Top 10 Reasons Adjusters Use to Deny Your Workers’ Comp Claim

1.   No accident arising out of and in the course of employment – Adjuster alleges that you did not suffer an accidental injury while at work.  Sometimes this means there was no accident and sometimes it means you may have a condition that is not work-injury related.
2.   Intoxication or drugs – Adjuster claims that although there was an accident, they don’t have to pay you because you ingested alcohol or drugs which is what caused the accident.
3.   Horseplay or willful misconduct – Adjuster claims although there was an accident, once again they don’t have to pay you. In the case of horseplay, you were the instigator and not an innocent bystander. And in the case of willful misconduct, for example, the adjuster claims you obstinately refused to wear a safety harness, and not just forgot, which resulted in the accident.
4.   Scheduled lunch or rest break – Adjuster claims that you were injured when you were on a regularly scheduled lunch or rest break and had freedom of action to do what you wanted during your break including leave the premises.
5.   Deviation or detour – Adjuster claims that you were injured when you deviated or took a detour from your employment duties to engage in a personal mission.
6.   Idiopathic condition – Adjuster claims that you were injured by a condition that is personal to you. For example, you passed out due to a seizure and fell and hurt your back on the floor.  Because the seizures are personal to you, the fall is not covered.  However, the back injury would be covered if your back struck a table, desk or piece of machinery as you fell.
7.   Independent contractor – Adjuster denies your claim because you are not an employee.  In order to be covered by workers’ comp, there must be an employee-employer relationship.  Many employers try to avoid paying for workers’ comp insurance by alleging that their employees are independent contractors when they are actually employees.  Does the company have “the right” to control what you do?  Does the company have the right to tell you what time to be at work, what to wear, what to do, when to do it, and how to do it? The determining factor is whether the company has the right to exercise control over you, even if the company doesn’t actually use it.
8.   Statute of limitations bar or no notice defense – Adjuster denies your claim because the statute of limitations has run. There’s a one year statute of limitations that runs from the date of accident. If the insurer paid medical benefits, the statute of limitations is extended from the last furnished remedial care.  This is tricky because not all medical treatment is considered remedial. Best practice is to file a WC-14 Notice of Claim within one year of your date of accident to toll the statute of limitations or talk to an attorney to determine when your statute of limitations runs. If you were paid temporary total or temporary partial disability benefits, there’s another statute of limitations to consider and that’s the two year statute if you become disabled within two years of last payment of temporary total or temporary partial disability benefits. To toll the two-year statute you will need to file a WC-14 Hearing Request seeking additional temporary total and/or temporary partial disability within last payment of such.
Adjuster denies your claim because you failed to notify your employer of your accident within 30 days. There are some exceptions for failure to give notice: 1) you were physically or mentally incapable, 2) you were prevented by fraud or deceit, 3) your employer or your immediate supervisor or foreman had knowledge of the accident, or 4) where you have a reasonable excuse for not giving such notice “to the satisfaction of the State Board of Workers’ Comp” and you reasonably prove “to the satisfaction of State Board of Workers’ Comp” that the employer had not been prejudiced thereby.
9.  No disability or “medical only” – Adjuster denies in part by disputing entitlement to lost wage benefits. Your claim is covered as a “medical only” claim but income benefits are not being paid either on the grounds that your authorized doctor released you to regular duty work or to light duty and your employer offered you suitable light duty work from the beginning.
10.  No insurance coverage – An employer who has fewer than 3 employees regularly in service in the same business within the State of Georgia is not subject to the Workers’ Compensation Act.  In that scenario, your employer is not required to carry workers’ comp insurance. You will need to talk to an attorney to determine whether your company should have workers’ comp.  Keep in mind that your boss has the right to exempt himself and some other employees from coverage.

How to Take a Cheap Summer Vacation Within Your Limitations

As a kid, I looked forward to and counted down the days to summer vacation.  I’m from a small town in northeastern Ohio with a population of 16,000 . I spent my summers on my grandma and grandpa’s dairy farm running in the fields, jumping from the hay loft into a mound of hay and wading in the “crick” catching crayfish. My favorite part of summer though was when me and my 3 brothers, mom and dad would all pack up the family car and head “somewhere” on our family summer vacation. It was always a driving trip, 3 of us in back and 3 of us in front in an old sedan that I’d call the blue car or the white car because I never knew the make or model when I was a kid. My baby brother sat up front with my mom and dad and I’d sit in back in the middle with my 2 older brothers. I’d draw imaginary lines down the seat on both sides of me that my brothers couldn’t cross and of course they always crossed it, older brothers being who and what they are and getting their kicks out of pestering their younger sister. But those driving trips with the family were some of the best times and favorite memories that I will cherish forever. I remember one trip to Mammoth Cave, Kentucky and Lookout Mountain, Tennessee and another trip to Hershey, Pennsylvania and Egg Harbor, New Jersey that got interrupted by my baby brother’s measles and we never made it to New Jersey that year.

