On behalf of all the attorneys and staff at the Disability Claim Law Firm of Turley, Redmond Rosasco & Rosasco, LLP, we wish you and your families Happy Holidays and a Healthy New Year!
"God Bless Us, Everyone!"
Are Social Security Disability Judges awarding too many or too few disability claims? According to an article on the Social Security disability system by Damian Paletta in the Wall Street Journal today, that will be the subject of an independent review of the federal disability system by the Administrative Conference of the United States focusing on the work of Social Security Administrative Law Judges (ALJ's). A draft of the study is due August 2012, with final recommendations due November 2012.
There is certainly a need for improvement on both ends of the spectrum across the country. Earlier this year, as reported in the New York Times, a class action lawsuit was filed against five Social Security ALJ's claiming anti-claimant bias in the Queens New York Office of Adjudication and Review. Read my affidavit that was submitted to the federal court regarding the abuses of Social Security Queens Chief Judge David Z. Nisnewitz and ALJ Seymour Fier here.
The plaintiffs in this case, Padrue v. Astrue, recently won a motion in federal court granting their request for expedited discovery. Depositions of hearing office personnel, and possibly ALJ's in that office, should begin soon. The case is being handled on a pro bono basis by the national litigation law firm Gibson Dunn. The relief requested includes wholesale re-hearings going back years for all claimant's denied benefits by the named ALJ's. This is one example of bad and abusive ALJ's contributing to the ongoing backlog of disability claims at the Social Security Administration.
On the other, equally bad, end of the spectrum is the case of West Virginia Social Security ALJ David B. Daugherty, who apparently never met a claimant who was not disabled. Unlike his brethren in Queens, New York, he was suspended for his outstandingly high allowance rate, and eventually retired. The "Queens 5" continue to hear cases. I guess granting cases is a more serious offense at Social Security than bullying and intimidating claimants, which was the M.O. for the Chief ALJ Nisnewitz in Queens. Either way, both examples of these "outlier ALJ's"" should be quickly purged from the system. The vast majority of fair ALJ's should not be tarnished by a few bad apples.
Finally, in what appears to be an attempt by the Social Security Administration to stop certain mega-advocacy firms from "dumping" weaker cases based upon the ALJ they draw for a particular hearing, Social Security is instituting a new policy starting 12/19/2011 where they will not tell a representative the name of the ALJ hearing a particular case until the day of the hearing. While the motivation to correct this problem is indeed commendable, it does seem that Social Security is using a rather blunt instrument to correct a cancer that is localized to easily identifiable bad advocates.
From a policy perspective, the use of "Surprise ALJ's" will necessarily lead to more appeals - further increasing the backlog of disability claims. I would have preferred that SSA use a "surgical strike" rather than "napalm" to resolve this problem. Tough to do in a large bureaucracy, but never-the-less worth the effort. It will be interesting to see whether the new "Surprise ALJ" policy advances the quality of ALJ decision-making.
Troy Rosasco, a Partner at Turley, Redmond, Rosasco & Rosasco, LLP, has announced that as of December 5, 2011, the actual Zadroga Act Victim Compensation Fund “Compensation Claim Form” is now available online for those who were sickened or physically injured as the result of being exposed to airborne toxins from the Ground Zero site after the September 11, 2001 attacks.
This means that eligible 9/11 claimants, with or without attorneys, can file their Zadroga Act Victim Compensation Fund claims today. According to Mr. Rosasco, “Especially during the holiday season, many sick and destitute 9/11 victims will now find newborn hope that their anguish will be lifted in the coming New Year.”
On December 5, 2011, Sheila Birnbaum, Special Master of the 9/11 Victim Compensation Fund, released the actual Compensation Claim Forms for both deceased and personal injury claimants, which are available online at www.vcf.gov.
Claimants should complete this form if they were physically injured as a result of the September 11, 2001 debris removal efforts; they were present at one of the crash sites (or in the path of debris removal) between September 11, 2001 and May 30, 2002; and they wish to be compensated from the VCF rather than file a lawsuit.
Claimants have until October 13, 2013 to complete the form. The new September 11th Fund form also has a 21 page set of "instructions" to help file your claim and a helpful "9/11 Victim Compensation Fund Document Checklist" .
While it is strongly suggested that the forms be filled out online, they can be mailed as well. Mr. Rosasco suggested that those who may be currently experiencing financial difficulty should file as soon as possible.
“Here we are almost one year after President Obama signed the James Zadroga 9/11 Health and Compensation Act of 2010 into law, and all the "pre-season" hard work of the Special Master and the Department of Justice brought us to the real “Opening Day” of the Victim Compensation Fund," Mr. Rosasco said. “Now the long season of individual compensation claim evaluations and potential hearings will begin.”
