L&I and Structured Settlements

Is a structured settlement of your L&I claim right for you? I know the department sends out form letters to injured workers who are at least 50 years old and have allowed claims informing them that they may be eligible for a structured settlement of their claim. What is a structured settlement, and is it in your best interest to “settle” your claim.

The Legislature called them structured settlements because you do not get the total agreed to amount in a lump sum. It is parceled out to you based on what can only be described as a weird formula. (payments of at least 25% but not more than 150% of the State’s average monthly wage – who makes this stuff up!?) The idea is the funds will provide a soft landing back into the world without L&I. In exchange for the settlement, your claim is closed with only the possibility of payment for future medical treatment if the claim is reopened. That means no future time-loss, vocational benefits, PPD or Pension awards. Is that a good idea for you?

Maybe – maybe not. There are a lot of things to consider.

What is the status  of your medical treatment? While a structured settlement leaves open the possibility of reopening your claim for medical treatment, moving forward with a settlement if you are still actively treating for your work injury is probably not a good idea. Reopening a claim for medical treatment can be an expensive proposition if there are any disputes about whether your condition has objectively worsened.

Are there disputes in your claim? There probably are, if you are being offered or are considering a Structured Settlement. Is there a sum of money for which it makes sense to walk away from those disputes? Perhaps. It depends on what the dispute is about, what you have to gain, and how much it may cost you out of pocket to litigate the issue. Do you have more to gain than lose? These are questions an attorney can help answer.

Can you support yourself without payments from L&I? Do you have a real plan to return to work, are you on Social Security Disability or Retirement? If L&I is out of the picture, can you make ends meet? You have to be honest with yourself about your financial situation. Whatever the amount of your Structured Settlement, it will be paid in full at some point, and there will be no further payments from L&I, no matter what your situation.

These are only a few of the things you should consider. Deciding to accept or negotiate a structured settlement is a big step. It may be right for some injured workers in some situations, but it is certainly not a one size fits all answer. Make sure you understand what is being offered and what you will be giving up. Ask questions. Get legal advice. Give yourself the best possible chance to make the right choice for your particular circumstances.

Longshore Notice of Calendar Call

When a Longshore, DBA, or non-appropriated fund claim is set for Hearing the Judge sends out a Notice of Calendar Call. This notice not only provides the date of the Calendar Call, it includes a long list of actions and due dates the parties must attend to. All these actions and deadlines get added to my calendar, with tickle dates. It can look like a lot to do, and, well, it is!
I can also look at this notice and see what other claims are set for Hearing the same week, and which attorneys represent the various parties – mildly interesting stuff.
What is somewhat terrifying is to see a Claimant’s name listed, with no attorney representation noted. I never know whether this unrepresented Claimant has a legitimate case to make, or whether it’s a bad case, for whatever reason, and no attorney is willing to take it on. It troubles me to think some Claimant may have a decent argument to make, but may be going it alone, pro se, representing themselves.
I know there are all lot of smart people out there who aren’t attorneys. Or, people who don’t trust attorneys, or who had a bad experience with an attorney. But this system is fraught with deadlines and pitfalls and rules. While an Administrative Law Judge will be nice, and will absolutely let a pro se Claimant put on a case, the Judge cannot help you. You have the burden of putting on a prima facia case, the burden of presenting expert medical and/or vocational testimony, not to mention the organization and presentation of documentary evidence. This is your one shot to make a record, present evidence, and argue the relevant law. There is not another opportunity to make your case. You cannot take a run at doing it yourself, and then ask for a do over if it goes poorly.
If a Hearing has been requested, by either party, you are going to wait several months before you receive a Notice of Calendar Call. Take this time to consult with an attorney. The earlier an attorney gets involved, the better a case can be documented and presented. Maybe there is no good arguments to make – if that’s the case a good attorney will tell you the cons outweigh the pros. But you are not going to know if you don’t ask. Don’t end up on a Notice of Calendar Call unrepresented – there is just too much at stake.

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…