Indiana Injury Lawyer Blog

The National Ranking Report run for the period ending March 8, 2009 showed that out of the 149 Social Security hearing offices in the United States, the Indianapolis hearing office ranked 146 for processing time. The average number of days it took the Indianapolis hearings office to process a request for hearing was 734 days which is just at 2 years! The Fort Wayne hearings office ranked 138 for processing time for the same period. Fort Wayne's average time to process a request for hearing was 666 days or 1.8 years.

The same report for the period ending December 2008 ranked the Indianapolis hearing office 145 out of 147 office in the United States. The average number of days it took the Indianapolis hearings office to process a case was 721 days. In December 2008, the Fort Wayne hearings office ranked 114 in the nation, taking an average of 564 days to process a hearing request.

On March 24, 2009, the Commissioner of Social Security testified before the subcommittee of Congress which has oversight of the Social Security program. Commissioner Astrue projected that SSA will receive more than 2.9 million disability claims in 2009, an increase of 300,000 cases over last year. The Commissioner hopes that hiring more staff and judges will deal with both the backlog and the increase of new cases.

In October 2008, Michael J. Astrue, Commissioner of Social Security announced the beginning of a new program named "Compassionate Allowances." This program is designed to give very quick (in some instances six to eight days) awards of social security disability for claimants whose medical conditions are so severe that their conditions obviously meet the Social Security disability standards. This fast track approach deals, at least at this point, with people who have cancers and rare diseases.

The "50" conditions are: acute leukemia; adrenal cancer; Alexander Disease; amyotrophic lateral sclerosis; anaplastic adrenal cancer; astroycytoma; bladder cancer; bone cancer; breast cancer; canavan disease; cerebro oculo facio skeletal syndrome; chronic myelogenous leukemia; creutzfeldt-jakob disease; ependymoblastoma; esophageal cancer; Farber's diesease; Friedreichs Ataxia; Frontotemporal Dementia; gallbladder cancer; Gaucher disease; glioblastoma multiforme; head and neck cancers; infantile neuroaxonal dystrophy; inflammatory breast cancer; kidney cancer; krabble disease; large intestine cancer; Lesch-Nyhan syndrome; liver cancer; mantle cell lymphoma; metachromatic leukodystrophy; Niemann-Pick disease; non-small cell lung cancer; ornithine transcarbamylase deficiency; osteogensis imperfecta; ovarian cancer; pancreatic cancer; peritoneal mesothelioma; pleural mesothelioma; pompe disease; Rett Syndrome; Sandhoff Disease; small cell cancer; small cell lung cancer; small intestine cancer; spinal muscular atrophy; stomach cancer; thyroid cancer and ureter cancer.

According to the POMS, while the medical documentation may be "minimal" it must be "sufficient" and "objective".

Social Security believes that as many as 250,000 cases under this program will be decided in an average of six to eight days.

In a recent case decided by the U.S. District Court for the Southern District of Indiana, the judge held that the "law of the case" doctrine applies in Social Security Disability cases. The law of the case doctrine provides that , in a trial following a reversal and remand, if the evidence is substantially the same as the facts upon which the reviewing court based its decision, matters decided on appeal become the law of the case to be followed in all subsequent proceedings in the trial court and, on second appeal, in the appellate court, unless there is plain error of law in the original decision. Kaku v. Nagano v. Brownell, 212 F. 2d 262, 263 (7th Cir. 1954). See also, Vidimos v. Wysong, 179 F.3d 1063, 1064 (7th Cir. 1999).

As a consequence, the law of the case doctrine compels an ALJ on remand of a case from the district court, and the district court, on a second appeal, to accept the findings of the judge of the district court who first decided the case as established and not subject to further review or renewed appeal.

In the particular case in which the applicability of the doctrine was announced, a fibromyalgia victim had appealed an adverse decision of an ALJ to the district court. The district judge (in district court case No. 1), while remanding the case for further proceedings, made findings favorable to the claimant. At the second administrative hearing, the evidence of record was either cumulative or showed the claimant was even more in pain. Even so, the ALJ at the second administrative hearing made findings that were opposite to that which the district judge found in district court case No. 1. The second administrative hearing resulted in an denial of disability benefits. On appeal again to the district court (district court case No. 2) the district court held that the law of the case doctrine applied to the findings in district case No. 1. Based on this application, the ALJ at the second hearing erred when he made findings regarding the medical evidence that were directly opposite the findings of district court No. 1. District Court case No. 2 resulted in a reversal and award of disability benefits for the claimant based on her fibromylagia.

NO! Many disabled workers confuse the 12 month durational requirement with a 12 month wait to file a disability claim. These two concepts are very different. One of the requirements for qualifying for Social Security disability is called the durational requirement. This means that a disability must last 12 months or longer in order to qualify for Social Security disability. The point is that short term medical problems (that is, medical issues lasting less than 12 months) are not accepted under the program.

The durational requirement does not mean, however, that a disabled worker must wait for 12 months before he or she files for Social Security disability. Nor does it mean that the worker must be off work for 12 months before filing a claim. As long as the worker can prove that his or her disability can be expected to last longer than 12 months at the time of filing for a claim then that is all that is required to satisfy the durational requirement.

