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Silverman & Roedel, LLC 1187 Main Avenue
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Clifton, NJ 07011
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ON THE RIGHT SIDE OF THE LAW

There is more to the practice of law than television’s depictions of high courtroom drama and criminal behavior. In fact, most people in need of the services of attorneys are more likely to need professional representation when purchasing real estate or divorcing their spouses. Lawyers are also expert in the exceedingly important matters of drawing up and reviewing contracts as well as setting up corporations and other business entities. Attorneys may be called upon to initiate or defend civil suits that involve a range of wrongdoing, including personal injury. They also play roles in matters of death, wills and taxes. In future columns, we will show you how to put yourself on the right side of the law.

HINT: A lawyer’s expertise may also extend to workers’ compensation and rights in the workplace.

BITING COMMENTARY

Laws determining liability for dog bites vary according to state and are of two general types: The “one bite rule” focuses on whether the dog’s owner knew (or should have known) that his or her dog would bite and whether the necessary steps were taken to prevent the animal from biting. The recipient of the bite (plaintiff) must provide sufficient evidence to convince the jury that it was “more likely than not” that the defendant knew or should have known the dog might bite. States that have adopted the “strict liability” statutes hold the defendant liable if a biting event occurs regardless of whether the defendant could have done anything to prevent it.

HINT: The “one bite rule” is actually a misnomer in that it no longer allows dog owners “one free bite” before they get into legal trouble.

WHAT IS SSI, SUPPLEMENTAL SECURITY INCOME

The SSI program makes payments to people with low income who are age 65 or older, or who are blind or have a disability. The Social Security Administration manages the SSI program. Even though Social Security manages the program, SSI is not paid for by Social Security taxes. SSI is paid for with U.S. Treasury general funds. Benefits vary from state to state. To be eligible depends on what you make (wages, Social Security benefits and pensions) and what you own. A part of your spouse’s income is also considered when determining eligibility. If you are a student, some of the wages or scholarships you receive may not count. If you are disabled but work, Social Security does not count wages you use to pay for items or services that help you to work. Also, Social Security does not count any wages a blind person uses for work expenses

INJURED BY A PRODUCT?

Ordinarily, for plaintiffs to hold someone liable for their injuries, they must prove that the defendant was careless. However, because it’s very difficult for consumers to prove that a manufacturer or seller of a product was careless, the law developed a doctrine known as “strict liability.” It allows a person who is injured by a defective or dangerous product to recover compensation from the manufacturer or seller of the product if three conditions exist: The product had an “unreasonably dangerous” defect that injured the consumer of the product. The defect must also have caused an injury while being used in its prescribed manner. Lastly, the product must not have been substantially changed from the condition in which it was originally sold.

HINT: Strict liability is a way of holding someone accountable for behavior, regardless of fault. It only applies to civil, not criminal, law.

REPORTING YOUR ACCIDENT

While a “fender bender” accident may seem to be a minor incident, those involved shouldn’t hesitate to report these accidents to the police. Failure to do so, usually as part of a mutual agreement with the other driver to keep the incident among yourselves, leaves you vulnerable to being deceived. That is, the other driver may later decide to file an accident report, which afterwards contends that he or she was injured despite claiming not to be injured at the time of the accident. Without a police report, there is no official documentation to counter the other driver’s claims that his or her injuries were your fault or that any damage found on either vehicle was caused by the accident.

HINT: Use your smartphone to take pictures and document the damage caused by an auto accident. Also, be sure to collect the contact information of any eyewitnesses.

YOU CAN APPEAL DENIED SOCIAL SECURITY DISABILITY CLAIMS

If your claim for Social Security disability benefits has been denied, you can appeal that decision. We have made many such appeals over the years. It is customary that we file such an appeal within 60 days from the date of receipt of the letter of denial from the Social Security Administration. The SSA assumes that the denial has been received five days after the date on the letter unless it can be proven that it was received later. If you have been denied for medical reasons, and Social Security believes these reasons are not valid, an appeal can still be filed. Generally there are three levels of appeal: Reconsideration, which is a complete review of the claim; Hearing, if you do not agree with the reconsideration in front of an administrative law judge; and Appeals Council, if you disagree with the hearing decision. For each of these appeals, it is wise to have legal counsel.

