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Social Security Disability: Mild Mental Retardation

By | Social Security Disability | No Comments

20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.05.  Section 12.05 provides that the required level of severity for mental retardation is met with “a valid verbal, performance, or full scale IQ of 59 or less.” “The Secretary . . . expressly singled out individuals with Mild Mental Retardation for special treatment in determining entitlement to disability benefits.”  Brown v. Secretary of Health and Human Services, 948 F.2d 268 (6th Cir. 1991).  Per Listing 12.05, the claimant must prove that he exhibited significantly sub average general intellectual functioning with deficits in adaptive functioning that initially manifested during the developmental period (before age 22).  However, “there is a presumption that mental retardation is a condition that remains constant throughout life.”  Hodges v. Barnhart, 276 F.3d 1265 (11th Cir. 2001).  Thus, a claimant “need not present evidence that she manifested deficits in adaptive functioning prior to age 22 when she had offered evidence of low IQ test scores after age 22.” Id.   The requirement that mental retardation or low IQ beginning before age 22 is met when nothing in the record reflects an incident in which the claimant suddenly became mentally retarded.  Lowery v. Sullivan, 979 F.2d 835 (11th Cir. 1992).  In other words, the claimant is entitled to a presumption that his intellectual limitations began before age 22.

If a claimant satisfies the listing criteria he is to be found disabled per se.  Todd v. Apfel, 8 F.Supp.2d 747, 754 (W.D. Tenn. 1998); Johnson v. Sec’y of Health & Human Services, 794 F.2d 1106 (6th Cir. 1986).  A claimant who is not currently engaged in substantial gainful activity who has an impairment that meets or equals a listing is entitled to disability benefits.  Durham v. Apfel, 34 F.Supp.2d 1373, 1381 (N.D. Ga. 1998).  Even if the claimant worked previously with the severe impairment that meets or equals a listing, he/she is still entitled to a finding of disability.  Id.

“A claimant whose impairment meets a listing is disabled when not working, even if he or she worked in the past with the impairments, and even if he or she could return to his or her past work.”  Ambers v. Heckler, 736 F.2d 1572, 1576 (11th Cir. 1985).  As succinctly stated by the 6th Circuit, “if a claimant is not engaged in substantial gainful activity and also validly meets a listing, the Secretary must find claimant disabled without regard to residual work capacity, age, education, or experience.  It is not correct under the regulatory scheme to find that a claimant satisfies a listing but is nonetheless able to work.”  Johnson v. Secretary of Health and Human Services, 794 F.2d 1106 (6th Cir. 1986).

If you need assistance with your disability claim, call The Hamilton Firm.

2012 Workers’ Compensation Legislative Changes (Tennessee)

By | Tennessee Workers' Compensation | No Comments

The maximum weekly benefit rate for temporary disability benefits for injuries occurring from July 1, 2012 through June 30, 2013 is $886.60.
The maximum weekly benefit rate for permanent benefits for injuries occurring July 1, 2012 through June 30, 2013 is $806.00.
The Legislature also added provisions with regard to pain management. Now, if a claimant is referred for pain management, the panel must include physicians within 175 miles from the employee’s residence or place of employment. Moreover, the employee is not entitled to a second opinion with regard to pain management, and the employer may use utilization review with regard to pain medication. The legislation further provides that if the claimant violates the terms of the prescription medication agreement with the physician more than once, the claimant shall not be entitled to receive pain management through workers’ compensation.
Venue: A suit may be filed in the county in which the employee resided at the time of the injury or in the county where the injury occurred.

Physical Injury can cause compensable mental injury

By | Tennessee Workers' Compensation | No Comments

In Norwood v. Maytag Corp., (Tenn. W.C. Panel 4/30/2012), the employee injured his neck while working, which resulted in a “mood disorder . . . with major depressive-like episode.”  Basically, the neck injury aggravated the employee’s pre-existing mental condition.  The reviewing court upheld the trial court’s ruling that the employee was 95% permanently disabled.

Vocational Testimony and the DOT

By | Social Security Disability | No Comments

During a hearing, the vocational expert will sometimes testify as to matters not covered by the Dictionary of Occupational Titles (DOT) and/or at variance with the DOT. An ALJ is required to ensure that the vocational expert’s testimony is consistent with the DOT, and if not, such conflicts must be resolved. SSR 00-4p “emphasizes that before relying upon VE…evidence to support a disability determination or decision, our adjudicators must identify and obtain a reasonable explanation for any conflicts between occupational evidence by VEs…and information in the DOT…and explain in the…decision how any conflict that has been identified was resolved.”