If a disabled worker has received a denial, Social Security will note on the last page of the denial whether its examiners have determined that the medical problems are not expected to last longer than 12 months. Often the medical examiners have find that the durational requirement has not been met in situations where an operation has occurred (such as an operation to repair a fracture or a back operation). Sometimes these medical problems continue to cause the worker to be disabled even with the best medical care. If these medical probles are expected to last 12 months or longer then they should satisfy the durational requirement.

Indiana has two statutes which may diminish or reduce subrogation liens. The first is I.C. 34-53-1-2. This statutes deals with the reduction of a subrogation lien by the pro-rata share of attorney fees and costs of litigation. The second is I.C. 34-51-2-19. This statute mandates the reduction of a subrogation lien due to the comparative fault of the insured or by reason of uncollectability. These two statutes are used often by Indiana attorneys to help maximize the recovery for their clients in personal injury cases. If the case was resolved by settlement rather than by a jury trial and the fault allocation or damage amount is in dispute, the injured party may file a declaratory judgment action against the lien holder in order to have the court make a judicial determination of the fault or amount of damages.

The Indiana Supreme Court held in Department of Pub. Welfare v. Couch, 605 N.E.2d 165, (Ind. 1992) that I.C. 34-53-1-2 applied to cases in which the Welfare Department was asserting a lien. This concept was reaffirmed by the Indiana Court of Appeals in Pedraza by Pedraza v. Grande 712 N.E.2d 1007 (Ind.Ct. App. 1999).

The conclusion by a Social Security Administrative Law Judge that fibromyalgia must not be a debilitating impairment when “practically all tests have been normal” is not an uncommon error. As Judge Chief Judge Posner wrote in Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996), fibromyalgia is a:

“common, but elusive and mysterious, disease. . . its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”

Judge Posner also noted that the Administrative Law Judge in Sarchet exhibited a “pervasive misunderstanding of the disease” by “depreciate[ing] the gravity of Sarchet’s fibromyalgia because of the lack of any evidence of objectively discernible symptoms, such as swelling of the joints.”

Some 11 years after the decision in Sarchet Administrative Law Judges still look, for "objective" signs and symptoms when confronted with a disability claimant who has fibromyaliga. Failing to find the requisite abnormalilties in tests, the claimant's disability clam is denied. It is very important to help educate the Administrative Law Judge both before and during the hearing about the nature of fibromyaliga and the current state of the law.

The Supreme Court of Nevada in the case of Lioce v. Cohen et al., 149 P3d 916 (Nevada 2006) held that the defense attorney's arguments based upon jury nullification, personal opinion regarding the justness of a plaintiff's case and invoking the golden rule argument amounted to attorney misconduct.

In four different personal injury trials in Nevada, a defense attorney made similar arguments during the trial. These arguments included an attempt at "jury nullification" [the Nevada Supreme Court defined jury nullification as "[a] jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness." Black's Law Dictionary 875 (8th ed. 2004). Examples include arguments that these cases wasted taxpayers' money and jurors' time. The defense attorney also argued that the cases were examples of people "looking for an excuse to sue someone at the drop of a hat" and that society now believed that "Americans have become a society of blamers."

The Court also found that the defense attorney impermissibly injected his personal opinion about the justness of plaintiffs' causes when he said that he had "a real passion for [these] case[s] and cases like [them]," because these were the types of cases that cause people to be distrustful of lawyers and legitimate plaintiffs and lead to what the defense attorney argued was the public's negative perception of the legal system.

Finally, the Court ruled that the defense attorney's closing argument, which contained a statement to the jurors, "You send your son or daughter" to a friend's house, where he or she was injured, and questioned, "[D]oes that mean you just go out and sue[?]" (Emphasis added.) invited the jurors to make a decision as if they and their children were involved in his hypothetical situation-a situation that somewhat paralleled the scenario of the plaintiff's daughter's injuries. The Court found that this question indicated that the jury could make a decision based on the personal hypothetical designed to trivialize the daughter's injuries instead of deciding the case on negligence law and the evidence.

This case underscores the obligation of defense attorneys to defend cases based only on the evidence and the law. The problem with defending against such unscrupulous tactics is the requirement of making timely objections to such argument. Most trial lawyer do not wish to make objections during the trial. This problem is actuated when the offending attorney makes repeated objectionable comments after an objection has been sustained. In cases where the comments rise to the level of "plain error" the Nevada Supreme Court created an exception of the need to object.

One method to deal with this type of conduct is to address it within the context of a motion in liminie prior to trial. In that way it is possible for the trial counsel and the court to be reminded of the rules before the "heat of battle".

Despite the Indiana Supreme Court's recent decision in Glotzbach v. Froman, 854 N.E.2d 337 (Ind.2006), in which the Court held that there is no third party cause of action for spoliation against an employer of the injured party, Indiana still recognizes the cause of action of third party spoliation cases. The right of an injured party to bring claim for third party spoliation was first recognized by the Indiana Court of Appeals in Thompson v. Owensby, 704 N.E.2d 134 (Ind.1998) trans. denied. The Thompson case is particularly important to me because I was the attorney who argued before the Indiana Court of Appeals and then the Indiana Supreme Court that Indiana Insurance Company, whose adjuster lost the dog leash which was the subject of a product claim, should be liable for Nicole's inability to prove her product claim against the manufacturer.

