Why an Obscure Securities Law Case Could Affect SSDI

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Social Security Disability Insurance (SSDI) cases are largely decided by administrative law judges (ALJs). A decision questioning the role of ALJs in another area of the law could cause some major complications for SSDI applicants and SSDI beneficiaries.

The 10th U.S. Circuit Court of Appeals recently set aside a conviction for securities fraud by the Securities and Exchange Commission (SEC) because the ALJ who decided the case should have been appointed under the Appointments Clause rather than hired by the SEC. The 10th Circuit’s decision directly conflicts with a recent decision made by the District of Columbia  Circuit Court of Appeals, which means the U.S. Supreme Court could take up the issue.

This matters to SSDI applicants, their attorneys and even present SSDI beneficiaries because the vast majority of administrative law judges, roughly 1,200 of 1,400, have been hired by the Social Security Administration to hear Social Security Disability appeals. Similar to ALJs from the SEC, ALJs who hear SSDI appeals are hired on merit and are federal employees.

If the U.S. Supreme Court followed the recent 10th Circuit decision and applied it to ALJs who heard Social Security Disability appeals, at least 1,200 ALJs would have to be appointed by the president and confirmed by the Senate. This could lead to further delays and uncertainty related to SSDI appeals. If the 10th Circuit decision were applied to SSDI judges, it is uncertain as to whether awards of disability would still be valid if they were made by unconstitutionally chosen ALJs. In 2014, in National Labor Relations Board v. Noel Canning, the Supreme Court held that the NLRB’s decision made by commissioners who were appointed by constitutionally invalid recess appointments was invalid.

The Social Security Administration has recently moved to abolish the treating physician rule in an effort to decrease claim payments. Uncertainty over whether the awards of SSDI benefits are constitutional would add additional hurdles to those needing SSDI benefits. If you are applying for Social Security Disability or thinking about it, contact an experienced attorney. Also, contact your lawmakers to express your concerns about the SSDI system to them.

Workers’ Compensation Nurse Case Managers: Why our firm does not consent to a “task” assignment.

Nurse case managers can be useful for employers and injured workers. Rehabilitative services are frequently used in accepted workers’ compensation cases to help document the medical treatment plan.

 

The term “rehabilitative services” falls under the “Medical Compensation” definition of North Carolina General Statute § 97-2(19). It is also defined under the Rehabilitation Professional Rules (Rule 103) as the “planning and coordination of health care services by a medical case manager or coordinator, with the goal of assisting an injured worker to be restored as nearly as possible to the worker’s pre-injury level of physical function.”

 

When a nurse case manager is assigned to an injured worker’s claim, s/he must comply with the requirements of the Rehabilitation Professional Rules. Specifically, s/he must: meet the requisite qualifications of Rule 105, file a Form 25N: Notice to the Commission of Assignment of Rehabilitation Professional and identify the purpose of the rehabilitation involvement (Rule 107), and, if requested by the injured worker’s attorney, meet with the injured worker and the attorney within 20 days of the request. There are many other rules regarding the nurse case manager’s conduct under Rules 107 (Communication), 108 (Interaction with Physicians), and 109 (Vocational Rehabilitation Services and Return to Work).

 

Despite the foregoing, occasionally an injured worker will receive a phone call indicating that a nurse is requesting permission to attend an upcoming medical appointment. Frequently, these requests are given with little notice and the nurse is unknown to the injured worker. To further confuse the situation, the nurse indicates that his/her involvement is merely a “task” assignment meaning that s/he anticipates popping into the injured worker’s appointment, asking critical questions of the doctor, reporting back to the insurance company and will assume no further role in the case.

 

It is the North Carolina Industrial Commission’s “long-standing position” that “rehabilitation professionals (‘RPs’) who are given one-time ‘task’ assignments do not have the privilege and protection afforded them under the NCIC Rehabilitation Rules because one-time assignments do not meet the definition of medical or vocational ‘rehabilitation.’” Accordingly, “. . . prior to any one-time ‘task’ activity that involves contact with the injured worker or, if represented, the injured worker’s attorney.” (See NCIC Minutes from February 2008).

 

Given the limitations of a “task” assignment and highly limited role of the nurse case manager in those situations, we do not consent to task assignments.

 

 

 

Distracted Driving – A Workplace Hazard

The dangers of distracted driving prompted OSHA to launch a Distracted Driving Initiative in 2010. The initiative’s primary focus has been to encourage employers to prohibit their employees from texting while driving for work.

One in ten traffic-related fatalities involved distraction in 2015 (the most recent year for statistics) according to the U.S. Department of Transportation. The U.S. Government Website for Distracted Driving defines distracted driving as “any activity that could divert a person’s attention away from the primary task of driving.” These activities include, but are not limited to, texting, using a cell phone, eating, drinking, talking to passengers, grooming, using a navigation system, and adjusting a radio, CD player, or MP3 player.

