An increasing number of civilian workers who worked for defense contractors in Iraq and Afghanistan are reporting respiratory illness. Reported in US Servicemen and women in 2011 in a presentation to the American Thoracic Society an increasing number of veterans were suffering from respiratory illness from a variety of sources including sand dust, smoke from burn pits, aerosolized metals and chemicals from IEDs, blast overpressure from shock waves to the lungs, indoor and outdoor allergens (pollens and molds). Named “Iraq-Afghanistan War lung injury” (IAW-LI) these serious respiratory problems were reported at a rate seven times higher than in soldiers deployed elsewhere. These respiratory conditions are not limited to soldiers but also to those civilian employees of defense contractors working in Iraq and Afghanistan. While the subject of multidistrict litigation in a suit against KBR, representing both soldiers and civilians for Burn Pit exposures, those who suffer who were employed by civilian contractors have Defense Base Act claims, whether covered by the Burn Pit litigation or not. These claims extent beyond the Burn Pit exposures and include Tuberculosis, sand dust exposures, exposures to aerosolized metals and chemicals, blast shock wave exposures, and indoor and outdoor allergens unique to or in excessive quantity in those environments. Many of these conditions, while treatable, can cause serious and permanent injury and impairment and are compensable under the Defense Base Act, a federal law providing workers’ compensation protection to civilian employees of US Government contractors, not only in Iraq and Afghanistan, but throughout the world (outside of the US). As the operations wind down in the Middle East it is expected that more and more claims from both veterans and civilians deployed there for respiratory disease will emerge. For returning civilians, care should be taken to not only timely obtain appropriate and proper medical evaluation and care (be sure to provide the doctor the history of work in the Middle East and exposures to the toxins described above, where applicable) but to seek to protect one’s legal rights to medical and compensation benefits by timely pursuing a Defense Base Act claim. There are specific timelines for notice and claim that must be followed to not jeopardize one’s rights. Further information can be obtained by contacting the closest Office of Workers’ Compensation Programs (http://www.dol.gov/owcp/ ) or experienced legal counsel.
The Social Security Offset Nightmare – it only gets worse.
This post is Washington workers’ compensation specific and will not likely apply to anyone receiving social security benefits plus other sources of workers’ compensation benefits or other public disability benefits. As applied in Washington State, the Department of Labor and Industries (“DLI”), or self-insured employer where applicable, is allowed to take the offset (see prior posts to describe how the offset is calculated) until the injured worker reaches the age of 62. Because of quirk in the law, the Social Security Administration (“SSA”) gets to take the offset between the ages of 62-65. Thereafter because SSA does not offset retirement benefits, the offset reverts back to the DLI or a self-insured employer.
The problem arises in how SSA calculates the average current earnings (“ACE”) for the 62-65 offset period. When one is initially found eligible for social security disability benefits AND workers’ compensation benefits, the offset is calculated, typically using the ACE (there are other methods to calculate the maximum benefit, this post only applies to those whose maximum combined benefit is set by using 80% of the ACE) to set the maximum amount one can receive through a combination of both workers’ compensation and social security disability benefits (80% of the ACE). Then over time, one is entitled to cost of living adjustments (some are entitled to yearly increases, some are entitled to triennial increases of workers’ compensation benefits – the difference being the subject of a different posting). If one is disabled and entitled to both benefits at an early age, by the time one reaches 62 the increases to the combined benefits can be pretty significant. The effect of the increases is to increase the ACE so the 80% figure is higher and higher over time allowing for higher and higher payments from the combined systems.
