social security disability, Supreme Court

What Does The Supreme Court’s Striking Down Of The Defense Of Marriage Act Mean For Your Social Security Disability Benefits?

The United States Supreme Court struck down the Defense of Marriage Act

Today’s post comes from guest author Barbara Tilker from Pasternack Tilker Ziegler Walsh Stanton & Romano.

On June 26, 2013, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA) violated the Fifth Amendment and is therefore unconstitutional. While DOMA was in effect, the federal government did not recognize same-sex marriages that were performed in states where they are legal, such as New York.  This meant that the Social Security Administration was unable to pay certain benefits to individuals who would have otherwise been entitled to them if they were married to someone of the opposite sex. As this part of the law has been struck down, validly married same-sex couples should be treated identically to opposite-sex couples by the Social Security Administration.

There are several Social Security benefits that married individuals are entitled to that unmarried individuals are not.  The two largest programs are survivor benefits and disabled widow(er)s benefits. A surviving spouse can now be entitled to benefits on a deceased spouse’s earnings record once they attain age 60 or are disabled and age 50. These benefits, once only available to opposite-sex couples, should now be extended to same-sex couples as well. Stepchildren may now also be entitled to benefits on a worker’s earnings record, if the worker is either deceased or receiving Social Security retirement or disability benefits.

The Social Security Administration relies on state law to determine if a person was legally married. Social Security looks at the law of the state where a person was living at the time of their death to determine if their marriage was valid. It’s possible that a same-sex couple could be married in New York (or another state where same-sex marriage is legal) and then move to a state that does not recognize same-sex marriage.  According to Social Security’s current rules, the Administration would look to the rules of the state where the person lived at the time of their death to determine if the marriage was valid.

At first glance, this seems to mean that validly married same-sex couples could be denied benefits they would have been entitled to if they didn’t move. However, Social Security also recognizes a “deemed marriage” provision. In simple terms, if both partners believed themselves to be married, and acted like a married couple, and the only reason they are not validly married is “a legal impediment not known to the applicant” at the time of the marriage ceremony, Social Security will consider the marriage to be valid for benefit purposes.

We don’t know yet how Social Security will enact these provisions or what the end result will be. However, it appears clear to us that many people who were being denied benefits because of who they love will now be entitled to them.

health insurance, Workers Compensation

Opioid Use in Worker’s Compensation

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Today’s post comes from guest author Tom Domer from The Domer Law Firm.

Many of my back-injured clients use pain relief medication in the opioid family: Hydrocodone (Vicodin), Oxycodone (Oxycontin or Percocet), Fentanyl (Duragesic or Fentora), Methadone, and Codeine.  Many variations of opioids exist, each with a different level of potency. The worker’s compensation industry has labeled excessive opioid use “an epidemic, particularly targeting worker’s compensation.” The Center for Disease Control has noted the problem of opioid abuse as a national danger.

The CDC latest statistics show close to 40,000 drug overdose deaths each year in the United States, more than half of which involve prescription drugs. Deaths in which opioids are used now exceed deaths involving heroin and cocaine combined. The drug overdose deaths are more numerous that motor vehicle crash deaths and the numbers have gone up every year since the turn of the century. One contributing factor is that many work-related injuries are back injuries, for which doctors increasingly prescribe opioids for both short and long term to address pain. CDC medical epidemiologist Dr. Leonard Paulozzi recently noted worker’s compensation medical providers may be exceeding guidelines from the American College of Occupational Environmental Medicine regarding the use of opioids and how long they should be used. Dr. Paulozzi noted 42% of workers with back injuries had opioid prescriptions in the first year after the injury, most of them after their first medical visit, but 16% of those workers were still receiving opioids a year after the injury. He noted while opioids might be good for use as acute medication, for example within six weeks after the injury, continuation of opioids is not indicated beyond that short term use.