Texting while driving is one of the more dangerous distractions because it requires visual, manual, and cognitive attention from the driver. Although it is illegal to text while driving in 46 states, many drivers, especially younger drivers, have admitted to texting while driving. According to OSHA, drivers who text while driving focus their attention away from the road for an average for 4.6 seconds, which at 55 mph is equivalent to driving the length of a football field blindfolded.

To learn more about distracted driving and to take the pledge to drive phone-free, visit www.distraction.gov.

Redact Social Security Numbers

Many states have enacted laws to protect the disclosure of an individual’s social security number and other personal identifying information due to a rise in identity theft; however, the practice of collecting the information by agencies has continued, and agencies that collected social security numbers before January 1, 1975 are still allowed to do so. See The Privacy Act of 1974, 5 U.S.C. § 552a (2015).

In North Carolina, for example, when filing an initial claim with the North Carolina Industrial Commission, an injured worker is required to provide his or her social security number on the form. The North Carolina Industrial Commission is required under N.C. Gen. Stat. § 132-1.10 to take steps to prevent an individual’s social security number from becoming public. However, an individual’s social security number can become publicly available when an injured worker appeals a decision by the North Carolina Industrial Commission and he or his attorney fails to redact the information from documents filed with the court, as required by N.C. Gen. Stat. § 132-1.10(d). Rules 9(a)(4) and 9(d)(3) of the North Carolina Rules of Appellate Procedure also require that social security numbers be deleted or reacted from any document in the record on appeal and copies of exhibits.

Until agencies begin using alternate identifiers, attorneys should examine every document carefully before filing it with the court to redact or remove social security numbers.

Opioid Task Force, Recent Studies, and CDC Opioid Recommendations

The North Carolina Industrial Commission recently joined many other states (i.e. Massachusetts) in tackling the issue of opioids in the workers’ compensation cases by creating a Workers’ Compensation Opioid Task Force. The goal of the task force is to “study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims.” According to the Chair, “[o]pioid misuse and addiction are a major public health crisis in this state.” 

As of last June, a study by the Workers’ Compensation Research Institute (WCRI) noted “noticeable decreases in the amount of opioids prescribed per workers’ compensation claim.” From 2012 – 2014, “the amount of opioids received by injured workers decreased.” In particular, there were “significant reductions in the range of 20 to 31 percent” in Maryland, Massachusetts, Michigan, Oklahoma, North Carolina, and Texas. 

Additionally last March, the Centers for Disease Control and Prevention (CDC) issued new recommendations for prescribing opioid medications for chronic pain “in response to an epidemic of prescription opioid overdose, which CDC says has been fueled by a quadrupling of sales of opioids since 1999.” 

Currently, the CDC’s recommendations for prescribing opioids for chronic pain outside of active cancer, palliative, and end-of-life care will likely follow these steps:

1.  Non-medication therapy / non-opioid will be preferred for chronic pain.

2.  Before starting opioid therapy for chronic pain, clinicians should establish treatment goals and consider how therapy will be discontinued if benefits do not outweigh risks.

3.  Before starting and periodically during opioid therapy, clinicians should discuss with patients known risks and realistic benefits of opioid therapy. 

Traffic-Related Occupational Fatalities Up 9%

In 2015 (the most recent year for statistics), traffic-related fatalities saw the largest percentage increase in nearly five decades. According to the U.S. Department of Transportation, there were 35,092 traffic-related fatalities in 2015, a 7.2 percent increase from 2014. Of the 35,092 traffic-related fatalities, 1,264 were occupational fatalities.

Traffic-related fatalities made up the largest category of occupational fatalities in 2015 and were up 9 percent from 2014. According to the Bureau of Labor Statistics, in 2015 more than one out of every four occupational fatalities was the result of a roadway incident. Nearly half of the occupational traffic-related fatalities involved a semi, tractor-trailer, or other tanker truck.

Human factors contribute to the majority of crashes. Almost one out of every three fatalities involved drunk drivers or speeding, and one out of every ten fatalities involved distraction. According to National Highway Traffic Safety Administration Director, Dr. Mark Rosekind, “The data tell us that people die when they drive drunk, distracted, or drowsy, or if they are speeding or unbuckled.”

Removing The Safety Net: A National Trend Of Benefit Reductions For Injured Workers

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

Benefits for injured workers continue to be under attack throughout the country. In New York, there have been a number of changes in the last decade, all in the name of reform. These reforms were encouraging at first as they increased the weekly benefits for some higher wage-earning injured workers for the first time in decades. They also created medical treatment guidelines under the guise of allowing injured workers to obtain pre-approval on certain medical treatments and procedures. 

Unfortunately, the changes also resulted in reduction of benefits for many injured workers. Monetary benefits were capped, so injured workers deemed partially disabled could only receive a certain number of weeks of benefits regardless of their ability to return to their pre-injury jobs. The determination of the degree of disability has become a battle involving multiple, lengthy depositions of medical witnesses where the outcome is how long injured workers get wage replacement or whether they receive lifetime benefits. The criteria is not whether injured workers can return to their prior employment, but whether they are capable of performing any work at all, regardless of their past job experience or education. The battle is not limited to the amount of weeks of benefits injured workers can receive, however. The medical treatment guidelines, touted as getting injured workers prompt medical treatment, discounts the fact that if the requested treatment is not listed within the guidelines, it is denied and the burden is placed upon injured workers and their treating doctors to prove the requested treatment is necessary.

