Indiana Injury Lawyer Blog

On January 27, 2010, the Indiana Supreme Court held that the period of time that the immunity for loses caused by temporary weather lasts is "at least until the weather condition has stabilized". The high court also held that during this time period, the governmental unit is immunized for liability for alleged flaws in its remedial steps. In the case of Bules v. Marshall County, 2010 LEXIS 62, Robert Bules and his son Brian were injured in a single truck crash when Robert drove into high water on a road and lost control of his truck. Robert and Brain sued Marshall County alleging negligent warning of the dangerous road conditions. There was a sign placed close to the water on the road. Robert claims that the sign was too close to the hazard to make a difference. The trial court granted summary judgment in favor of the county. The Court of Appeals reversed the trial court. The Supreme Court granted transfer.

Justice Boehm, in writing for the Court, indicated that the statute in question, I.C. 34-13-3-3(3), ["A governmental entity or an employee acting within the scope of the employer's employment is not liable if a loss results from: (3) The temporary condition of a public thoroughfare. . .that results from weather."] requires that the loss result from a condition that is both "temporary" and "caused by weather." The Court noted that during the time that the government is in the process of responding to a weather condition, this immunity "extends to all claims caused by that condition during the period of reasonable response, whether the alleged injury occurred early or late in the response."

The Court found that there was no issue that the water on the road was caused by weather. It allowed, however, that there was a closer question about whether the road/water condition was temporary or had stabilized. The Court found that the since the water was still rising, the condition had not yet stabilized and was therefore still temporary. The Court found that the County attempted to address the flooding at the road site. Importantly, the Court found that the period of reasonable response "lasts at least until the condition stops worsening, in this case when the Yellow River crested." As a consequence, the Court held that because the accident occurred during this period, immunity applies, regardless of the inadequacies in the County's initial responses at the crash site.

Fibromyalgia is a terrible condition which causes pain, fatigue, difficulty sleeping, morning stiffness, headaches, painful menstrual periods, tingling or numbness of hands or feet, and difficulty thinking and remembering. Some people with this condition may also experience irritable bowel syndrome, pelvic pain, restless leg syndrome, and depression. Fibromyalgia is also a condition which frequently forms the basis of claims for Social Security Disability.

The Social Security Administration does not specifically include the condition of fibromyalgia on its list of diseases and conditions which may cause a person to be disabled. That said, many people have been award Social Security disability benefits because the condition of fibromyalgia was found to so severely affect them that they were no able to work. The first step toward a successful social security disability case is to obtain a diagnosis.

There are no recognized tests or imaging studies that can confirm or exclude the condition of fibromyalgia. Rather, fibromyalgia is a “rule out” diagnosis. That means that your physician orders tests for conditions that can be discovered by tests. Once those conditions are shown not to exist, your physician may conclude that your constellation or grouping of symptoms is fibromyalgia. In addition to the “rule out” diagnosis the American College of Rheumatology has established diagnostic criteria with a history of widespread pain for at least three months and pain in at least 11 of 18 tender point sites. The key to getting a diagnosis is not to give up. Often, fibromyalgia victims are not well understood by physicians. It is important to consult a physician who has the experience, the training and the patience to diagnosis this condition.

In a case of first impression, the Court of Appeals of Indiana on January 19, 2010 held in Compton et al. v. First National Bank of Monterey that because of the 2005 amendment to I.C. 30-5-9-2(b), the common law presumption of undue influence does not apply to a transaction even when an attorney in fact benefits if the following conditions exist: 1. the principal takes the action and 2. the power of attorney is unused.

In its opinion, the court reaffirmed that Indiana recognizes certain legal and domestic relationships raise a presumption of trust or confidence as to the subordinate party on the one hand and a corresponding influence as to the dominant party on the other. When those sort of transactions arise, the law imposes a presumption that the transaction was the result of undue influence exerted by the dominant party, constructively fraudulent, and thus void. In order to rebut or defeat the presumption, the dominant party had to show by clear and unequivocal proof that the transaction was made at arm's length. (In practice, the effect of this presumption was to essentially preclude all transactions between a principal and her agent.)

The court did acknowledge that prior case law stood for the proposition that a power of attorney creates a fiduciary relationship between a principal and her agent and as a consequence, the presumption applied. However, the court held that the 2005 amendment to I.C. 30-5-9-2 changed the law. While finding no cases on point, the court cited, with approval, the probate treatise, Henry's Indiana Probate Law and Practice as supporting the court's finding that the statutory amendment essentially "abrogated" the common law presumption dealing with qualifying transactions involving a principal and her agent.

Importantly, the court found that a person who wishes to challenge the action of an attorney in fact was not left without a remedy. The challenger still has available the right to complain based on undue influence.