NURSING HOME ABUSE

It’s difficult enough to make the decision to place a loved one in a nursing home without learning that he or she has endured either verbal or physical abuse. Worse yet, the majority of violations are never reported, either because the abused have no practical way of reporting their complaint or they fear retribution. Thus, it is incumbent on visiting family and friends to look for any outward signs of physical abuse (including bruises and lacerations); neglect (significant weight loss, bed sores, dehydration, and unsanitary personal hygiene); or emotional or sexual abuse (depression, anxiety, or withdrawal behavior). If a direct discussion with the nursing home administration does not satisfactorily resolve concerns that the resident’s family has, an attorney should be consulted.

HINT: The most effective form of legal recourse that victims of nursing home abuse have is a negligence lawsuit.

DISABILITY PROGRAM - COSTS CAN BE REDUCED

It has been suggested by some that there is much wasteful spending, and even fraud, in the administration of disability claims. The federal government can certainly reduce the disability rolls and the cost of the disability program by conducting more frequent and tough-minded evaluations of recipients’ disability status. Unfortunately, there will be some collateral damage. These re-evaluations will impose real hardship on some disabled workers whose cases are reviewed. Although it makes sense to conduct them, it makes better sense to focus on workers with medical conditions that are most likely to improve. More funds could be saved by concentrating resources in parts of the country where statistics suggest that error rates are highest.

DAMAGES

As the plaintiffs in a personal injury case, those who have suffered an injury, property damage, or any other kind of loss may seek compensation from whomever caused or contributed to those losses. The legal term for this kind of compensation is “damages,” which are divided into a number of categories. “Compensatory damages” are designed to make a person “whole again,” that is, returned to the position which existed before the harm or loss occurred. One of the two main categories of compensatory damages is “general damages,” the amount needed to restore the fair market value of the property to its owner. The other is “special damages,” which include the cost of services and out-of-pocket items that can be documented.

HINT: “Punitive damages” are only awarded to an injured plaintiff when the wrongful behavior of the defendant was despicable or reprehensible.

ASSESSING NEGLIGENCE

Before a defendant can be held legally responsible for harm caused by his or her negligence, the plaintiff must prove four elements. The first is that the defendant owed the plaintiff a legal “duty” to follow an accepted standard of care. Next, the plaintiff must prove that the defendant “breached” that legal duty by acting or failing to act in the way that a “reasonably prudent person” would under similar circumstances. The third element requires that the plaintiff prove that the defendant’s negligence “caused” his or her injury. Lastly, the plaintiff must prove that the harm or injury sustained caused calculable and compensable damages. The plaintiff’s attorney must determine if all these elements apply.

HINT: If a defendant in a negligence case could not have reasonably foreseen that his or her actions would cause injury to the plaintiff, the defendant will not likely be held liable.

Monies Allocated to Help Process Disability Claims

The economic stimulus bill previously passed provided the Social Security Administration an additional $500 million to process retirement and disability workloads. The increase of claims was caused by the economic downturn and the ever increasing number of baby boomers becoming eligible for benefits. Part of the allocation was slated for labor costs and new employee hirings, but the lion’s share went to the offices of Operations and Disability Adjudication and Review as well as for health information technology research and activities to facilitate the adoption of electronic medical records in disability claims.

THE SYSTEM HAS TO BE FIXED

Typically the system works well for disability claimants. There are, however, times when the system seems unjust. Take the case of a young disabled man whose claim was denied by Medicaid because he has not been classified as "disabled" by the Social Security Administration. He's been denied disability coverage and status by Social Security because he's been judged able to "perform some type of work." twice. His doctors disagree. If the Social Security Administration classifies someone as disabled, that person is eligible for two different types of benefits. One is a cash payment that's often just enough to price someone out of eligibility for Medicaid. That benefit, however, does allow a person to qualify for Medicare - after a two-year waiting period. The claimant’s medical condition, however, is so severe he might not survive two years. That is totally unjust.

SOCIAL SECURITY - DISABILITY BEFORE RETIREMENT

Many people have been forced by disabling health conditions to consider early retirement. Some might fear that, short of retirement age, they are not eligible for Social Security Disability Insurance. Not so. Some believe the road to filing a claim is long and complicated and might even require the services of a firm like ours. We specialize in Social Security Disability claims. Unless yours is an unusual case, applying for and receiving disability benefits can be relatively swift and easy. Call the Social Security Administration office nearest you and they will tell you how to file. You will probably start receiving benefits within a few months. In the event your case requires additional attention or you feel your case has been mishandled, our offices are always open to you.