This is all well and good, but then along comes the age 62 reverse of the offset by the SSA. Instead of using the higher ACE calculated by utilizing increases in wages over time to avoid the benefits being eroded by inflation (i.e. that higher figure being used by the DLI), SSA goes all the way back to the original ACE to calculate the offset. This can result in a DECREASE in the combined payments by 100s of dollars per month. In those cases where there is a delay in Social Security implementing the offset (as is not unusual given the volume of cases they must address) there is not uncommonly a substantial overpayment assessed by SA by retroactively applying the offset. IF both SSA and DLI used the same ACE, then when DLI retroactively reversed its offset in response to SSA retroactively applying its offset the underpayment from DLI would match the overpayment from SSA and it would be a wash – the underpayment received from DLI could be sent to SSA to pay the overpayment. However, because DLI is using a higher ACE, there is a much smaller underpayment from DLI than the overpayment from SSA and many disabled workers are left owing SSA thousands of dollars with no source of monies to pay it. It is possible to request waiver and where the overpayment is not the disabled worker’s fault (as is always the case in this circumstance) and where repayment would be a substantial hardship on the disabled worker. However SSA will look at all the disabled workers’ income and assets and where there are assets or where the spouse has a good job, waiver may be denied.
Whether any overpayment is waived or not, that does not solve the problem that is created by using the old ACE which ignores inflation and increased cost of living since the disabled worker was first entitled to both disability income and workers’ compensation benefits. Again, the result is a reduction of combined payments which can run into 100s of dollars per month (each case is slightly different based on the individual disabled worker’s income history is and the amount of the social security and DLI benefits).
Unfortunately, the use of the original ACE, rather than an updated ACE, appears to be consistent with federal law. There is no provision in federal law to ever use an updated ACE unless the ACE is adjusted by SSA over time by application of the triennial adjustment process. There is no provision, where social security benefits have been paid at the full rate (as is the case where the workers’ compensation payer is taking the offset) to apply an adjusted ACE during the 62-65 reverse offset process.
Is there a solution?
On a case by case basis it might be advantageous for a disabled worker to switch to early retirement at age 62 (SSA does not offset retirement benefits). That may or not be advantageous to a disable worker. Each case is individual based on earnings history the size of the family benefit (i.e. the number of others claiming on the account, etc.).
The only real solution, in addition to seeking waiver for any overpayment created by retroactive application of the offset, is to seek to change the law. That is problematic. In seeking Congressional support to modify the law we would be faced with the fact of the huge federal deficits (fixing this would cost social security money) plus this anomaly only appears to apply to Washington State disabled workers. There is a chance that some of the other states that are allowed to take the offset may face similar situations, but we are unusual in that we are allowed to take the offset only up to ager 62 and then lose it until age 65.
Injured workers need to be aware of this issue, plan and prepare for the switch of the offset at age 62 (knowing if there is a delay in SSA applying the offset that it most likely be done retroactively with assessment of an overpayment) and to try to plan of potential reduction of the total combined benefit when the worker has been disabled for, and on both benefit systems, for an extended period. Further reading can be found at: https://secure.ssa.gov/poms.nsf/lnx/0452120265.
Workers headed to Japan and Workers’ Compensation Coverage Issues
In the aftermath of the devastating earthquake and tsunami (and the resulting nuclear catastrophe) in Japan it is anticipated that many workers will be going to Japan to help in the humanitarian aid, clean-up and rebuilding likely to occur in the next several years. To the extent that these workers are employed by U.S. contractors under contract with any federal agency they may well have workers’ compensation coverage under the Defense Base Act (DBA).
Coverage under the DBA extends to: (1) Workers working on any contracts with any U.S. government agency, including construction and service contracts and contracts approved and funded by the U.S. under the Foreign Assistance Act, if the contract is performed outside of the United States; (2) All workers engaged in such employment, regardless of nationality, including U.S. citizens and residents, host country nationals (local hires), and third country nationals (individuals hired from another country to work in the host country); and to include (3) All workers employed by all levels of contract, including sub-contracts and subordinate contracts, are also covered under the Act.
