Debunking Disability Fraud Myths

Debunking Disability Fraud Myths

A set of recent articles in the New York Times set astir notions of fraud being rampant for disability benefits under the Social Security Disability Fund.   In one of the articles, comment was interpreted that current legislation pointed to the belief by some that the fund was not work protecting until the perceived abuses could be better governed.

There is an excellent policy brief from the Center on Budget and Policy Priorities that explains the disability system in good detail.

While there is a perception, there are facts that override the perceptions, some are:

  • Getting on disability is difficult. There is a myriad of requirements just to qualify, and nearly 60% get turned away.  Some of the requirements are work force participation of 25% of the applicant’s life and the ability to demonstrate work in 5 of the past 10 years.
  • Some are rejected for a technical reason or simply haven’t worked long enough and to qualify the disability, whether physical or mental, must be severe.
  • Of the mere 40 percent of applicants who are accepted, it is common for the applicant to have been rejected on the initial request and have been subjected to additional scrutiny.
  • While physical disorders, which constitute the majority of claims, are easier to identify, some raise concern that others are less obvious such as back issue or depression or other mental disorders.  However, these mental disorders can be diagnosed and can be extremely debilitating for those who suffer from them.  There are real issues for those who suffer from injury or disease of the brain and conditions such as bipolar disorder or schizophrenia.
  • If there was rampant fraud, the death rate wouldn’t be as high as it is with disability recipients up to 6 times more likely to pass away as compared to others in an equivalent age group who aren’t on disability.
  • Claims are going up but not at a disproportionate rate to the population most likely to require this assistance.  The age group, starting with 50-year olds is larger with baby-boomers coming of age and there are more women that are eligible as since the post-World War II generations produced more working women.

disability fraudThe problem is not solved just by raising the bar of difficulty for persons to participate in the disability system as too many are shut out today and while there is certainly some fraud, it isn’t rampant. As it sits, the US has a very restrictive and limit benefit offering compared to many other similar economies per the Organization for Economic Cooperation and Development.

It does seem that the solution requires a legislative cure.  The cure would include financial support to the Social Security Administration that would allow it to develop and deploy a system to prevent and detect fraud.  To this point, there has been no such legislative remedy.  It is also important to note that in the last 20 years, resources available to the Social Security Administration have declined even as claims have increased as the largest component of the population is aging into the sweet spot.

If you would like to find out more information about a disability claim, please contact Edelstein Martin and Nelson.  To arrange a free consultation with one of our experienced disability attorneys in Philadelphia, call 215-858-8440, or toll-free 866-532-2504 or contact us online.  

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Subverting the Constitution

Brett J. Talley

The news, if you care about the courts and the constitution, was pretty awful last week. The lede in this LA Times story was the the Senate Judiciary Committee rubber-stamping a grossly unqualified and incompetent judicial nominee.

How do I know he was grossly unqualified and incompetent? Because he is just three years out of law school and has never tried a case:

Brett J. Talley, President Trump’s nominee to be a federal judge in Alabama, has never tried a case, was unanimously rated “not qualified” by the American Bar Assn.’s judicial rating committee, has practiced law for only three years and, as a blogger last year, displayed a degree of partisanship unusual for a judicial nominee, denouncing “Hillary Rotten Clinton” and pledging support for the National Rifle Assn.

On Thursday, the Senate Judiciary Committee, on a party-line vote, approved him for a lifetime appointment to the federal bench.

And so while various politicos think and talk in terms of grooming judges for future higher judgeship where they can become activist in shaping policy and interpreting laws and the constitution in a way favorable to their political ideology, those of us in the trenches are forced to practice law in front of them. But this potential judge has never brought a case or even argued a motion:

“He’s practiced law for less than three years and never argued a motion, let alone brought a case. This is the least amount of experience I’ve seen in a judicial nominee,” said Kristine Lucius, executive vice president of the Leadership Conference on Civil and Human Rights.

