On behalf of all the attorneys and staff at the Disability Claim Law Firm of Turley, Redmond Rosasco & Rosasco, LLP, we wish you and your families Happy Holidays and a Healthy New Year! 

"God Bless Us, Everyone!"

Are Social Security Disability Judges awarding too many or too few disability claims?  According to an article on the Social Security disability system by Damian Paletta in the Wall Street Journal today, that will be the subject of an independent  review of the federal disability system by the Administrative Conference of the United States  focusing on the work of Social Security Administrative Law Judges (ALJ's).  A draft of the study is due August 2012, with final recommendations due November 2012.

There is certainly a need for improvement on both ends of the spectrum across the country.  Earlier this year, as reported in the New York Times, a class action lawsuit was filed against five Social Security ALJ's claiming anti-claimant bias in the Queens New York Office of Adjudication and Review.    Read my affidavit that was submitted to the federal court regarding the abuses of Social Security Queens Chief Judge David Z. Nisnewitz and ALJ Seymour Fier here.

The plaintiffs in this case, Padrue v. Astrue, recently  won a motion in federal court granting their request for expedited discovery. Depositions of hearing office personnel, and possibly ALJ's in that office, should begin soon.  The case is being handled on a pro bono basis by the national litigation law firm Gibson Dunn.  The relief requested includes wholesale re-hearings going back years for all claimant's denied benefits by the named ALJ's.  This is one example of bad and abusive ALJ's contributing to the ongoing backlog of disability claims at the Social Security Administration. 

On the other, equally bad, end of the spectrum is the case of West Virginia Social Security ALJ David B. Daugherty, who apparently never met a claimant who was not disabled.  Unlike his brethren in Queens, New York, he was suspended for his outstandingly high allowance rate, and eventually retired.  The "Queens 5" continue to hear cases.  I guess granting cases is a more serious offense at Social Security than bullying and intimidating claimants, which was the M.O. for the Chief ALJ Nisnewitz in Queens. Either way, both examples of these "outlier ALJ's"" should be quickly purged from the system. The vast majority of fair ALJ's should not be tarnished by a few bad apples. 

Finally, in what appears to be an attempt by the Social Security Administration to stop certain mega-advocacy   firms from "dumping" weaker cases based upon the ALJ they draw for a particular hearing, Social Security is instituting a new policy starting 12/19/2011 where they will not tell a representative the name of the ALJ hearing a particular case until the day of the hearing.  While the motivation to correct this problem is indeed commendable, it does seem that Social Security is using a rather blunt instrument to correct a cancer that is localized to easily identifiable bad advocates.  

From a policy perspective, the use of "Surprise ALJ's" will necessarily lead to more appeals - further increasing the backlog of disability claims.  I would have preferred that SSA use a "surgical strike" rather than "napalm" to resolve this problem.  Tough to do in a large bureaucracy, but never-the-less worth the effort.  It will be interesting to see whether the new  "Surprise ALJ"  policy advances the quality of ALJ decision-making.

Troy Rosasco, a Partner at Turley, Redmond, Rosasco & Rosasco, LLP, has announced that as of December 5, 2011, the actual Zadroga Act Victim Compensation Fund “Compensation Claim Form” is now available online for those who were sickened or physically injured as the result of being exposed to airborne toxins from the Ground Zero site after the September 11, 2001 attacks.

This means that eligible 9/11 claimants, with or without attorneys, can file their Zadroga Act Victim Compensation Fund claims today. According to Mr. Rosasco, “Especially during the holiday season, many sick and destitute 9/11 victims will now find newborn hope that their anguish will be lifted in the coming New Year.”

On December 5, 2011, Sheila Birnbaum, Special Master of the 9/11 Victim Compensation Fund, released the actual Compensation Claim Forms for both deceased and personal injury claimants, which are available online at www.vcf.gov.

Claimants should complete this form if they were physically injured as a result of the September 11, 2001 debris removal efforts; they were present at one of the crash sites (or in the path of debris removal) between September 11, 2001 and May 30, 2002; and they wish to be compensated from the VCF rather than file a lawsuit.

Claimants have until October 13, 2013 to complete the form. The new September 11th Fund form also has a 21 page set of "instructions" to help file your claim  and a helpful "9/11 Victim Compensation Fund Document Checklist" .  

While it is strongly suggested that the forms be filled out online, they can be mailed as well. Mr. Rosasco suggested that those who may be currently experiencing financial difficulty should file as soon as possible. 

“Here we are almost one year after President Obama signed the James Zadroga 9/11 Health and Compensation Act of 2010 into law, and all the "pre-season" hard work of the Special Master and the Department of Justice brought us to the real “Opening Day” of the Victim Compensation Fund," Mr. Rosasco said. “Now the long season of individual compensation claim evaluations and potential hearings will begin.”