There are provisions for a U.S. Department of Labor (DOL) waiver of coverage but even if granted the waiver is typically conditioned such that it does not exempt from DBA coverage citizens of the U.S., legal residents of the U.S., or employees hired in the U.S. Waivers are strictly enforced and if the conditions under which the waiver was granted (e.g. that local workers’ compensation programs would cover workers injured on the job) do not hold true, DBA coverage is extended to those formerly “waived” workers. At this time the DOL has granted waivers for the Department of the Defense and the State Department for work performed in Japan. No other federal agencies at this time have been granted waivers for work performed in Japan and thus all non Defense and State Department agency (i.e. any other federal agency) contractors must provide DBA coverage for its workers in Japan.
What does this coverage cover and dies it include radiation exposure related disease from work done in Japan? All injuries or occupational diseases which arise out of or result from employment exposures are covered. That would include conditions such as radiation illness that may not manifest itself for many years following exposure. To qualify for coverage a worker needs to show work for a covered employer working under federal contract outside the U.S., that the worker was injured or contracted a disease during that employment and that the employment conditions were such that they could have caused the injury or disease. That is sufficient to bring into play a presumption that the conditions of work did cause the injury or disease (a possibly rebuttable presumption, but that is the subject of another blog).
All DBA claims arising out of Japan should be filed in the Office of Workers’ Compensation Programs (OWCP), part of the U.S. DOL) in Honolulu, Hawaii, but after they are filed there initially they may be transferred to the OWCP office nearest the worker’s residence (e.g. Seattle).
For more information see: http://www.dol.gov/owcp/dlhwc/dbacoverageinJapan.htm.
Injured at work due to third party negligence? (Do you have a third party claim?)
On many occasions a work related injury may have the additional potential to be a “third party claim”. Most workers compensation systems allow for a third party claim against one not in the employ of the injured worker’s employer who causes injury as a result of negligence or even an intentional act. An injured worker generally does not have to make a choice between receiving workers’ compensation benefits and pursuing a third-party claim but rather is allowed to pursue both remedies. In such situations the workers compensation insurance carrier is given a lien against the third party recovery.
In most occasions the third-party claim will take much longer to resolve than the workers compensation claim. This allows the injured worker to receive ongoing workers’ compensation benefits including temporary total disability payments (“time loss”), temporary partial disability payments (loss of earning power), permanent partial disability payments, permanent total disability payments, medical aid benefits, vocational assistance where appropriate, together with other workers compensation benefits that might be available while the third-party claim is pursued. This minimizes the suffering compared to a normal negligence claim where the injured party must self finance their own lost time, medical expenses etc. until the tort claim is resolved.
The amount that a successful third-party claimant must reimburse to the workers’ compensation carrier varies based on the workers compensation system. Under the Washington State Industrial Insurance Act there is a precise formula to determine the reimbursement to either the Department of Labor and Industries or the self-insured employer. The formula is such that the injured worker is guaranteed to receive some of the money from the third-party recovery before for reimbursement to the Department or the self-insured employer for the lien. Under the current state of the law recoveries for general damages or by a spouse for loss of consortium are not subject to the lien under the theory that the workers compensation act does not compensate an injured worker for either element of damages. This issue is before the State Supreme Court at this time for review and this will be updated as necessary when the Court reaches a decision.
Under the Longshore and Harbor Workers’ Compensation Act, and related laws, the lien of the insurance carrier or self-insured employer is repaid 100%, after the payment of attorney’s fees and costs, before the injured worker receives any monies from the third-party recovery. At this point in time the insurance carriers’ lien extends to the full recovery including general damages.
Under either the Washington State system or the Longshore act a third-party recovery that will be a deficiency settlement (recovering less than the amount paid, or payable, as worker’s compensation benefits) must receive prior approval. Failure to follow the statutory requirements for such approval can jeopardize further benefits under the workers’ compensation system.
