performance reviews or, conversely, promises of faster promotions)—or instances where a service member was unable to consent. Other forms of MST can include patterns of unwanted sexual advances, inappropriate physical contact, or offensive or harassing language about your body or sexual activities. Additionally, there may be instances of retaliation that occur after such an event is reported—assuming that it was reported at all.

Unfortunately, there may not be many records of such an event (or events). Not only has there been a stigma against such reporting but there may also be a gap in time between the event and when it is ultimately reported. Fortunately, the VA understands this and makes some allowances for the potential lack of medical or military records related to MST. Other forms of proof of the incident or incidents that the VA will consider include:

  1. Police records.
  2. Records from a rape crisis center.
  3. Pregnancy tests/records of pregnancy tests.
  4. Records of sexually transmitted diseases.
  5. Statements from your friends in service, counselors, or clergy.
  6. Writings in a journal, diary, or personal correspondence at the time of the MST.

Indirect evidence that might be considered includes things that changed after MST. For example:

  1. A request for a transfer after the MST.
  2. Evidence of a drug or alcohol problem that didn’t previously exist.
  3. Marital difficulties that didn’t exist prior to the MST.
  4. A sudden decrease in job performance for which there is no other explanation.

Because we’re dealing with the VA, of course, nothing is guaranteed. If you’ve made a claim based on MST and the VA has denied it, you, of course, have the option to appeal that decision. The goal of a successful appeal is to make it as easy as possible for the VA to say, “Yes.” In MST cases, mounting a successful appeal may hinge upon collecting and framing the evidence in the best possible way. Because of the special nature of cases involving MSTs, it’s a good idea to seek legal help. We at The Law Offices of Maurice L. Abarr are uniquely qualified to assist you with sensitive cases of this type. Contact us for a free and confidential consultation.

Service Connection By Legal Presumptions

Written by Maurice Abarr on . Posted in Veterans Disability

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As we’ve mentioned before, there are 3 keys to a successful claim with the VA. These are:

  1. Proving your current disability.
  2. Proving your in-service injury or illness.
  3. Making the connection between the two.

Unfortunately, proving that connection can be a challenge. It can be extremely difficult to prove any kind of causality with certain conditions—much less making the connection to something that happened while you were in the service.

Fortunately, Congress has written into law certain legal presumptions—that is, under certain specific circumstances, your disability would be presumed to be service connected. In broad terms, that means if you have a particular disability and you served under certain circumstances, then you don’t have to prove any connection between the two.

The GOOD news is that the list of potentially presumed disabilities is extensive. The BAD news is that certain presumptions apply only to a few limited circumstances of service. In general and with just a few exceptions, the presumptions only apply if you served during a time of war. And, certain disabilities apply to certain circumstances of your service. For example, certain disabilities are presumed to be service connected if you have been a POW. A different list of disabilities is presumed to be service connected for veterans who had been exposed to radiation. On top of that, for many of the included disabilities, symptoms needed to start showing to a specified degree within in a certain time after separation from the military.

To further complicate matters—even with the legal presumptions in place—the VA can deny a claim. They have the option to rebut a presumption. The GOOD news is that the presumption means that the burden of proof has shifted. The VA would need to provide affirmative evidence that your condition was caused by something else—something not service connected.

As you can see, it can be a complicated matter to match up a disability to a condition of service to determine whether your case falls under a legal presumption. Or, to fend off a rebuttal from the VA. It’s in your interest to seek qualified legal assistance. Many lawyers are not certified to appear at all levels of the administrative appeal process of a Veterans’ claim for disability. Contact us at The Law Offices Of Maurice L. Abarr for a free consultation about your Veterans Disability case.

Service Connection (continued)

Written by Maurice Abarr on . Posted in Veterans Disability

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We’ve already discussed the obvious cases of service connected disability—where a current disability is caused by a service-related illness or injury. But not every VA disability claim has to involve something quite that direct. There are a few other ways that you can make the connection to your time in service.

There is something called ”service connection by aggravation.” If you had a medical condition when you entered the military, then there should be a record of that from your entrance physical examination (which should, of course, be in your all important C-File). If that condition got worse while you were in the service, you have a potential service connection by aggravation.

As an example, let’s say at the time you entered the military, your physical showed you had some minor hearing loss. Let’s say it was not bad enough to keep you from joining the military, but it was sufficient to be recorded in your entrance examination files. As veteran, you’ve been suffering from an even higher degree of hearing loss. That could be a case for service connection by aggravation.

Of course, as with other situations, the VA could rebut the presumption of aggravation. Continuing our example, the VA might argue that your hearing loss is worse because that’s just what happens as one ages–that it’s not aggravation but rather due to natural processes.