Many people are surprised to learn that after an Appeals Council remand, the ALJ who will hear the case will be the same ALJ who originally heard the case. ( Hallex I-2-155). There are certain exceptions to the same ALJ rule. These exceptions include a specific direction from the court or the Appeals Council that a new ALJ be assigned; a finding the the claimant did not receive a fair hearing; the case has already been remanded from an appeal; or scheduling problems.

It is unusual for the Appeals Council to order the a new ALJ be appointed on the first remand. As far a court order directing that a new ALJ be appointed, common law has evolved sufficiently to establish a set of criteria for such an order. The criteria centers around those situations which compromise the integrity of the disability review process. "Specifically, when the conduct of an ALJ gives rise to serious concerns about the fundamental fairness of the disability review process, remand to a new ALJ is appropriate. Factors for consideration in this determination include: (1) a clear indication that the ALJ will not apply the appropriate legal standard on remand; (2) a clearly manifested bias or inappropriate hostility toward any party; (3) a clearly apparent refusal to consider portions of the testimony or evidence favorable to a party, due to apparent hostility to that party; (4) a refusal to weigh or consider evidence with impartiality, due to apparent hostility to any party." Sutherland v. Barnhart, 322 F.Supp.2d 282, 292 (E.D.N.Y. 2004)

Social Security Disability process is heavily dependent upon medical records. Those who decide disability case are trained to review, analyze and understand the medical records of a Social Security claimant. Once the records are fully understood, the claim person then makes a determination whether those records prove that the claimant has a medical problem that is expected to make the person unable to work.

Unfortunately, all medical records are not "created equal". Some are too brief. Others are difficult to read. Many do not incorporate all of which the patient had told the health care provider. A journal or diary will not take the place of medical records. It can, however, contain very useful information that would otherwise be lost to the memory of the disabled worker by the time a disability hearing occurs.

The journal or diary need be in any particular form, on special paper or be written, printed or typed in a specific way. An inexpensive spiral notebook is great. Each entry should contain the date and the name of the person making the entry. The entry does not need to be very long. Instead, it need only contain the essential points that the claimant wishes to recall later. For example, if part of the basis for the disability claim is a seizure disorder, then writing down the fact that a seizure occurred and some brief detail about the experience is enough. If part of the disability claim is based on headaches, depression, incontinence (bowel or bladder) or pain, then a brief note of the experience is that is needed. It is best to make the entries at or around the time of the occurrence. Before the hearing, the journal should be given to your attorney for use in preparing you for the hearing.

As any one knows who has filed a claim for disability benefits, the wait time for a disability hearing can be very long. SSA recognizes that some of its 142 hearing offices across the nation are busier than others. For that reason, it has begun to reassign cases from the very busy hearing offices to less busy hearing offices. Those administrative law judges to whom cases are assigned from distant hearing office must not only review and prepare the cases but also hear those cases.

Since travel time by the newly assigned administrative law judges takes more time, SSA has set up hearing rooms equipped with video systems that allow a judge to see and hear the claimant in a hearing office close to the claimant's home while the judge is at her hearing office in another state. Witnesses called by the administrative law judge appear in the same room with the claimant, or in the hearing room where the administrative law judge is located or by telephone from a third location.

SSA does not force a disability claimant to choose a video hearing. In fact, all video hearing notices come with a notice informing the claimant that he has the right to have an "in person" hearing with the administrative law judge. Does the outcome of the disability hearing change because it was a video hearing? In my experience, the fact that a social security disability hearing is conducted by video rather than in person has no bearing on the ultimate outcome of the case. The only thing that a video hearing does is provide a way to make the case go more quickly. While other attorneys opinions may differ, I encourage my clients to allow their hearing by video when that option is offered.

Over the last few years, the time for the ODAR (Office of Disability Adjudication and Review) Indianapolis Office to process requests for hearings has been around 2 years. That means that from the time a disabled worker files a request for hearing until the time a decision was made and mailed, it would take about 2 years. This time calculation does not take into account the the many months it took to wait for the denials at the initial and reconsideration stage.

The Social Security Administration has taken steps to improve the disability claims backlog by hiring additional administrative law judges and more support staff. As part of its effort to reduce the wait time, SSA has also introduced video hearing equipment. This equipment allows administrative law judges from around the county at less busy ODAR offices to step in and hear disability cases without the time consuming task of traveling to Indianapolis.

Finally, SSA has expanded the role of senior attorneys by allowing them to screen and allow fully favorable cases "on the record" without then need for a hearing.

As a result of these efforts, the Indianapolis Hearings Office has reduced its pending case level from over 19,000 cases at the end of 2008 to 15,863 cases at the end of 2009. Significantly the average processing time was deceased from 787 days in 2008 to 603 days by the end of 2009.