In Thompson, Nicole was severely bitten by a neighbor's dog as she rode her bike down her street. The dog had a history of being vicious. That is the reason that his owners had leashed him inside a fenced yard. The dog broke the leash, ran out of the fenced yard, onto the street and attacked Nicole. Indiana Insurance Company, the insurer for the dog owners, took control of the defective leash when it learned of Nicole's claim. During the course of the investigation, it lost the leash. We added the insurance company to the tort action against the property owners and claimed that to the extent Nicole was unable to prove her case of a defective product against the manufacturer due to the fact that the product was no longer available, then the insurance company should be responsible for what Nicole's case would have brought had the absent leash were present.

The Indiana Court of Appeals found that there was a special duty on the part of the insurance company to preserve evidence. To do so, the court found that there was a special relationship between the claimant and the insurance company, that the harm involved in loss of evidence was foreseeable and that the recognition of duty is consistent with Indiana's policy of accountability. The court wrote "[liability insurance carriers are no strangers to litigation, and it strains credulity to posit in a motion to dismiss that a liability carrier could be unaware of the potential importance of physical evidence.."

The Indiana Supreme Court, has a 2-2 tie vote on whether to accept transfer on Thompson. As a result, Thompson became the law in Indiana.

Continue reading "Third Party Spoliation Claims Still Alive Despite Recent Case" »

Fibromyalgia syndrome is a terrible disease that afflicts at least 5 million U.S. residents. It is characterized by chronic widespread pain, fatigue, sleep disturbance, stiffness, impaired memory and concentration, anxiety and depression. Even though the American College of Rheumatology recognizes the disease of fibromyalgia the Social Security Administration has been slow to accept it as justification to find a claimant disabled.

Chief Judge Posner of the U. S. Court of Appeals for the Seventh Circuit Court wrote in Sarchet v. Charter, 78 F.3d 305, 306 (7th Cir. 1996) that fibromyalgia could be the basis for an award of disability. Judge Posner described fibromyalgia as a:

“common, but elusive and mysterious, disease. . . its cause or causes are unknown, there is no cure, and, of greatest importance to disability law, its symptoms are entirely subjective. There are no laboratory tests for the presence or severity of fibromyalgia. The principal symptoms are "pain all over," fatigue, disturbed sleep, stiffness, and--the only symptom that discriminates between it and other diseases of a rheumatic character--multiple tender spots, more precisely 18 fixed locations on the body (and the rule of thumb is that the patient must have at least 11 of them to be diagnosed as having fibromyalgia) that when pressed firmly cause the patient to flinch.”

Judge Posner noted that "some people may have such a severe case of fibromyalgia as to be totally disabled from working. . . but most do not and the question is whether Sarchet is one of the minority."

Without question, fibromyalgia is a disease which can have debilitating consequences. It certainly can serve as the basis for a disabilty claim. The question is how severe is the disease at the time a claimant is seeking disabilty.

Call your insurance agent as soon as possible after an accident.

Do not admit responsibility. Exchanging information and giving facts in not the same thing as admitting responsibility! you may think that you were responsible for the accident and later learn that the other driver caused it or that the other driver was equally at fault.

See your doctor. It is always wise to have a physical exam after an accident. Your doctor may recognize injuries, sometimes serious, that are not apparent to you.

Do not sign anything. . . until you understand the full legal consequence of what you are doing.

Call your lawyer. The event of an accident has created certain legal rights and liabilities as to each driver. It is important that you know and understand what those are. A lawyer will tell you not only what your rights and obligations are, but will tell you whether further legal help is needed on merited.

If you are injured in an accident, never settle without talking with your lawyer.

Check with your auto insurance agent to make sure your insurance coverage is adequate (including uninsured and underinsured coverage).

Buckle up! It's the law.

Speed kills! Slow down.

Check brakes and lights to make sure they work correctly.

When an accident happens, make sure you follow the requirements outlined in the Glove Box Accident Handbook.

Be sure your children are secured in child restraints.

When an accident results in injury or death, each driver involved must:

1. Immediately stop as close to the accident scene as possible without obstructing traffic more than is necessary.

2. Remain at the scene until: a) the driver has given his or her name and address and registration of the vehicle; b) if requested; the driver has shown his or her license to the driver or passengers of the other vehicle; and c) reasonable assistance has been given to each person injured in the accident including the removal, or making arrangements for removal, of the injured to a doctor or hospital.

3. Notify the police immediately.

4. File a report with the Indiana Bureau of Motors Vehicles, PRF/Crash Report Section, P.O. Box 7169, Indianapolis, Indiana 46204 within 10 days after the accident. The written report can be found at http://www.in.gov/icpr/webfile/formsdiv/52441.pdf

If the driver is physically incapable of reporting as required by law then the passenger of that vehicle must file the report. If there is no passenger and the owner is someone other than the driver, the owner must file the report within 10 days after the accident.