Prescription medication has become a bigger portion of medical expense in all States, especially if the worker becomes dependent or addicted to the opioid medication to control pain.  Opioids are generally prescribed for several reasons in worker’s compensation claims, including catastrophic injury with chronic pain and injury involving surgical treatment necessitating pain control and general pain control.

DLI

New Rules Reduce Prescription of Narcotics to Injured Workers

…measuring physical function and screening for risk may be new …

The Department of Labor & Industries has reduced the amount of time doctors can prescribe narcotics (opioids) for injured workers without agency authorization from 12 to 6 weeks.  This change takes effect as of July 1, 2013. After six weeks, L&I insurance coverage for opioids will depend on doctors’ use of best practices. The required best practices include monitoring whether workers are recovering their ability to perform normal activities and screening them for risks of side-effects or addiction. 

…best practices include monitoring whether workers are recovering their ability to perform normal activities…

“These changes will improve pain treatment for injured workers as well as their safety during recovery,” commented Jaymie Mai, L&I Pharmacy Director. “For some doctors, measuring physical function and screening for risk may be new practices,” said Mai. 

Practicing physicians who specialize in treating injured workers and in pain management worked with L&I to develop the new L&I opioid treatment guideline. The changes are consistent with the Department of Health’s pain management rules and are part of L&I’s ongoing efforts to improve pain treatment for injured workers. Doctors can find everything they need to implement the new treatment guideline, including authorization forms and helpful tools, at Opioids.Lni.wa.gov.

According to Mai, “We are pleased that high dosage levels have been coming down and we are seeing fewer deaths among injured workers due to pain medication.” Nationwide, since 2007 opioid-related deaths have exceeded accidental deaths due to motor-vehicles and firearms. Washington has been among the states with the highest rate of prescription opioid-related deaths.

Photo credit: Life Mental Health / Foter.com / CC BY

government

WA State Budget Passed and Signed

No Transit Funding = Unhappy Riders

Governor Inslee issued a letter noting that he had signed the budget into law, averting the shut-down of government offices and services that had been slated to occur as of July 1.  Although we are quite pleased that the shut-down was averted, just the threat of a shut-down caused a ridiculous number of man-hours to be spent preparing for the worst with ripple effects across our cases.  Frankly, some of those ripples were positive as the Claims Managers at the Department of Labor and Industries focused their attention on getting time loss compensation set up for claimants that were not already in the system to receive automatic payments.  We greatly appreciate the efforts put forth by many of the Claims Managers to address our requests for benefits before the deadline.  However, we did have negative impacts, as well, with cases in ligitation where depositions were rescheduled or notification received that, if there were a shut-down, no attorney from the Office of the Attorney General would appear on behalf of the Department.

Unfortunately, one issue that is of great importance to our clientele – transportation funding – did not get the attention it needed during the special legislative session.

Unfortunately, one issue that is of great importance to our clientele – transportation funding – did not get the attention it needed during the special legislative session.  Without a funding plan, King County’s METRO Transit will now be implementing plans for a 17% reduction in service.  This is at a time when ridership is at a peak, returning to levels not seen since the start of the recent recession, and when the need for inexpensive and effective transportation by unemployed, undereployed and disabled people is great.  It has been rumored that another special session may be called by Governor Inslee to address transportation funding.

Photo credit: TheeErin / Foter.com / CC BY-ND

Social Security

What is the Date Last Insured, and Why Does it Matter?

     A person who has been out of the labor market for quite some time before he applies for Social Security Disability (SSD) may find that his application for benefits is rejected because he cannot prove he became disabled before his date last insured.  In order to qualify for benefits in the first place, a person must pay Social Security taxes long enough to have insured status. When the individual stops working and therefore stops paying into the system, eventually he will hit his date last insured and lose his insured status. It is a little like a private insurance policy: when you stop paying the premiums, you no longer are covered by the policy.  For a person who has work steadily in his lifetime, the date last insured is arrived at and insured status lapses about five years after stopping work.