Once upon a time, a judicial appointment was the capstone of a career spent in the law, with new judges bringing the wisdom of their decades of experience. Now it is turning into a political training ground for clueless baby lawyers.

But it is not enough to rail against Trump for doing this, because Trump only nominates. And nominating/appointing the most competent people to positions has not exactly been the hallmark of his administration.

Talley can only take the bench if the Senate says so. So far, the Judiciary Committee, which should know better than to sabotage the Constitution, simply bent over for Trump and took it. It is inconceivable that any person on that committee believes Talley has the competence for being a judge.

So what can go wrong? The people that will suffer are litigants who are force to come before him if the Senate continues the Judiciary Committee’s rubber stamping.

And if you think this will auger well for those of a conservative bent, under the theory that Talley is merely a political hack who will do their bidding, then I think you’re mistaken. Bad rulings lead to appeals. And delays. This is money and time. Getting a favorable ruling in the trial court only to be reversed on appeal is not a benefit.

There are many lawyers who, if a judge is about to commit reversible error, will stop the judge even if the ruling would favor them at trial. Because a tainted verdict is quite often a very bad problem. (Others, of course, will gleefully grab the bad decision and just worry about the ramifications later.)

The Senators know what they should do. The question is will they have the courage? Will they show respect for our Constitution? Will they allow incompetence to take the bench?

We will find out soon.


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Important facts regarding traumatic brain injuries

According to the U.S. National Library of Medicine, millions of people suffer traumatic brain injuries (TBIs) in America each year.  The majority of these are severe enough to require immediate medical attention.  In the worst cases, permanent brain damage or death can result.  About fifty percent of all such injuries result from motor vehicle accidents.  Half of the more serious TBIs result in ruptured blood vessels (hematomas) or contusions (bruised brain tissue).  These have to be surgically removed when present.

Victims of TBIs may not always experience symptoms right away.  Sometimes it can take days or weeks before a person feels the full effects of the injury.  This is why its imperative that you seek medical attention immediately following an accident, whether you feel you were hurt or not.

Mild traumatic brain injuries: concussions

brain injuries in phillyThe mildest kind of traumatic brain injury is known as a concussion. Concussions can be caused by an impact to the head or any jolting movement of the head or body that caused the brain to move rapidly back and forth inside the skull.  Such sudden movement and shock and brain and damage brain cells.  Concussions do not always result in unconsciousness.  If they do, it is only for a matter of seconds or minutes.  While concussions are mild in terms of TBIs, they are still serious injuries.

Concussions can cause nausea, headaches, ear ringing, dizziness, and fatigue.  People with more severe TBIs may have the aforementioned symptoms in combination with other symptoms such as:

  • A persistent or worsening headache
  • Nausea or vomiting
  • Difficulty waking up from sleep
  • Slurring of words
  • Numbness or weakness in limbs
  • Dilated pupils

Severe traumatic brain injuries

The most severe form of TBI is that of a coma.  When a person is said to be in a coma, they remain unconscious for an extended length of time.  People who find themselves in a coma often suffer the most brain damage.

TBIs can also be associated with more complex, long-lasting symptoms, depending upon the severity of the injury along with the age and general health of the victim.  These include changes to cognition, emotional and mental health, sensory processing, or communication.  Examples include difficulty with thinking and memory, increased aggression or other personality changes, new or worsening depression or anxiety, or changes in the interpretation of smell, touch, scent, sight, and taste.

Severe injuries of this nature often require rehabilitation.  Medical personnel cannot do much in order to reverse the initial damage done by this kind of trauma.  Their main concern when dealing with TBI patients lies in preventing further damage.  They will ensure proper blood flow and oxygen supply to the brain.  Imaging tests can show details of the extent of the injury and assist with diagnosis and prognosis.  Patients may also receive X-rays of the neck and skull to see if fractures were sustained in addition to the brain injury.

At Edelstein Martin & Nelson, we specialize in personal injury law.  If you’ve sustained a traumatic brain injury or any injury caused by the negligence of another person and need to file a personal injury claim, don’t hesitate to contact us today.