Although there are potential pitfalls, in most cases is a great advantage to the injured worker to be able to pursue a third-party claim. Workers compensation systems pay temporary total disability or time lost benefits based on a percentage of wages with a statutory maximum that can be recovered. Third-party claims allow for a full recovery including wages, loss of fringe benefits, including health care benefits, pension contributions etc., bonuses, and other forms of compensation. Third-party claims also include awards for general damages (pain and suffering, loss of the ability to enjoy life, etc.) which are not payable under workers’ compensation programs. Third-party claimants can recover for future loss of earnings or earning capacity which might not be collectible under workers compensation system depending on the nature of the injury or specifics of the worker’s compensation program.
Generally speaking, comparative negligence of the injured worker is not a bar to pursuing a third-party claim but rather would only serve to reduce the award based on the percentage of negligence attributable to the injured worker. Under Washington State law negligence of the injured worker’s employer or a coworker would also not reduce the recovery as the employer’s contribution is through the workers’ compensation system.
In conclusion, an injured worker or one who suffers an occupational disease who feels his or her condition was caused in whole or in part due to the negligence or other wrongful actions of someone other than his or her employer or co-worker should contact an attorney experienced in handling their party claims to discuss the potential of bringing an independent action against the third party.
Workers’ Compensation Offset of Social Security Retirement Benefits – Can it be stopped?
THE HISTORY: In Washington State the workers’ compensation system has been offsetting a claimant’s receipt of social security retirement benefits since 1986. Social Security disability benefits have been offset since the 1970s, but it took a while longer to implement an offset to retirement benefits. All injured workers who were not on Social Security Retirement in July 1986 have had their later entitlement to retirement benefits subject to the potential for offset.
Generally the offset is calculated based on either a worker’s average current earnings (ACE) or their time loss rate. The average current earnings are calculated based on the highest calendar year earnings of the worker divided by 12 to find an average month. The offset is then calculated by taking 80% of the ACE. That figure represents the maximum beyond which the combination of SS retirement and worker’s compensation benefits cannot exceed. Since a worker’s compensation cannot be reduced because of the offset, if that 80% figure is below the time loss rate, then the time loss rate will be used to calculate the “cap”. In that latter case all of the retirement benefits are subtracted from the time loss benefit and the worker receives no increase due to the entitlement to retirement benefits. Where the ACE is higher than the time loss rate, then the workers’ compensation benefits are reduced to the point where the retirement benefits plus the workers’ compensation benefits equal the ACE figure. In that case the worker receives more money than on workers’ compensation alone, but still at a reduced rate due to the social security offset. There are periodic cost of living adjustments provided, either yearly for those whose time loss rate is the basis for the offset or every three years if the ACE is the basis for the offset. [Yes, it is complicated!]
The offset was challenged as being in violation of the Washington State constitution but that was rejected by the Washington Supreme Court in 1993. A recent challenge to a similar law in Utah was successful as the Utah Supreme Court found it violated the Utah and U.S. Constitutions (exactly the opposite decision from Washington’s court some 16 years earlier). It is unlikely the Washington Court would be willing to revisit that issue having already considered and ruled on the issue, despite the different outcome in Utah.
CAN THIS BE FIXED? A bill has been introduced in the Washington Legislature (HB 1211) to repeal the retirement offset. That bill has yet to gain any real traction despite being introduced again this year. Representative Steve Kirby (D-Tacoma) is the only sponsor of the bill and remains committed to its passage, but without more support the bill is unlikely to move forward. The Legislature is out of session for the year and meets in short session next year. Although economic times are tough for the state, they are also tough for those workers’ on time loss or pension benefits and who are having their hard earned retirement benefits from social security offset against their compensation benefits.
WHAT CAN YOU DO? All legislators respond to constituents’ needs and demands in one form or another. One call might receive a polite reply, dozens calls from different constituents might raise an eyebrow (and polite replies), hundreds of calls might reflect a groundswell, thousands of calls might reflect a movement was underway. If every injured worker called their representative and asked them to contact Representative Kirby to become a co-sponsor on the bill (or at a minimum to otherwise support the bill) and if every injured worker called their state senator and asked them to support the bill when it gets to the Senate the bill can ultimately have a change of passage.