SOCIAL SECURITY DISABILITY

In the event that you were to become disabled, it is possible that you might be entitled to Social Security benefits depending on how long you worked, how much you earned, and your particular circumstances. Usually one has to have worked five out of the past ten years. For those under age 31 who have not worked as long, the requirements may be different. For low-income individuals, benefits may be available whether they have worked or not. If you find that you are unable to work due to disability during the next 12 months, or your condition is expected to lead to death, enlist the help of an attorney to assist in navigating the law concerning Social Security benefits.

HINT: If you are denied Social Security disability benefits at the initial stage, a lawyer can help during reconsideration and hearing stages.

SURVIVORS’ RECOURSE

When a person dies as a result of another person’s negligence or wrongdoing, the surviving members of the victim’s family may sue for “wrongful death.” A wrongful death lawsuit alleges that the decedent was killed as the result of negligence on the part of the defendant. Under wrongful death statutes, the surviving family members or beneficiaries are entitled to monetary damages as a result of the defendant’s conduct. This includes damages for pain and suffering, as well as for reasonable burial expenses. The surviving spouse, child, or parent could also look to the wrongdoer for damages in the amount that would be commensurate with what the deceased would have provided in the way of economic support.

HINT: In some situations, government agencies and employees might be immune from a wrongful death lawsuit.

BREAKING DOWN A CASE

When prospective clients first consider filing a civil lawsuit, they may be most concerned about the worth of their cases. Experienced lawyers, on the other hand, are more interested in reviewing all the relevant information of the case before they venture an opinion. Even then, there is no way to attach a number to any expected recovery without knowing the full extent to which a person has been injured. Full analysis requires a comprehensive medical evaluation of injuries, along with any long-range prognoses. One of the most valuable services that an attorney can perform for prospective clients is to inform them of the proper procedures for evaluating, documenting, and treating injuries sustained in accidents. Every case must be evaluated individually.

HINT: While it may be relatively easy to quantify such compensatory damages as reimbursement for property damage and medical bills, it is more difficult to place a dollar figure on the pain and suffering caused by lingering accident-related injuries.

ENABLING THE DISABLED

If you are disabled and have had your application for Social Security benefits denied, you should know that almost half of all disability appeals are favorably changed during the appeals process. The first level of appeal, known as “consideration,” involves an informal review of your claim at the local Social Security office. The second level consists of a hearing before an administrative law judge, who provides an independent review of the local office’s decision. If necessary, the third appeal goes to the Social Security National Appeals Council in Washington, D.C. The final level of appeal involves filing a lawsuit in federal court. Having an experienced attorney on your side helps ensure that you’ll receive full benefit from the appeals process.

HINT: Appealing a denial of a Social Security disability benefits claim begins with completing a Request for Reconsideration (SSA 561-U2) form.

MEDICAL ADVICE FOR DISABLED SEEKING BENEFITS

If you are seeking Social Security disability benefits, you should maintain an ongoing relationship with your doctor because your disability claim will be evaluated on the basis of your medical records. Even though your past medical records indicate that you are disabled, there must also be current medical records that uphold this evaluation. If you don’t receive regular, ongoing treatment, an examiner/judge will have no basis for evaluating your claims, so it is imperative that you continue to see a doctor even if you lose health insurance coverage. In that case, you should go to a free clinic or other available medical facility. The more you know about the benefits process, the more likely you are to receive them.

HINT: Even if you technically qualify for more than one type of Social Security benefit, you can only collect one.

THIRD-PARTY LAWSUIT

If you were to be injured on the job, workers’ compensation laws are designed to handle your claims. These laws are strict liability, which means that you need not establish fault and/or negligence on the part of your employer in order to collect benefits, as long as the injury/illness was incurred in the course of employment. Because workers’ compensation law imposes strict liability on employers, it is the exclusive remedy for an employee’s injuries/illnesses arising out of the course of employment. However, if a third party (such as a delivery service) were to be responsible for a condition that caused you to slip, you might have a claim against that company. An experienced attorney can help you pursue a third-party lawsuit.