There is good news. Generally speaking, the rule is that, “Clear and unmistakable evidence…is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.” What that means is that it’s the VA’s responsibility to prove that it WASN’T because of your service. The bad news is that the VA isn’t perfect; they can make mistakes regarding the presumptions of aggravation.

The key point here is that you shouldn’t think that just because you had a medical problem BEFORE joining the military that it will derail your claim. The specifics of your case do matter. Since we’re talking about the VA and complicated rules and regulations, the reality is that for every rule there are all kinds of exceptions. Those exceptions could work for you or against you. The best thing you can do if you think your denied claim might be a case of service connection by aggravation is to contact a qualified attorney. We at the Law Offices of Maurice L. Abarr have the necessary skills to help you. Feel free to contact us for a free consultation.

Notice of Disagreement Update

Written by Maurice Abarr on . Posted in Veterans Disability

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Everything we said in previous blogs about your Notice of Disagreement (NOD) was true—when we said it. But the Department of Veterans Affairs recently announced a significant rule change that has a big impact on how veterans can file an appeal. The currently optional VA Form 21-0958 Notice of Disagreement will become mandatory in March of 2015. This means that the “I disagree with the VA’s ratings decision & I plan to appeal” letter or even the VA Form 21-4138 Statement in Support of Claim will NOT start your appeal.

So what does this mean to you? There’s still a ONE-YEAR deadline from the date of any VA decision you wish to appeal within which to start your appeal. Because of the inherent detail involved in the new NOD form, it means that it’s even MORE important to start your appeal process as soon as possible. As soon as you get your determination from the VA on your claim, request a copy of your Claim File (C-File)—more about that will be coming soon—and start work on the new NOD form.

The rule change notwithstanding, everything else we said before is still true. Form 21-0958 can be tricky and it may be a good idea to get qualified legal assistance to fill it out. You still need to keep a copy of it. And, it still needs to be sent to the VA office that sent you the decision letter from which you are appealing. Of course, you still need to send it in a way that proves that you sent it…and so on.

This VA rules change highlights a critical and overriding concept that you’ll need to keep in mind during the process of your appeal: the governing law and the rules that come from that law are NOT set in stone. It’s the responsibility of anyone that helps you during this process—whether you hire an attorney or go to a Veteran’s Service Organization—to keep abreast of those changes and make sure that they’re followed to ensure a fair hearing of your case. We, at The Law Offices of Maurice L. Abarr, are fully-equipped to help you. Contact us for a free consultation.

Deadlines Matter

Written by Maurice Abarr on . Posted in Veterans Disability

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We’ve mentioned a few times how important deadlines are when you’re going through the appeals process on your VA disability claim. After all, you could do everything right, have all the necessary evidence assembled, and have all the forms filled out properly. But, if you miss a deadline, all that work is for naught. So we can’t emphasize enough the importance of keeping an eye on all the important deadlines in your appeals process.

An issue that’s come up recently is when the countdown actually starts. You probably know that you have one year to file your Notice of Disagreement (NOD) but when does that year actually begin? It used to be a fairly simple date to find:

NOD1a

The VA formerly delivered a very clear response to a veteran’s initial claim with a cover letter that said “Ratings Decision” along with a date. That date (or the date of the cover letter accompanying the Rating Decision) was the starting bell for the one-year deadline.

The VA, however, has changed the format of their “decision” letter. It now looks like this:

NOD2

As you can see, there is no longer a clear heading that reads, “Rating Decision.” Unfortunately, this has led to some confusion as to whether the clock has started on the deadline.

Make no mistake, the clock is most definitely running. Even though that nice “Ratings Decision” heading (along with a date right underneath that heading) is no longer a part of the VA’s decision letter, this is their legal response to your claim for service-connected disability and the deadline for your NOD is counting down. Unfortunately, to find the start date and to figure out the corresponding deadline, you have to scrutinize this new decision letter more closely. There is usually a date stamped some place on the letter. You count from this date. If there is none, we suggest that you save the envelope the decision came in–assuming that it is clearly postmarked. If you have lost the envelope (or the postmark is not legible), we recommend that you write a letter to the Regional Office issuing the decision letter–enclose a copy of the undated decision letter–and request the VA to tell you the date they have in their records as the date it was sent to you.

If you’re at all unclear as to whether you’ve received your actual Ratings Decision or whether the countdown for the deadline for your NOD has started, then please seek qualified legal assistance. This is too important to lose your right to appeal because of a missed deadline. If you need help with your case, feel free to call upon us at The Law Offices of Maurice L. Abarr for a no-cost initial consultation.

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.

*****

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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