IS THERE HOPE? Even with a strong groundswell from the injured worker community the bill is not assured of passage. While it has strong support on equitable grounds (SS retirement is based on a lifetime of work and is intended to replace wages during a worker’s retirement years) and has nothing to do with disability or the disability system (which offsets workers’ compensation and SS disability to make sure a worker has incentive to return to the work force and that life will not be too comfortable – financially – on disability) the bill will have a huge fiscal impact on the Department of Labor and Industries. On all bills filed which affect the state budgetary process the agency involved files a “fiscal note” with the Legislature advising what the financial impact will be if the legislation is passed. While workers’ compensation benefits are not funded out of general revenues – rather from employer and worker premiums – if there is a large fiscal impact it could include the need for some premium increases or consideration thereof. This could spook the Legislature into rejecting the bill despite large popular support from constituents.
FINAL WORD: The bill will go nowhere despite the good intentions of Rep. Steve Kirby unless support can be generated from other legislators. The way to start that process is to spread the word among injured workers, friends of injured workers, unions, disabled support groups, retirement groups, etc. If those groups can get behind this bill, and should a steady groundswell rise up, the Legislature cannot ignore it. Like all long marches, they must begin with the first step. Rep. Kirby can be reached at: firstname.lastname@example.org. Let him know you care. Let you own Representative know you care. Step up and make some phone calls, send some emails, spread the word that the time has come to pass HB 1211 and repeal the social security retirement offset from Washington State workers’ compensation benefits.
Will the $250 federal stimulus payment to SSA and SSI recipients be subject to workers’ compensation offset?
A question has come up whether workers’ compensation programs will offset, as permitted by federal and state law for those who receive both workers’ compensation benefits and social security benefits, the one time $250 federal stimulus payment due to SSA and SSI recipients in late May 2009. At least in Washington State it appears that the federal stimulus monies will NOT be offset by the Department of Labor and Industries, the agency which administers both the state fund and self insurance programs. While it appears likely a workers’ compensation program COULD offset the $250 just like any other benefits received from Social Security, the Department of Labor and Industries, upon inquiry, has advised that it will NOT be offsetting the one time payment. It is quite likely that the costs of entering a separate order in each individual claim modifying the offset based on a one time payment was felt to exceed any benefit enjoyed from the one time $250 windfall, but for whatever reason, it appears that the stimulus monies are safe for now…
Injured in Iraq or Afghanistan? Welcome to Defense Base Act claims.
Many civilian workers injured while working in Iraq and Afghanistan are returning home with uncertainty as how to pursue their claims for workers’ compensation benefits. While not including all civilian, non government, workers in those geographic regions, the bulk of injured workers returning from Iraq or Afghanistan will have claims under the federal Defense Base Act (“DBA”). While a separate federal law, the DBA incorporates the procedures applicable to Longshore and Harbor Workers’ Compensation Act for processing and resolution of claims.
The DBA provides coverage for those injured while working for a contractor engaged in “public work” overseas which generally includes fixed improvements in conjunction with the national defense or operations under service contracts in connection with national defense, war activities, harbor improvements, dams, roadways, housing and ancillary work in connection therewith. To be “public work” covered under the DBA the claim must arise from a contract with the United States to perform public work overseas. Also included are service contracts in conjunction with the performance of such overseas public work.
Accordingly many of the civilian workers employed in Iraq and Afghanistan under contracts to aid the war effort or contracts for “public work” involving construction, alteration, removal or repair of the United States or its allies are covered by the DBA. There is coverage in conjunction with activities arising out of the scope and course of the performance of the work (e.g. a truck driver carrying war supplies is injured in a collision with another truck) as well as the extended coverage available in the “zone of special danger” for injuries/deaths not necessarily arising out the scope and course of the work.