Sources:

https://medlineplus.gov/traumaticbraininjury.html

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Americans with Disabilities Act (ADA) at-a-glance

In July 2009, the U.S. Department of Justice, Civil Rights Division, Disability Rights Section published a document entitled “A Guide to Disability Rights Laws”.

This document describes, among other things, the Americans with Disabilities Act (ADA).  While many Americans have heard of the ADA, few are aware of its details.  The ADA aims to stop discrimination due to disability in employment, government, Congress, and other areas.  It stipulates a number of regulations to this end.  The regulations are organized into different “titles”, each covering a general area.

In order to be protected under the ADA, you must be disabled or be associated with someone who is disabled.  A disabled person in this context is defined as a person who suffers limitations in a major area of life due to a physical or mental impairment.  Not all impairments that might be covered are listed, presumably because they would be too numerous.  

 

Americans with Disabilities Act

Employment

Under the first title of the ADA, businesses that employ fifteen or more individuals are required to provide equal opportunities to those with disabilities.  It prohibits discrimination in all areas relating to employment, including hiring and recruitment, training and promotions, pay, and more.  It requires employers to make reasonable accommodations to the limitations of disabled persons to the extent that it is feasible.  Title I includes religious institutions that employ fifteen or more people.

State and local government

This part of the ADA says that State and local governments must give equal opportunities to people with disabilities, including all of their programs and services.

Title II also includes an interesting tidbit of information regarding the construction of government buildings.  It stipulates that State and local governments must follow specific architectural designs when they construct new buildings or alter existing ones.  This is why you may have noticed your local city hall, government welfare office, public healthcare provider, or other government buildings being designed with features to accommodate those with disabilities.  For example, wheelchair ramps and door-opening buttons serve to assist those who cannot walk.

Public transportation

Title II also includes public transportation such as subways and Amtrak.  The rules that must be followed here mirror closely those of State and local government.  The authorities who manage public transportation must not discriminate against disabled people.  They have to comply with certain rules regarding the accessibility of their vehicles, both new and used.  They are also required to offer something called paratransit in the event they provide a fixed route transportation service such as buses or rails.  The term “paratransit” refers to a parallel service that takes individuals along the same route as the original service but provides accommodations that could not otherwise be implemented upon the main transportation method.

Public Accommodations

Title III covers public accommodations.  This includes a number of nonprofit organizations, commercial facilities, and select portions of the private sector.  The private sector services covered under public accommodations are quite broad.  They must abide by the same general rules set forth in Titles I & II.

For questions regarding the ADA or any disability-related concerns, please contact our office today.

Sources:

https://www.ada.gov/cguide.htm

http://www.philadelphiadisabilityinsurancelawyer.com/contact/

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Junk Science Tossed Into Junker by Court

Fun in Hollywood, not so much in the courtroom.

Most people when they hear about “junk science” assume that plaintiffs’ attorneys are trying to fabricate some pseudo-science to make out a case, usually in the context of a novel class action theory.

But those of us in the trenches know otherwise, that this isn’t the main problem. Junk science, on a day-to-day basis, is far more likely to spill from the mouths of defense experts in routine cases. I showed this a few years ago in a multi-part series dedicated to quickie medical exams by doctors hired by the defense. A three minute exam and presto!  — a finding that the plaintiff either isn’t injured, or that any injuries s/he has were pre-existing.

Some doctors are doing 1,000+ exams per year like this in the service of the insurance defense industry, which is quite the living if you don’t mind sacrificing your conscience.

Today I turn my sights on the biomechanical engineer. This is the person that will generally look at the vehicles in a crash (not an accident), and deconstruct it in such a way to determine that the victim wasn’t really injured by it. Four years ago Justice Arlene Bluth deconstructed that collision deconstruction for one such engineer, essentially showing the bogusosity of it all. (Is bogusosity a word? It should be.)