“A roadblock that claimants faced in order to get their fair share of the $2.775 billion Victim Compensation Fund has finally been lifted,” Mr. Rosasco's partner, Daniel J. Hansen said. “Thanks to the Special Master, claimants will have ample time to fill out the forms. Now that all the formalities have been taken care of, these heroes who unknowingly worked in the face of danger are able to receive the compensation they justly deserve.”
For more information, call 1(855) WTC-INFO or visit www.zadrogaclaimsinfo.com
The Wall Street Journal has an interesting article today on doctors working for the Social Security Administration (SSA) evaluating disability claims. Apparently, these doctors are "revolting" because they feel that the Agency is improperly trying to influence their medical claim decisions in order to process the current backlog of disability claims faster. The claims of these whiny doctors is all a bunch of hooey!
The only thing "revolting" about many of these doctors are the poor medical decisions they have been making for years - which in turn are a major contributor to the current backlog of claims. This is nothing new and is not caused by any recent "upheaval".
As an Social Security Disability lawyer who sees these doctors' decisions reversed on a regular basis by Administrative Law Judges (ALJ's), I can tell you these doctors rarely make well reasoned, medically justified decisions.
More often, they simply "sign off" on claim denials because it is easier than justifying an award of benefits. They simply pass the buck to the Administrative Law Judge, who may not see the claim for another six months or more, and then has to make the hard decision to grant or deny a claim.
To the Social Security Administration's credit, their recent actions are corrective in nature and intended to relieve strain on the backlog of disability claims. Social Security is simply trying to make sure that doctor's who work for them get it right the first time, thereby decreasing a claimant's wait for a correct decision on their disability claim. Score one for SSA Commissioner Astrue!
The real deal is that most of these doctors are unhappy because Social Security is now paying them for "performance" on a per claim basis, as opposed to their prior leisurely $90 per hour pace. These doctors, many of whom have been "retired" from the regular practice of medicine for decades, had a good thing going while it lasted. When asked to produce, the "semi-retired" Social Security doctors are leaving the system - plain and simple.
And as Wall Street Journal economic policy reporter Damian Paletta correctly points out, bad medical decisions often times result in severe economic hardship for claimants. The new initiative to improve the previously broken system should be applauded. Is it perfect? Perhaps not yet. But it was broken long before.
It is the most important New York workers' comp legal decision since the the legislature passed the sweeping New York Workers' Compensation Reforms of March 2007.
Today, in Raynor v. Landmark Chrysler, the New York State Court of Appeals affirmed a lower appellate court ruling upholding provisions requiring private workers' compensation insurance carriers to make mandatory Aggregate Trust Fund (ATF) deposits for claimants classified as permanently partially disabled (PPD) and injured both before and after March 13, 2007.
Based upon Raynor, if a claimant was injured on 7/1/2006 (before the reforms capping the duration of permanent partial disability (PPD) awards), but classified PPD after the reforms took place (3/13/2007), the insurance carrier must make a mandatory present value Aggregate Trust Fund deposit for the future value of the indemnity portion of the award.
For example, let's assume a worker hurt on 7/1/2006 is classified PPD at a $400/week rate of compensation on 7/1/2008. Prior to the reform laws (heavily pressed for by the business community), the private insurance carrier could have leisurely doled out the worker's $400/week over time, while holding the large bulk of its financial obligation to the worker in its own bank accounts. Now, after the clarification of Raynor, that scenario has been turned on its head.
Upon the worker being classified PPD, the private insurance carrier is obligated to deposit the present value sum of future indemnity payments into the Aggregate Trust Fund (ATF). In many cases, such deposits will be in the hundreds of thousands of dollars. This is a private workers' compensation insurance company's worst nightmare.
The New York State Insurance Fund (NYSIF) and self-insured employers are exempt from the mandatory ATF deposits, and private insurance carriers argue this gives them a distinct competitive market advantage - which is hard to dispute.
Practically, just the threat of a potential PPD classification should cause insurance companies to pull out their settlement checkbooks and pens. And this was the intention of the 2007 New York Workers' Compensation Reform legislation, at least in part.
Prior to the reform legislation, there was too much litigation on cases that lasted sometimes for decades. The business community got their cap on PPD awards while claimants got what was hoped to be a quicker resolution of their claims. However, due to this long litigation brought by the private insurance carriers, there is currently a bottleneck of thousands of potential PPD claims at the New York Workers Compensation Board. Raynor should be the "Drano" the plumber ordered!
Now that the Raynor decision has put this issue to rest, private insurance carriers should immediately start to make settlement offers to claimants to avoid the hammer of the present value ATF deposit.
The fairness of settlement offers will be based upon the ATF's present value discount tables and Board Bulletin 222-B. ( if you have questions about the fairness of your Section 32 workers compensation settlement offer, please contact Troy Rosasco at x123 for a Free Evaluation of your claim).