Other changes designed to cut administrative costs and court personnel include reducing the number of hearings held, thereby denying injured workers due process. There also has been a reduction in the number of presiding judges, and in many hearing locations the judges are not even at the site but are conducting hearings through video conferencing. At the end of October, the Board announced a new procedure authorizing the insurance carrier to request a hearing on whether injured workers should be weaned off of opioids that are used by many medical providers to treat chronic pain. While everyone would agree that the misuse of prescription pain medication is an epidemic in this country, many question whether the insurance industry really has the injured workers’ best interest at heart.    

As an attorney who has represented injured workers for more than 26 years, I have seen many workers successfully transition from injured worker back into the labor market. It is very encouraging to note that for many people the system has worked. They receive their treatment, which may involve physical therapy, surgery, pain management, prescription therapy, or whatever else their treating physician recommends. They are paid a portion of their prior income and after a period of convalescence, they are able to return to work. Some injured workers, however, are not so lucky. The decisions about what happens to those unable to work have been left to those who seem to care more about business and insurance industry profits. 

Just about one year ago, 14 people were killed and 22 more injured when ISIS-inspired terrorists went on a shooting rampage in San Bernardino, California. The nation and the world were horrified to hear about this tragedy and the story was in the news for many weeks. Now a year has gone by and many of the survivors have complained about treatment being denied and prescription medication being cut off.  While many injuries happen quietly without the headlines seen in the California attack, there are many similarities. It seems that when an initial injury occurs, there are many good protections and benefits in place. However, as time goes on and costs increase, injured workers are looked upon as enemies to defeat or to forget about. Unfortunately for injured workers and their families, they don’t have this luxury and they don’t have the means to fight.

Most people don’t think it will ever happen to them. That is what most of my clients have thought as well.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717. 

 

WA L&I’s Stay at Work Program Hits Major Milestone: > 20,000 Workers Helped

Today’s post comes from guest author Kit Case, from Causey Law Firm.

A Department of Labor & Industries (L&I) program that helps support light-duty jobs after workplace injuries has reached two major milestones. The Stay at Work Program has now helped more than 20,000 injured workers and provided more than $50 million to reimburse businesses that take part. 

The program pays employers for part of the costs associated with offering light-duty jobs to injured workers. It helps defray some of the expenses so businesses can allow eligible employees to keep working during their recovery and stay connected to their workplace.  

“This return-to-work incentive is changing the workers’ compensation system, and more importantly, changing workers’ lives and improving the bottom line for employers,” said Vickie Kennedy, L&I’s assistant director of Insurance Services.   

To date, more than 4,500 employers have used the program to offer light-duty jobs to help thousands of workers return to work as part of their recovery from a workplace injury or illness.

Supporting Recovery

Mao Pen, an industrial seamstress at Seattle Tarp, is one example of those helped by the Stay at Work Program. Pen broke her left elbow and forearm last June when she fell backwards while helping coworkers stretch a large tarp. “It was a horrible break,” said Chris Perlatti, president of Seattle Tarp, where Pen has worked for 20 years.

After having surgery and staying home for three months, Pen wanted to come back to work. “And we wanted her back,” said Perlatti. “She’s a valuable employee and a sweet individual. She’s part of our work family.”  

Perlatti said the answers came when L&I’s occupational nurse Deirdre Staudt started talking to his staff about how light duty could help both Pen and Seattle Tarp. 

Through the Stay at Work Program, Seattle Tarp could get reimbursed for half of Pen’s light-duty wages (up to 66 days and $10,000), along with costs for training, equipment, tools, and any clothing needed for the light-duty work.

“This is a phenomenal program,” said Perlatti. “I wish we had known about it before one of our workers got injured.”

Changing Workers’ Compensation

“Instead of writing a check to the worker to replace some of their wages while they stay at home to recover, we’re reimbursing employers to help workers return to work as soon as medically possible,” said Kennedy, adding that the workplace connection offers financial, social and psychological support that a worker needs to improve recovery times.   

Return-to-work initiatives like the Stay at Work Program, efforts to ensure quality medical care, and other improvements in the workers’ compensation system are helping an estimated 560 injured workers each year avoid possible long-term disability. 

Together, these efforts have saved $700 million in estimated wage replacement, disability and medical costs to Washington employers, workers, and the workers’ compensation system. More importantly, these efforts are helping injured workers heal and return to productive lives. 

L&I encourages employers to establish return-to-work programs at their worksites. Employers can start by creating light-duty job descriptions and using the Stay at Work incentives to offset costs associated with workplace injuries.

There’s more information online about the Stay at Work Program (Lni.wa.gov/StayAtWork).

 Photo credit: kenmainr via Foter.com / CC BY-NC-SA