Summer vacation is just around the corner and got me nostalgic for those old family summer car trips.  It also got me to thinking that you have questions about whether you should travel while you have a pending claim and if you do travel if we have recommendations. Therefore, we at Affleck & Gordon advise that you check out the following website http://www.exploregeorgia.org/article/50-budget-friendly-travel-ideas-for-families for some inexpensive driving trips right here in the beautiful State of Georgia.

Reminder, please stay within your doctor’s limitations while you vacation. If you need to alternate sitting and standing then you will need to break up the drive time accordingly or have enough room to lie down so you are not sitting more than you are supposed to. Further, please avoid strenuous activities, if your doctor has you on sedentary limitations.

Have a great trip, drive safely and make some cherished family memories of your own this summer!

 

Marci W. McKenna

Top 10 Things to know about your Social Security Disability Claim

1.    You Can Apply for Social Security Disability/SSI Through Three Main Avenues:

–    Phone Application – 1-800-772-1213
–    Online – www.ssa.gov
–    At your local social security office

2.    SSDI vs. SSI – Same Medical Standard of Disability, Different Programs for Qualification

SSDI or Social Security Disability Insurance is based off of your payments of social security taxes from working over a period of time. For every 1 year that you make $5,040 (as of 2016), you will earn “4 quarters of coverage.” To be able to apply for an SSDI claim, you must have at least 5 years of coverage within the last 10 years, therefore you must have 20 quarters of coverage within the last 10 years (20 quarters = 5 years)*
*There is a slightly different formulation of coverage for someone under 30 years of age.

SSI or Supplemental Security Income is for you if you don’t meet the above-referenced earnings requirements. Something to remember about the SSI program is before the Social Security Administration will even review your case medically under an “SSI application,” you must not have too much income in your household between you and your spouse. If there is too much income from you and your spouse, you may not even be able to qualify for a medical review of your SSI claim.

3.    What Happens if You’re Denied?
You have 60 days from a denial to appeal a medical denial from Social Security. It is not a good idea to wait to the last second to appeal.

4.    Can You get SSDI if You’re Off Work for 9 Months?

The standard for Social Security is that in order to be disabled, you must be disabled for 12 months or be expected to be disabled for 12 months or longer. For example, if you left your job 3 months ago due to cancer, even though it has not been 12 months yet, Social Security or SSA could still determine that it is reasonably expected for cancer to prevent you from working for 12 months (from when you left work originally), and therefore, that you could be found disabled without having been out of work for 12 months.

5.    You Were Told by Another Attorney that He/She Would Not Take Your Case Because You Won’t Win, Since You’re Under 50.  Should You Appeal Your Denial or Give Up?

The Short Answer: No you should not give up.
Why? Every social security case is different. While a large percentage of our clients are over 50, we have represented thousands of clients under 50 with a wide range of disabling conditions.  In our opinion, it would be unfair to automatically reject a potential client based on age — examining the actual medical file is crucial to a social security disability attorney’s understanding of what is the case’s strength.

6.    You Were Denied Because SSA said You Could do Other Work, Although You’re Over 50 and Have Been a Factory Worker for Over 20 Years.  What Should You do Now?

When someone is aged 50-54 they are considered “closely approaching advanced age,”  and when someone is 55 years and up they are considered “advanced age;” — the bottom line is that what kind of work you did is very important in a social security case when you are 50 years or older. There are many complicated variations of this general rule; our lawyers are well-versed and highly knowledgeable on the intricacies of the rule.

7.    What Considerations are Important to the SSA in its Determination Whether You’re Disabled and Eligible for Disability?

The SSA will consider your medical records, doctor’s statements, and hospital records. Additionally, it will consider statements from you and third parties that know you such as friends or family in determining your overall level of functioning.

8.    Why Isn’t Your Doctor’s Statement that You’re Disabled Enough to Get Disability?

This is because the SSA does not rely on blanket statements of disability by doctors without strong support for the statement in the treatment records.  SSA will look at the particular doctor’s statement, and it will then see if the statement matches up with the overall records you have with that doctor.  If the doctor’s statement is out of line with what he/she has said or treated you for in the past, the doctor’s statement will be given “less weight.” Also, the specialty of the doctor can make the statement stronger or weaker depending on the condition for which you are being treating:  (Example: a neurologist’s opinion on seizures in their patient is stronger than a neurologist’s opinion on a heart condition, if they are not trained in that specialty as well). Doubtless, this can be a frustrating experience for many claimants.

9.    Why Isn’t the Fact You Can’t Go Back to Your Past Job Enough to Get Disability?

This is because the SSA’s standard for disability is “total” – there are no percentages of disability with Social Security, you are either 100% disabled or not disabled. If someone is under 50, all jobs in the state, regional, or national economy must be eliminated. This can certainly be shown, but as in all cases, the medical evidence is the key.

10.    You Missed the Deadline to Appeal Your Denial, is There Anything You Can Do?

Maybe. And that’s a big maybe – depending on your language limitations or failure to deliver by the postal service, you may have good cause to file an appeal outside the deadline but this is not often granted without good reason.  You should consult an attorney immediately to determine whether you can appeal the decision or whether you should file another application.