 The Social Security Administration has another program for the medically disabled called Supplemental Security Income (SSI) where there is no date last insured rule, but there are other program requirements and limitations. In a future article, we will explore the differences between the Social Security Disability (SSD) and Supplemental Security Income (SSI) programs.  

     As an example of how the date last insured issue can prevent a person from getting Social Security Disability (SSD) benefits, consider the case of a 35 year-old woman who has worked steadily since her late teens. She and her husband have twins when she is in her mid-30s. There are a lot of late night feedings and diapers to change! She stays home to take care of the twins while her husband continues to work to support the family. When the twins turn five, she begins to think about returning to work, perhaps when they go into first grade a year or so later. Five years has passed, and she reaches her date last insured. She loses her insured status and has not yet returned to work. When the twins turn six, she gears up her job search, but has not yet re-entered the labor market. Then medical catastrophe strikes: she has a very disabling stroke – unusual in a person this young, but not unheard of. She clearly cannot work. She applies for Social Security Disability and is turned down because she did not become disabled before her date last insured. Unlike the Social Security Retirement program, where it is possible to collect Social Security Retirement (SSR) benefits on the earnings record of one’s spouse, the Social Security Disability program only allows for benefits to be paid on the basis of one’s own earnings record.

     Consider another scenario with this family of four. When the twins are three, mom is diagnosed with Multiple Sclerosis. This condition can progress slowly or more quickly. In her case, she suffers a fairly quick progression of symptoms. By the time the twins are six and going into first grade, she is ready to return to work, except that she is suffering a variety of MS symptoms, including the profound fatigue that is experienced by many with this disease. Her combination of symptoms prevents her from working, so she applies for Social Security Disability. She passed her date last insured when the twins turned five. Will she get benefits? That depends. She certainly can apply for benefits after her date last insured, but she must be able to show that her symptoms had become sufficiently severe to prevent her from working before her date last insured. We have handled many cases where the individual is out past his or her date last insured. The key is to obtain all of the medical records that help to document the seriousness of the medical condition before that date last insured. Sometimes these can be buttressed with statements from family members or close friends who were in a position to observe at close range how seriously the person’s medical condition was affecting her functioning prior to the date last insured. In the case above, a statement from the husband likely would be helpful.

     The Social Security Administration has another program for the medically disabled called Supplemental Security Income (SSI) where there is no date last insured rule, but there are other program requirements and limitations. In a future article, we will explore the differences between the Social Security Disability (SSD) and Supplemental Security Income (SSI) programs. 

 

Photo credit: Јerry / Foter.com / CC BY

Unemployment

Unemployment Law Project’s June Fundraiser

Pink Slips – a Universal Message

The Unemployment Law Project provides legal assistance and information to people in Washington State who have been denied unemployment benefits or whose award of benefits is challenged. ULP’s annual summer fundraising event – “Pink Slip Protest” – was held on June 18th at Fare Start in Seattle. A pink slip refers to the practice of including a pink discharge notice in an employee’s pay envelope to notify the worker of his or her termination or layoff. Receiving a pink slip has become a metaphor for the termination of employment.

The evening started with the featured entertainment by a three person Mariachi band! We then heard “reports from the streets” from the Cherry Street Food Bank, the Transit Riders Union, YouthCare, and other organizations, who shared how they are supporting people who have fallen on hard times due to the economic downturn. The keynote address was given by Jeff Johnson, President of the Washington State Labor Council. Mr. Johnson’s speech caused the room to fill with applause in response to his calls to join together in the effort to improve the lives of everyone through establishment of a living-wage standard, among other things.

ULP has been a great resource for us and our clients who encounter difficulty obtaining unemployment compensation benefits.  It was great to see an outpouring of support for the services they provide, free- or low-cost to claimants.