HINT: If a delivery person were to be struck and seriously injured by a drunk driver, on his work route, the delivery person is entitled to collect worker’s compensation benefits and pursue a personal injury claim against the drunk driver and his insurance company.

HOW MUCH TIME DO YOU HAVE?

Every state enforces strict time limits for filing a civil action, known as the “statute of limitations.” With few exceptions, if a lawsuit is not filed within the legally prescribed limit, then a plaintiff will be legally barred from suing. Thus, those who have been injured due to negligence or intentional wrongdoing have good reason to meet with an attorney as soon as possible. Statutes of limitation are generally set by state or federal legislatures and may vary with respect to the type of claim and who is the respondent in the suit. The longest statutes of limitation are generally those regarding the recovery of judgments after a lawsuit, which involve losing parties who fail to pay their judgments.

HINT: The general purpose of statutes of limitation is to make sure that convictions are arrived at on the basis of evidence (physical or eyewitness) that has not deteriorated with time.

INSURANCE THAT WORKS FOR YOU

People who believe they are healthy and strong enough not to need disability insurance should know that studies reveal that a 20-year-old worker has a three in ten chance of becoming disabled before reaching retirement age. Moreover, while a government-sponsored disability program offers protection, workers’ compensation pays benefits only for disabilities caused by on-the-job injuries (most debilitating injuries occur elsewhere). In addition, Social Security disability payments begin only if a person has already been unable to work for five months and the disability is expected to last at least 12 months or result in death. Workers should not only take advantage of disability insurance at work, but they should also purchase a separate supplemental policy that can make up for group-coverage shortfalls.

SOCIAL SECURITY DISABILITY CLAIMS

There have been cases where even severely disabled persons have been denied benefits. Hypothetically, someone files a claim for an individual who, up until that time, has been perfectly able to work. Then, a previously dormant condition suddenly becomes obvious, completely disabling the claimant. Without proper and complete medical documentation, the claimant can easily be denied disability benefits. There is a strong possibility that because of a lack of medical history, the claim would probably have to go to appeal. In that case, it would be wise to seek legal help in filing the initial claim and the subsequent appeal if and when it becomes necessary.

DEFENDANT’S RESPONSE

Have you ever asked yourself what you would do if you were to find yourself on the receiving end of a civil complaint? If not, you should know that defendants in civil suits typically have no more than 20 days after receiving the complaint to file a response. Unless the plaintiff’s lawyer provides extra time to respond (“extension of time”), defendants should proceed quickly. Failure to file a response within the allotted time can result in serious consequences such as having the court deem the plaintiff as winner by default. The simplest response to a complaint is called an “answer,” which denies the most important factual allegations and legal theories of the complaint.

HINT: In their answers to complaints, defendants in civil cases must respond to every claim the plaintiff makes.

PRODUCT LIABILITY LAW

Many years ago, the operative phrase for those purchasing goods was “caveat emptor” (buyer beware). It was the purchaser’s responsibility to check the safety of the product before buying. A consumer could only sue a manufacturer if he or she could prove either negligence or that the product did not live up to its warranties. Today, it is not reasonable to expect that consumers should be able to check products such as electronic goods for defects. Thus, the law has evolved to the point where the consumer is protected against manufacturer negligence by “product liability law,” which allows a consumer to recover damages from a manufacturer or seller on the basis of strict liability, negligence, and breach of warranty.

HINT: Strict product liability means that the manufacturer of a product is liable for selling any defective product that is deemed “unreasonably dangerous” and results in injury to the buyer or to anyone who uses it.

INJURIOUS FALLS

While we may find the classic banana-peel pratfall performed on stage to be comical, there’s nothing funny about a real-life “slip-and-fall” accident. These mishaps can be more than just minor incidents for those who land on hard surfaces and suffer fractures, sprains, and strains. Once these injuries are medically addressed, a consultation with an attorney may be warranted to explore the legal concept of “premises liability.” This legal theory holds property owners liable for accidents and injuries that occur on that property. The fundamental question surrounding a slip-and-fall accident involves whether the conditions were unreasonably dangerous. It may also have to be determined what duty or responsibility a property owner owes to another on the basis of that person’s status.

HINT: Under premises liability law, it is necessary to determine if the plaintiff was an “invitee,” a “licensee,” or a “trespasser.”