Discovery Rule in Tennessee Workers’ Compensation

By | Tennessee Workers' Compensation | No Comments

In an important decision from the Tennessee Supreme Court issued yesterday, the Court re-affirmed the “discovery rule” in Tennessee Workers’ Compensation cases. According to the Court: “The statute of limitations commences to run ‘at that time when the employee, by a reasonable exercise of diligence and care, would have discovered that a compensable injury had been sustained.’ Bellard v. Baptist Hosp., Inc., 559 S.W.2d 788, 789-90 (Tenn. 1978) (construing section 203). The question of whether a plaintiff has exercised reasonable diligence and care in discovering that he has a cause of action, however, is a question of fact.” Ameristeel, Inc. v. Ratliff, (Tenn. June 7, 2012).

Aggravation of Preexisting Condition

By | Tennessee Workers' Compensation | No Comments

The case of Buttrey v. Altria Group Inc., (Tenn. W.C. Panel 4/24/2012), is a good example of an important rule of law in Tennessee Workers’ Compensation cases.  In Buttrey, the employee injured her neck while working in 2001. She treated conservatively and didn’t miss any work.  In 2005, she again experienced neck pain with radiculopathy, but didn’t miss any work.  In April of 2009, the employee was performing lifting activities at work and began to experience excruciating neck pain.  An MRI revealed degenerative changes in the neck and a surgery was performed in August of 2009.  The treating doctor testified that the employee had pre-existing degenerative disc disease that was exacerbated by her work activities in April of 2009.  The employer hired a doctor who testified that there was no evidence of a work related injury or exacerbation.  The Court ruled in favor of the employee (plaintiff), noting that lay testimony in conjunction with medical evidence was sufficient to establish the the employee’s work activities advanced the severity of her pre-existing degenerative disc disease in April 2009.

Death Claim from Medication Denied (Tennessee Workers’ Compensation)

By | Tennessee Workers' Compensation | No Comments

Employee sustained compensable back injury that was treated with prescription medication. Five weeks after his injury, the employee died from hypovolemic shock due to gastrointestinal bleeding. The employee’s spouse file for workers’ compensation death benefits alleging that the employee’s death was caused by the prescription medication. An expert witness testified that the employee’s use of Naprosyn “precipitated the peptic ulcer and contributed to the bleeding”, but the court found that there was not a sufficient causal link between the medication and the death. The Court indicated that the fatal gastrointestinal bleed was caused by esophageal varices resulting from alcoholic cirrhosis of the liver. Marine Accessories Corp. v. Woods, 37 TAM 23-4, 5/3/2012 (Tenn.W.C. Panel).

Tennessee Supreme Court denies workers compensation benefits to electrical lineman who did not use his rubber gloves.

By | General | No Comments

In TROY MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES, the trial court awarded workers’ compensation benefits to an injured lineman who had violated a rule requiring the use of protective gloves while in a bucket lift. The employer appealed, contending that the statutory defenses of willful misconduct and, more particularly, the willful failure or refusal to use a safety appliance or device precluded recovery. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with T.C.A. Sec. 50-6-225(e)(3) (2008).  After oral argument before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court. Because the evidence established that the employee admitted his knowledge of a regularly enforced safety rule, understood the rationale for the rule, and willfully (rather than negligently or recklessly) failed to comply, the injuries he suffered because of the rule violation were found not compensable by the Supreme Court. The judgment of the trial court was reversed and the case was dismissed.  This is another scary decision from the Supreme Court on this issue.  We fear it will only encourage more claims of wilfull violation of safety rules by employers, who frequently pressure employees to take short cuts while maintaining a facade of written safety rules.

Transportation Secretary LaHood Calls for a National Ban on Distracted Driving

By | General | No Comments

US Transportation Secretary Ray LaHood is pushing for a national law banning the use of cell phones while driving. While speaking at an anti-distracted driving summit, in San Antonio,which was attended by medical personnel, government officials, and safety advocates, LaHood characterized distracted driving as a “national epidemic” and said that a federal ban would be the way to prevent it. LaHood said that he doesn’t think other distracting behavior, such as eating or applying make-up, should be banned by the federal government since “not everyone does that.” LaHood added, “But everyone has a cell phone and too many of us think it is OK to talk on our phones while we are driving.”

        New survey finds distracted driving a growing problem. WRC-TV Washington (4/26, Wilkins) reported on its website, “New statistics from the NTSB show just how big of a problem distracted driving in work zones really is in the Washington region.” A new survey released “by Transurban-Fluor, in partnership with AAA Mid-Atlantic, shows that 40 percent of drivers in work zones use their cell phones.” NTSB Chairman Deborah Hersman commented, “NTSB issued a recommendation last December recommending to states that they ban talking or texting on the phone while behind a wheel, except for emergency situations.”

        The Washington Post (4/26, Halsey) reports, “With miles of highway construction underway in Northern Virginia, the region’s police officers say work-zone accidents have increased dramatically because drivers are using mobile devices to talk or text.” A new survey by AAA and Transurban “of 409 police officers who patrol Northern Virginia’s roadways, found that cellphone use was to blame in one in three work-zone accidents.” Approximately “80 percent said banning cellphone use behind the wheel would dramatically reduce road accidents.” The article also notes last year’s recommended ban on all cellphone use while driving from the NTSB.

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