 

Photo credit: chavelli / Foter.com / CC BY-NC-ND

State Government

State Agencies to Close if No Budget Passes – DLI & Board of Industrial Insurance Appeals On the List

The Washington State Capital

Although Governor Inslee has indicated that it is not likely that the State will be left without a budget when the June 30th deadline arrives, preparations have been made, just in case.  The Office of Financial Management has outlined 34 agencies that would close, in whole or in part, if a budget is not passed.  The OFM summary of agency impacts outlines the contingency planning for state agency operations.

Contact your legislators and let them know how this budget fight impacts you and your families. 

On the list are the Department of Labor and Industries and the Board of Industrial Insurance Appeals, both of which handle claims and cases pertaining to injured or disabled workers.  The Department would be reduced to two full-time employees assigned to respond to emergencies across the state and to administer benefits to crime victim claimants.  Those injured workers that are set up to receive automatic payments will continue to receive their compensation but no pending applications for benefits will be processed. A significant number of our clients are waiting for decisions from their Claims Managers to establish their entitlement to time loss compensation, whether back-pay or current/ongoing payments or both.  These cases would be put on hold until a budget is passed and the staff return to their desks.  The Board of Industrial Insurance Appeals will be completely shut down.  All scheduled hearings, conferences and other proceedings will simply be cancelled until the judges and staff return to work.

Pink slips will be sent to all State employees to be laid off during any potential shutdown of State government offices.  Due to notice requirements, the notices will go out Monday, June 24th.  I encourage you to contact your legislators and let them know how this budget fight impacts you and your families.  You can find the contact information for your legislator at:  http://app.leg.wa.gov/DistrictFinder/.

Photo credit: Bluedisk / Foter.com / CC BY-SA

Transit

Brazil Protests & Transit and Spending Issues at Home

Brazilians took to the streets in Sao Paulo, Rio de Janeiro, Brasilia and in smaller cities across the county in protest sparked, in part, by anger over increases in transit fares during a time when the government is spending in excess of 12 billion dollars to build new sports stadiums in preparation for hosting the 2014 World Cup and 2016 Olympic games. 

What started out as peaceful protests underwent a rapid escalation after complaints that police responded disproportionately with rubber bullets, tear gas and violent beatings. Coinciding with the start of the Confederations Cup – a World Cup test event – the rallies brought together a wide coalition of people frustrated with the escalating costs and persistently poor quality of public services, lavish investment on international sporting events, low standards of healthcare and wider unease about inequality and corruption. After a week of protests, the leaders in Sao Paulo, Rio de Janeiro and other cities bowed to the pressure and agreed to cancel the bus and subway fare increases.

Here at home we face similar issues in Seattle, King County and Washington State.  Millions of dollars were spent on planning and land acquisition to “bring back the Sonics” (even though we would not be bringing back the Sonics, our basketball team purchased and moved to Oklahoma, but would be taking a team away from another city full of adoring fans in the same fashion).  Now, discussions are underway to renovate portions of the Seattle Center to try to secure a NHL hockey team.  These recent sports-related spending sprees come on the heels of the baseball and football/soccer stadiums built over the past several years, often in spite of repeated voter disapproval. 

While the spending seems limitless for professional sports venues, King County’s Metro Transit has had rate increases each year over the past four years paired with drastic cuts to routes and service levels.  Metro’s routes and schedules are now focused on primarily providing service to general commuter traffic with cuts to non-peak runs and elimination of several routes.  This decrease is seen by some as discriminatory, as the disabled, unemployed or under-employed now have less service available at a higher cost, when they can least afford it, particularly with the removal of the free-ride zone in downtown Seattle.  Some neighborhoods and small business areas have been left with no service at all, as well. 

The Washington Legislature adjourned Tuesday, June 11 in Olympia with no agreement on either the state Operating Budget or the Transportation Revenue package.  A second Special Session was immediately called by Governor lnslee. These two important issues have yet to be resolved after over four months of negotiations and budget talks. The lack of transit funding will jeopardize the service, safety, and affordability of King County’s bus service. Without new funding options, King County Metro will eliminate 65 bus routes and reduce service on 86 more in 2014. These changes are estimated to impact 70% of bus riders in King County.  These changes are in addition to the sweeping changes made last year with the most comprehensive overhaul of the transit system in decades.