Under the “zone of special danger” doctrine, coverage is extended to those whose injury did not occur in the normal space and time boundaries of work, but to those who are injured or killed while within an area where the obligations of the employment create a zone of special danger out of which the injury arose. Included in the “zone of special danger” cases are injuries/deaths in employer sponsored recreational areas, or even further removed injuries/deaths such as an employee injured or killed while on a weekend outing (the employee had to work “under the exacting and dangerous conditions” of the area and thus was covered). Also covered in the “zone of special danger” was a worker who suffered a heart attack while off duty in his barracks in Greenland.
While handled similar to Longshore and Harbor Workers’ Compensation Act cases, there are differences in some details that make finding an experienced attorney important. There can be slight differences in the calculation of the Average Weekly Wage, there are procedural differences (while the claims must occur outside the continental U.S. they must be initiated in very specific district offices of the Office of Workers Compensation Programs; they are adjudicated in that District office until the employee returns home in which case the case can be transferred to the District appropriate to the worker’s residence) and under certain circumstances the appeal procedures differ from Longshore and Harbor Workers Compensation Act cases.
In my own practice, I have handled cases under the DBA to include, for example, a truck driver who suffered a herniated disc in his back when his tanker truck slipped into a two foot deep “rut” while delivering jet fuel to support the war effort in Iraq (a case where the injury occurred in the “scope and course of employment” much like any workers’ compensation claim) and a physician’s assistant employed to provide medical support to the activities of rebuilding the science research station at the South Pole who slipped on ice and fractured his leg on the way to the bathroom (“injured in the zone of special danger”).
As such, whether injured in Iraq, Afghanistan, the South Pole, Saudi Arabia, Greenland, South Sea islands, or anywhere else work is being performed under a contract of the United States to complete public work for the U.S. or its allies and/or under a service contract for such operations, the Defense Base Act is likely the applicable Act to provide workers’ compensation coverage. Care must be taken to assure your rights are protected as many employers will attempt to cover these types of claims under state workers’ compensation acts (where benefits are reduced) or otherwise to avoid financial responsibility. Even if one is receiving benefits under a state workers’ compensation benefits for such an injury which occurred outside the continental U.S., consultation with an attorney experienced in the Defense Base Act is advisable to assure that one’s claim is being processed under the correct workers’ compensation act to maximize benefits received.
War Hazards Compensation Act: For those who are injured or killed by hostile actions under a declared war or “hostile action” there is coverage under the War Hazards Compensation Act (“WHCA”). This covers all civilian workers injured or killed due to “hostile actions” even if they would have otherwise been covered by the DBA or other workers’ compensation acts if injured or killed due to injuries which occur in the scope or course of their employment (not arising out of hostile actions or which occur in the “special zone of danger” not arising out of hostile actions). All WHCA claims are handled through the Washington, D.C. district of the OWCP, under the procedures applicable to the Longshore and Harbor Workers’ Compensation Act.
Social Security Disability Hearings: Should you accept a video hearing if offered?
The Office of Disability Adjudication and Review (ODAR – where the administrative law judges who do hearings are assigned from) has a program where they offer hearings at remote sites where the judge and many times medical or vocational experts appear via video or audio connections. Is this a good idea?
This technology has been used for several years but seems to be picking up steam as means to save travel costs for judges in a time of tight budgetary constraints (yes, even some federal agencies have to tighten their belts). In this technology the claimant (and representative if he/she has one) appear at one hearing site and the judge is at another (in this area usually Seattle, although sometimes to help reduce the backlog a judge from some other region will participate via the video process).
When these first started the technology was very poor and the images were choppy, the sound sometimes a little garbled and frankly they were a very poor way to have a hearing on something as important as ones right to disability benefits, a decision making process that would very significantly affect the claimant’s future. However the technology has improved some to where the flow of images and sound is fairly consistent and clear. Certainly not yet the equivalent of cable TV (analog not even close to digital or HD) but better technology has arrived to the point where consideration of the video hearing might be appropriate if the positives might outweight any negatives from doing it in that manner.