Last week the Appellate Division (Second Department) weighed in on that subject. And they were no more kind to the defense “expert” than Justice Bluth was.

Dovberg v Laubach was a hit-in-the-rear collision on the Long Island Expressway that pushed the plaintiff’s car into a tow truck in front of her:

The accident occurred when [the defendants’ vehicle] struck a vehicle operated by Scott Ramunni in the rear, propelling it into the rear of the plaintiff’s vehicle. The plaintiff’s vehicle was then propelled into a tow truck in front of her.

The key part of the story was how the plaintiff said that the injuries to her knees occurred — by striking the steering wheel or dashboard.

Dr. Alfred P. Bowles, II

So far, nothing out of the ordinary, right? But then the defendants said they would produce Dr. Alfred Bowles as an expert, he being a biomechanical engineer and board-certified surgeon. And he would testify “that the force generated by the accident could not have caused any of the plaintiff’s alleged knee injuries, and that those alleged injuries were the result of wear and tear from athletic activities.”

And how would Dr. Bowles do that? By looking at the medical records and the depositions.

Really. According to the decision of the appellate court, that was what he would rely upon. Not even an analysis of the damage to the vehicles themselves? Or the position of the body? This is science?

Oh, and some books. As per the decision, Dr. Bowles would also rely upon:

scholarly works that were published in the fields of medicine and biomedical engineering, and had gained general acceptance in those fields. In support of this claim, the defendants listed the names of three works, which, according to their titles, involved head, neck, and mandible injuries. The authors, years of publication, and contents of these works were not set forth. [emphasis added]

The trial court permitted this dubious testimony to go forward, allowing him to testify “with a reasonable degree of engineering certainty, [that] the force generated by a low speed rear-end collision that propelled a vehicle into a 2000 Ford Taurus would not have caused the driver of the Ford Taurus to hit her knees against the dashboard.”

A defense verdict resulted on the issue of causation.

But on appeal the Second Department was, shall we say, less than impressed with this testimony. And this was likely the reason:

Although Bowles did not know how close the plaintiff’s seat was positioned to the steering wheel and dashboard at the time of the accident, he maintained that moving the seat up would not increase the likelihood of a driver’s knees hitting the dashboard in a rear-end collision.

So no one asked the plaintiff how far forward the seat was — which is to say the actual position of the injured driver  — and then the expert testified that it didn’t matter? Distance to the dashboard didn’t matter? One inch and twelve inches are the same? Can you say bogusosity?

After a brief discussion of the long-recognized rule of Frye v United States — in that expert testimony must be based on scientific principles or procedures and is admissible only after a principle or procedure has gained general acceptance in its specified field — the court swiftly deconstructed Dr. Bowles’ testimony.

The court noted that the

“expert disclosure notice simply stated that Bowles analyzed the medical and engineering aspects of the accident. While the defendants cited to three works in opposition to the motion in limine, they did not identify the authors, years of publication, and contents of those works, or any explanation as to their relevance in evaluating the cause of knee injuries. Moreover, the defendants provided no description of the methodology Bowles utilized to determine the force of the accident, and the biomechanical engineering principles he relied upon in reaching his conclusion that the force generated by the accident could not have caused the plaintiff’s knees to come into contact with the vehicle dashboard.

The court didn’t use the phrase “junk science,” or bogusosity, but I will. Because that’s the way I read this opinion.  Your mileage may vary but, frankly, I don’t see how.

So the next time you hear about junk science, you should understand and appreciate that, on a day to day basis, this is not some plaintiffs’-side invention.

The essential business model of insurance companies is to collect as much as possible in premiums and pay out as little as possible (while investing the money in the interim). Many insurance companies, and adjusters, and their syncofantic witnesses who profit from this form of testimony, don’t seem to particularly care how that preservation of premiums is accomplished. Or who gets screwed by their process.


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Lawyers (and other advocates) Need A Hobby

The Paine to Pain race logo

All too often in life, those who are professional advocates get so wrapped up in their little piece of the world that they fail to see the bigger picture. This happens with lawyers, of course, but likewise with any political advocacy group you find.