“A roadblock that claimants faced in order to get their fair share of the $2.775 billion Victim Compensation Fund has finally been lifted,” Mr. Rosasco's partner, Daniel J. Hansen said. “Thanks to the Special Master, claimants will have ample time to fill out the forms. Now that all the formalities have been taken care of, these heroes who unknowingly worked in the face of danger are able to receive the compensation they justly deserve.”

For more information, call 1(855) WTC-INFO or visit www.zadrogaclaimsinfo.com

The Wall Street Journal has an interesting article today on doctors working for the Social Security Administration (SSA) evaluating disability claims.   Apparently, these doctors are "revolting" because they feel that the Agency is improperly trying to influence their medical claim decisions in order to process the current backlog of disability claims faster.   The claims of these whiny doctors is all a bunch of hooey! 

The only thing "revolting" about many of these doctors are the poor medical decisions they have been making for years - which in turn are a major contributor to the current backlog of claims. This is nothing new and is not caused by any recent "upheaval".

As an Social Security Disability lawyer  who sees these doctors' decisions reversed on a regular basis by Administrative Law Judges (ALJ's),  I can tell you these doctors rarely make well reasoned, medically justified decisions.

More often, they simply "sign off" on claim denials because it is easier than justifying an award of benefits.  They simply pass the buck to the Administrative Law Judge, who may not see the claim for another six months or more, and then has to make the hard decision to grant or deny a claim. 

To the Social Security Administration's credit, their recent actions are corrective in nature and intended to relieve strain on the backlog of disability claims.  Social Security is simply trying to make sure that doctor's who work for them get it right the first time, thereby decreasing a claimant's wait for a correct decision on their disability claim.  Score one for SSA Commissioner Astrue!

The real deal is that most of these doctors are unhappy because Social Security is now paying them for  "performance"  on a per claim basis, as opposed to their prior leisurely $90 per hour pace.  These doctors, many of whom have been "retired" from the regular practice of medicine for decades, had a good thing going while it lasted.  When asked to produce, the "semi-retired" Social Security doctors are leaving the system - plain and simple.

And as Wall Street Journal economic policy reporter Damian Paletta correctly points out, bad medical decisions often times result in severe economic hardship for claimants.  The new initiative to improve the previously broken system should be applauded.  Is it perfect? Perhaps not yet. But it was broken long before. 

It is the most important New York workers' comp legal decision since the the legislature passed the sweeping New York Workers' Compensation Reforms of March 2007. 

Today, in  Raynor v. Landmark Chrysler,  the New York State Court of Appeals affirmed a lower appellate court ruling upholding provisions requiring private workers' compensation insurance carriers to make mandatory Aggregate Trust Fund (ATF) deposits for claimants classified as permanently partially disabled (PPD) and injured both before and after March 13, 2007.

Based upon Raynor, if a claimant was injured on 7/1/2006 (before the reforms capping the duration of permanent partial disability (PPD) awards), but classified PPD after the reforms took place (3/13/2007), the insurance carrier must make a mandatory present value Aggregate Trust Fund deposit for the future value of the indemnity portion of the award. 

For example, let's assume a worker hurt on 7/1/2006 is classified PPD at a $400/week rate of compensation on 7/1/2008.  Prior to the reform laws (heavily pressed for by the business community), the private insurance carrier could have leisurely doled out the worker's $400/week over time, while holding the large bulk of its financial obligation to the worker in its own bank accounts.  Now, after the clarification of Raynor, that scenario has been turned on its head. 

Upon the worker being classified PPD, the private insurance carrier is obligated to deposit the present value sum of future indemnity payments into the Aggregate Trust Fund (ATF).  In many cases, such deposits will be in the hundreds of thousands of dollars. This is a private workers' compensation insurance company's worst nightmare. 

The New York State Insurance Fund (NYSIF) and self-insured employers are exempt from the mandatory ATF deposits, and private insurance carriers argue this gives them a distinct competitive market advantage - which is hard to dispute.

Practically, just the threat of a potential PPD classification should cause insurance companies to pull out their settlement checkbooks and pens.  And this was the intention of the 2007 New York Workers' Compensation Reform legislation, at least in part.  

Prior to the reform legislation, there was too much litigation on cases that lasted sometimes for decades. The business community got their cap on PPD awards while claimants got what was hoped to be a quicker resolution of their claims. However, due to this long litigation brought by the private insurance carriers, there is currently a bottleneck of thousands of potential PPD claims at the New York Workers Compensation Board. Raynor should be the "Drano" the plumber ordered!

Now that the Raynor decision has put this issue to rest, private insurance carriers should immediately start to make settlement offers to claimants to avoid the hammer of the present value ATF deposit. 

The fairness of settlement offers will be based upon the ATF's present value discount tables and Board Bulletin 222-B. ( if you have questions about the fairness of your Section 32 workers compensation settlement offer, please contact  Troy Rosasco at  x123 for a Free Evaluation of your claim).

New York businesses should  finally start to see a financial benefit from the illusory promises of the 2007 reforms. And all will be right in New York Workers' Comp Land !??  Stay tuned...