Crowded busses, higher fares, fewer routes, less frequent trips, at a time of record levels of bus ridership fueled by economic concerns, high unemployment, and lower wages for those that have found work.  Higher numbers of disabled, displaced people requiring travel  – to obtain supportive services, receive health care, apply for or commute to jobs – are tapping into a transit system squeezed down to a fraction of the previously offered service.  Why are there not protests here at home?

Here’s what you can do, today: contact your legislator at 1-800-562-6000 and tell them you support a transportation bill that includes state support and local funding options for transit.

 

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insurance regulation, private investigator

Private Investigators in Workers’ Compensation

Corporations sometimes hire private investigators to verify that your claim is not fraud
Corporations sometimes hire private investigators to verify that your claim is not fraud

Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.

As a workers’ compensation attorney I find it interesting that many people in the public question the disability status of injured workers. Let’s assume for the moment that you have sustained an injury on the job and you’ve been out of work for 5 months after back surgery. When you are unable to return to work quickly, the insurance industry has a lot of tools at its disposal to verify your disability status. They can pour over your medical records, pre- and post-injury, looking for any piece of evidence to deny your claim. They can send your file to lawyers who review medical records and recorded statements to potentially attack your credibility and honesty. They can hire a nurse to attend your appointments and speak with the physician and the staff, as well as obtain information directly from you. They can do background searches on you to see if you have a criminal or civil record. Obviously they will check to see if you ever filed a workers’ compensation claim before. They will also do social media and Internet searches on you and your family members (Facebook, Twitter, LinkedIn, etc.). They also can hire private investigators to follow you and your family around and take video recordings of your activities. With all these resources at the disposal of the insurance company, it’s hard to believe that many cases of employee fraud slip through the system.

A private investigator pretended to be a potential buyer and spent an hour or more going through the house.

We have one client recently who was followed by several private detectives for more than a year. They not only followed him around, but also followed his wife and son, who have no workers’ compensation claim. Another client had to sell his house because of his disability. A private investigator pretended to be a potential buyer and spent an hour or more going through the house. Does the concept of “Big Brother” come to mind? Are you concerned about invasion of privacy, particularly for family members, friends, and others who may be seen in such videos? We always tell our clients such activity may occur so don’t be alarmed by it, but that isn’t too comforting to people who are struggling through health issues, who have depression and anxiety problems, and who are sensitive to privacy concerns.

It would be interesting if the roles were reversed and employers who underpay premiums by misclassifying the status of their employees, who fail to purchase insurance required to protect their workers, and who don’t follow proper safety regulations that cause injury, were followed this closely by employees or regulators who administer the workers’ compensation program. I have no doubt that these employers and insurance representatives would be outraged.

 

 

Workers Compensation

Careful What You Wish For: Denying Worker’s Compensation for Undocumented Workers

Today’s post comes from guest author Charlie Domer from The Domer Law Firm.

In Washington State, undocumented workers are allowed to receive workers’ compensation benefits if injured in the course of employment. Many issues unique to this circumstance arise in such claims, including difficulties in documenting date-of-injury wages and job offers made during the course of a claim that require proof of eligibility for legal employment used as a tool by employers to truncate receipt of benefits by workers injured while in their employ.

Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen.  This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC’s report on work-related injury deaths among Hispanics.

…excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.

When injured, are these undocumented workers eligible for worker’s compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker’s compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers’ labors. Additionally, excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants—a practice that is against federal law.

The worker’s compensation laws in our country do not have a definitive answer to this question—though the trend is toward coverage of undocumented workers. Many states do Continue reading Careful What You Wish For: Denying Worker’s Compensation for Undocumented Workers →

Published by Causey Wright