New York businesses should finally start to see a financial benefit from the illusory promises of the 2007 reforms. And all will be right in New York Workers' Comp Land !?? Stay tuned...
To her credit, Ms. Birnbaum appears to be running a tight ship and is rolling out this complex compensation program in a timely and understandable way. This simplicity will be of great help to victims and their families.
In an effort to assist victims with the filing of claims, the Special Master also announced two upcoming legal clinics in Manhattan staffed by volunteer lawyers. Such outreach, like her Town Hall meetings that preceded the reopening of the Fund, has quickly established Ms. Birnbaum as an equal to the much lionized former VCF Special Master, Kenneth Feinberg. US Attorney General Eric Holder should be credited for an excellent choice.
The 9/11 Victim Compensation Fund is currently taking "eligibility" applications, which are different than the actual "compensation claim" forms which will be released at the end of November 2011. Potential claimants with questions can call the official Victim Compensation Fund Toll Free Number at 1-855-885-1555, or feel free to call me at 1-855-WTC-INFO (1-855-982-4636).
I recently had the pleasure to give another Social Security Disability claim on-line video Continuing Legal Education (CLE) course. It was entitled "Social Security Disability Claims Primer" and was presented for the National Academy of Continuing Legal Education. You can sign up for the course here.
You can see my PowerPoint materials for this Social Security Disability claim seminar here. The materials are more than just a dry legal outline - I actually give lawyers tips on how to prepare client's to testify and how to best to present claims to Social Security Administrative Law Judges( ALJ's). Feel free to call with any questions.
Carolyn Fortino, a reporter with Verizon FiOS Channel 1, came to my office yesterday to interview me on the opening of the new Zadroga Act 9/11 Victim Compensation Fund. See the complete TV segment here.
We discussed the background of the 9/11 Victim Compensation Fund and how claimant's can only "register" with the Fund at this time. According to Special Master Sheila Birnbaum, actual claim forms for "compensation" are not expected until the end of November, meaning that the actual filing of compensation claims may not start until December at the earliest.
In addition to our discussion, Ms. Fortino interviewed my good friend and 9/11 survivor, Jack Delaney. Jack was Director of Emergency Medical Services for New York Presbyterian Hospital and responded so quickly to the World Trade Center that he was caught in the rubble when the buildings collapsed. (Read Jack Delaney's incredible story of 9/11 and it's aftermath here).
Anyone who reads such a story, yet fails to see the justification for the 9/11 Victim Compensation Fund, should have their head examined.
People like Jack, who will never tell you the full extent of their injuries, are the ones most deserving of benefits under the Zadroga Act, and the ones we will be fighting for.
The Associated Press today reports on the potential insolvency of the Social Security Disability program by 2017. Don't believe the "sky is falling" rhetoric - this is just silly political demagoguery by cruel policy wonks who never saw a disabled worker they either liked or respected.
These ivory tower geeks want to return to the not so distant past when the Social Security Administration's "systematic misapplication of the regulations" was "found to be covert as well as illegal", resulting in tens of thousands of legitimately disabled workers to lose their much needed, and often paltry, monthly Social Security disability check. See Dixon vs. Shalala .
There are some easy, less draconian, solutions to the Social Security disability insolvency problem. Why doesn't Congress simply make Social Security's own "Ticket to Work" program mandatory for anyone who is less than 100% disabled (the majority of SSDI recipients)? Currently, it is a voluntary program and is greatly under utilized.
What is a " Ticket to Work? ":
The Ticket to Work is a program run by the Social Security Administration. The SSA issues “tickets” to individuals who are eligible to receive them and who want training or services to help them find a job they can manage. When a worker is assigned a ticket, they then choose to assign the ticket to an Employment Network in order to obtain employment services, vocational rehab or other employment support services. If the Employment Network accepts the ticket, they will then provide the disabled individual with services that will help them find and maintain a full-time job that they can manage.
This Ticket to Work program allows disabled individuals to work on obtaining employment skills and other vocational services that will help them to perform full-time work activity in the future. If an individual who is participating in the program begins full-time employment, benefits are not automatically revoked and a probational period is granted. If, for some reason, your job attempt is unsuccessful and you determine that you are still unable to participate in substantial gainful work activity, you can have your Social Security Disability benefits reinstated under the SSA's expedited reinstatement of benefits process.
What do you think? Leave your comments below.
Troy Rosasco was recently profiled by the Long Island Business News in an article entitled "The Good Fight". It discusses his long committment to 9/11 victims and the fight to get the Zadroga Act passed. The article appeared in the newspaper's "Two Minutes" interview column and discussed the new Zadroga 9/11 Compensation Act.
We will also be publishing some newly released helpful information for 9/11 victims and first resonders on our Zadroga 9/11 Claim Info web site shortly. Stay tuned.
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