Today’s post comes from guest author Barbara Tilker, from Pasternack Tilker Ziegler Walsh Stanton & Romano.
If you get a denial notice from Social Security after filing your application for benefits on your own, don’t be surprised. Most people are turned down the first time they apply for benefits. Social Security recently released a study showing that people who filed on their own were slightly more likely to get denied initially, although they received their initial decision a little sooner. Many people make one of two common mistakes when they get turned down – they either don’t do anything or they file a new application. People who don’t do anything will, of course, not receive Social Security disability benefits. Those that file a new application are just as likely to get turned down again, and may lose entitlement to benefits they otherwise would have gotten.
When you get a denial, you should file an appeal of that decision.
When you get a denial, you should file an appeal of that decision. Filing an appeal is different than filing a new application. Depending on where you live, you will either file a request for reconsideration or a request for a hearing. A request for reconsideration means that someone else at Social Security reviews your file and makes a new decision. If you get denied at reconsideration (and about 90% of people do) you should file a request for a hearing.
After you file a request for a hearing, you’ll be scheduled for a hearing held by an Administrative Law Judge (ALJ). The ALJ will ask you questions and issue a written decision after the hearing. People who appear at a hearing before an ALJ are much more likely to get SSD than those who file a new application after getting denied.
Once you receive a denial, you should contact our office right away to discuss your options. You only have sixty (60) days to file an appeal, so it’s important to act fast. Our staff will be able to handle the appeals process for you, and one of our attorneys will appear at the hearing with you. The most important thing is to not get discouraged and continue your medical treatment so that you’ll have the medical evidence you need to prove your disability.
Here’s the next installment in the series that looks at the basics of workers’ compensation.
Under the Nebraska workers’ compensation laws, you may have the right to choose a family doctor to treat you for your work-related injury.
You may choose a doctor who has treated you or an immediate family member before this injury happened.
Immediate family members are your spouse, children, parents, stepchildren and stepparents. The doctor you choose must have records to show that past treatment was provided.
If you want to choose your doctor, you must tell your employer the name of the doctor you choose. You need to do this as soon as is practical after the accident or as soon as your employer gives you the notice of the right to choose your family physician to treat you for your work injury form.
If you are in need of immediate medical attention and or emergency medical care, you have the right to obtain care immediately.
If you, or your family, do not have a family physician, then your employer has the right to choose the doctor to treat you.
However, if your workers’ compensation claim is denied for any reason, you have the right to choose any doctor to treat you for your injury.
Any time you are faced with a major surgery recommendation for your injury, you have the right to choose the surgeon to do the surgery. You can choose any surgeon.
If you have any questions about your medical rights please feel free to contact us.
Read the previous blog posts in the workers’ compensation basics series by clicking on these links:
If you violate a safety rule you may still be eligible for workers’ compensation benefits.
If your employer has denied your workers’ compensation injury based on the fact that you “violated a safety rule” it is likely that you can still recover the benefits you are entitled to for your work injury.
Some states limit or completely bar recovery if an employee is found to have violated a safety rule when he or she was injured on the job. In Nebraska, however, the violation of a safety rule is not automatically deemed “willful negligence” as a matter of law, which would bar any recovery for workers’ compensation benefits. Instead, the Nebraska courts rely on five factors in determining whether the safety-rule violation would bar workers’ compensation benefits for injured workers. By analyzing these five factors, the court will determine if the safety violation rises to the level of “willful negligence,” which means that the employer must prove “a deliberate act knowingly done or at least such conduct as evidences a reckless indifference to the employee’s own safety”.
These factors were adopted by Nebraska courts when Roger Moore, from our law firm, successfully argued that his injured worker-client was entitled to workers’ compensation benefits even though the worker actually violated a company safety rule when he was injured on the job. See Guico v. Excel 260 Neb. 712, 619 N.W.2d 470 (2000). The Supreme Court sided with Roger Moore in determining his client was entitled to workers’ compensation benefits based on the following factors:
Whether an employer has a reasonable rule designed to protect the health and safety of the employee,
Whether the employee has actual notice of the rule,
Whether the employee has an understanding of the danger involved in the violation of the rule,
Whether the rule is kept alive by bona fide enforcement by the employer, and
Whether the employee has a bona fide excuse for the rule violation.
Of course, oftentimes your employer cannot meet these factors, and your claim should not have been denied. For example, just because your employer gives you handbook one day with safety rules you are to follow (factor 1 above) does not mean it will be able to automatically deny your workers’ compensation claim. In fact, it is highly likely that your employer will have difficulty establishing the four other factors that follow.
In sum, it may take some work and some investigation, but if your workers’ comp claim has been denied for a violation of a safety rule, chances are good that you still may be able to recover benefits for your injury.
Today’s post comes to us from our colleague Len Jernigan of North Carolina.
Several years ago I had a client in North Carolina who was an insurance man. While taking some papers out of the back of his car at work he slipped, hit his head and developed a neurological conditon called “Dystonia.” I did some research and discovered that it is a disorder that affects the nervous system, causing muscles to contract involuntarily.
it is a disorder that affects the nervous system, causing muscles to contract involuntarily
Significantly, I also found out it can be caused by trauma, although often dystonia develops without any trauma and may be genetic. The case was denied by the workers’ compensation carrier (and Continue reading →