I have often described to my clients that the hearing process is that time where the judge, serving as the final gate keeper to the social disability benefit access, must carefully listen to the claimant and look him/her in the eye and make a decision (assuming the medical evidence will also support a favorable decision) about putting the claimant on disability benefits for what might in most cases be for the rest of their lives. This is an important decision not only for the claimant but for our social security system. We all want to reserve the system for those who truly are qualified and deserving, denying those who chose not to work and seek some form of government support. So, I have always put great importance in how my clients have presented to the judge and have made sure that they understand that the judge is that final gate keeper and he/she will look them in the eye and make very important mental impressions and later decisions about whether to believe what they are told about the nature and extent of disability the claimant has. When my clients have the time to prepare how to describe how their medical conditions prevent them from even living a normal life, let along working, and then look the judge in the eye and with conviction convince the judge of the truth of what they say it almost always results in a favorable outcome (assuming we’ve been able to gather medical evidence that describes the conditions and offer medical opinions about the general limitations imposed by them).
All of this is lost with a video hearing. Even with large projection screens (they’d be great for a football game or the World Series) the judge is usually a relatively small figure and with unprofessional lighting (using the lighting already in the hearing room with no effort to properly light the participants so they are better visible to those watching in remote sites. While I’ve not been on the other side, I can only assume my client and I are similarly relatively small and with no additional lighting make a less than ideal image to try to look my client “in the eye” and judge his/her credibility. This does a disservice to the entire hearing process.
In addition, many times the medical expert (hired by ODAR to help the judge understand the sometimes complicated medical evidence presented in support of a claim) or vocational expert (also hired by ODAR to advise the judge on vocational issues including better understand the claimant’s past work and trying to identify work the claimant can do given any limitations the judge feels are appropriate given the medical evidence and the claimant’s testimony) are also appearing by video or even audio connections (telephone). When they are not at the same site with the claimant the benefit of the claimant’s testimony is largely lost. A medical expert was unable to benefit from watching the claimant testify and being able to “see” the pain in their faces as they testify is going to be less sympathetic in advising the judge about limitations that might be medically appropriate for the claimant. A vocational expert not present is probably less likely to have an opportunity to testify in a manner favorable to a claimant who he/she believes is honestly presenting their condition, but there are times when a claimant’s physical/mental abilities might be close to performing a job, but where the vocational expert might offer some barrier to the position based on his/her perceptions gained through the course of the hearing and thus eliminate it from consideration. A little sympathy cannot hurt and it is lost without the ability to see the claimant in person.
So, that’s a long way of suggesting video hearings are generally not a good idea. The only benefit is possibly to be able to get a hearing scheduled sooner than waiting for judges to travel to remote sites, but if the net result is to have a greater chance to lose the hearing then there really is no benefit. At this point, I’d only consider advising my clients to agree to video hearing if I’ve been able to develop overwhelming medical and vocational evidence supporting their claim and can see not real way that the outcome would not be favorable. Otherwise, I advise ODAR that we’ll wait for a “live” hearing. The delay does not have to be significant. As an example in late May 2008 we were notified we’d been scheduled for a video hearing for June 30 (we were to appear in Olympia, the judge and vocational expert would be in Seattle). We advised the judge that was not acceptable and were then able to wait and have a “live” hearing in Olympia in mid September. While that is a 2½ month longer wait, when hearings take up to two years to achieve, a small additional wait is well worth improving the changes of success. One additional note, by insisting on a “live” hearing we did lost the availabilty of the initial judge we had scheduled in June. That can cut both ways depending on which judge I might consider more conservative (less likely to award benefits) or more liberal (more likely to award benefits), but that is a good subject of another blog another day…