Go to Twitter, for example, and you’ll see no shortage of people obsessed about one thing, and one thing only (and that one thing is, all too often, politics).

But if you want to be effective, you have to actually leave that advocacy behind and engage your heart and mind in a completely unrelated hobby. Only then can you step outside of your work and even attempt to view it objectively.

If you are advocating, then you need that objectivity, because the people you’re trying to convince are not those that already drank your flavor of Kool Aide. The advocacy is geared toward are those that don’t have an opinion, or are open to being persuaded because they are not all-consumed with confirmation bias.

For me, as regular readers know, that  hobby is putting on the Paine to Pain half marathon trail race each year that now attracts about 700 athletes from 15 states. We get about 200 volunteers to help. This is not a small undertaking on my part.

But, believe it or not, I think this makes me a better lawyer. While it is time spent away from writing briefs and “being productive” in the office, it helps to give me perspective.

Having raced over these trails, and seen so many others do it including some with disabilities, I’m more rounded as a person. Not because it’s running, but because it is something other than lawyering.

It also makes me a better project manager, which is a large part of being a trial lawyer if you are the one with the burden of proof. If you don’t line all your ducks up in a row and prepare, prepare, prepare, then you won’t succeed, regardless of whether the “event” is a trial or a conference you are directing.

It doesn’t really matter what your passion is outside of your area of advocacy. It could be sports, music or your local church/synagogue/mosque.  If it happened to also be a community based hobby, as mine is, you will also get the incidental benefit of becoming more well known in your community, which might bring with it unexpected opportunities.

If your advocacy consumes you and you can’t look at the rest of the world objectively, you aren’t going to be a very good advocate. Engaging those outside hobbies are critical to perspective and effective advocacy. And might have additional professional benefits.


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Common Disability Questions

Disability Questions

The initial question that often comes up with regard to disability benefits is: will I be eligible for social security benefits? People want to know if they ought to even go through the trouble of applying in the first place. Of course, the most basic requirement is to meet the definition of having a debilitating disability.

The Social Security Administration has a specific definition of disability. In order to be eligible for benefits, individuals must meet the definition as follows:

disability questions“For all individuals applying for disability benefits under title II, and for adults applying under title XVI, the definition of disability is the same. The law defines disability as the inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”

There are several additional conditions you must meet as well. For example, you must not a) have a job that pays over $1,000 a month, b) be able to do work you have done in the past 15 years or c) be able to adjust to other work that might suit your age and experience. You must also be “insured”, meaning you have paid enough Social Security taxes over a certain timeframe and paid them in the recent past. Sometime after stopping working and paying these taxes, you will lose your insured status. If you meet all the above conditions and have paid adequate Social Security taxes, there is a significant chance that you will be approved for Social Security benefits.

How a lawyer can help

It is possible to apply for disability benefits on your own. However, few people who go this route end up receiving benefits. This is due to the fact that filing for these benefits can be a long, complex, frustrating process. The Social Security Administration even acknowledges the fact that claimants possessing representation have much better chances of success. Working with a lawyer who knows the ins and outs of the system can have tremendous benefits and will ensure you the best possible chance of being deemed eligible.

Your lawyer will deal with the specific tasks required to help you with your case. If you have applied in the past, your lawyer can request that your previous request is reopened. Time limits can also be waived if necessary.

A lawyer can help you with obtaining the required medical documentation as well. This is of the utmost importance when applying for Social Security disability benefits. Certain documents are more valuable than others. The Social Security Administration requires a large amount of such documentation. We can help you determine what is needed and assist you in obtaining it.

Here at Edelstein Martin & Nelson, disability law is our prime specialty. Our lawyers will be sure to gather all of the critical evidence needed to win your case and get you the benefits you deserve. Contact us today to schedule a consultation.

Sources:
https://www.ssa.gov/disability/professionals/bluebook/general-info.htm

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