WHAT IS YOUR CASE WORTH?

If you have suffered injury due to the (in)action(s) of someone else, it is in your best interests to rebuff any offer to settle the claim before consulting with a lawyer. This advice is predicated on the fact that you may not be aware of the full extent of your injuries or what therapy you might eventually need. Nor are you likely to fully appreciate the long-term impact of your injury. You may also be compensated for the “pain and suffering” that you experience as a result of your injury. Moreover, you cannot know with any certainty how much income you might stand to lose. It’s never a good idea to begin negotiating a settlement without knowing all the facts.

HINT: The extent to which a person is at fault is the primary factor determining how much an insurance company is willing to pay the injured party.

CONTESTING YOUR SOCIAL SECURITY INCOME PAYMENT

If you disagree with any decision the Social Security Administration makes about your Supplemental Security Income (SSI) payment, you have the right to ask them to take another look at your case. Whenever you receive a letter about your SSI, it must tell you what to do if you disagree. You have the right to have an attorney or someone else represent you in this matter, but this does not mean that you must have an attorney or other representation. However, there are rules about who can represent you and what your representative can do. In any event, to substantiate your disagreement, be sure to have copies of all your files and medical records.

WORKPLACE ACCIDENTS MIGHT QUALIFY FOR BENEFITS

If you have been hurt at work, your accident may become a workers’ compensation matter. Resolving a work injury involves knowing the law on personal injury as well as becoming familiar with governmental benefits that might be available and determining if your work injury is covered under workers’ compensation law. The kind of work you do can make a big difference when you have been injured on the job. If professional help is required, we are up to the challenge. We can help you decide what actions are right for you after an on-the-job injury. We can also guide you through the steps of filing a claim or appealing a claim that has been denied.

WIN-WIN SITUATION

Lawyers usually take on personal injury cases on a “contingent fee” basis, which means that the attorney handling the case receives a percentage of any money recovered on the client’s behalf. So when the attorney wins, the client wins. Thus, attorneys have every incentive to win their clients’ cases. Generally, if no money is recovered, the client is not responsible for any attorney fees. Contingent fee arrangements are most beneficial to those injured parties who could not otherwise afford an attorney to protect their legal interests. Therefore, those injured as a result of another person’s negligence need not feel that they are not able to file a suit in civil court to recover damages for the injuries suffered.

HINT: Other cases that lawyers will commonly take on a contingency fee are those involving employment discrimination, sexual harassment, and malpractice.

STEPPING INTO THE INSURED’S SHOES

If you were injured due to another party’s negligence, review your insurance coverage even if you plan to sue for damages. If the other party is responsible for your injuries and you expect to win a lawsuit and collect damages, you may still collect on your own insurance policy. For instance, if you were in a car crash where the other party was at fault, your insurer has an obligation to reimburse you based on any coverage you had in place for medical bills and auto repairs. Some policies then have a “right of subrogation” clause, which entitles them to recoup some or all that they paid out on your behalf should you later collect a settlement or award from the responsible party.

HINT: A “waiver of subrogation” is an agreement between two parties in which one party agrees to waive subrogation rights against another in the event of a loss.

HOW SOCIAL SECURITY DETERMINES DISABILITY

The Social Security Administration uses a five-step process to determine disability, which includes answers to each of the following: Are you working and averaging less than $1,000 per month? Is your condition severe enough to prohibit you from working? (If it does interfere with basic work-related activities, they then proceed to the next step.) Do you meet the medical conditions that qualify? (If your condition is not on the list, they may have to decide if it is of equal severity to a medical condition that is on the list.) Do you qualify if your condition is severe but not as severe as a condition on the list? (SSA will determine if it interferes with your ability to do the work you did before your claim.) And finally, if you cannot do the work you did previously, are you able to adjust to other types of work?

FAMILY MEMBERS MAY QUALIFY UNDER YOUR BENEFITS

We have been asked many times whether family members qualify for disability benefits on the record of another individual. The answer is yes. Each family member may be eligible for a monthly benefit of up to 50 percent of the first individual’s disability rate. However, there is a limit to the amount that can be paid to family members. Although the number varies, generally, the total amount a family can receive runs from 50 to 80 percent of the disability benefit. If the sum of the benefits payable on an individual account is greater than the family limit, benefits to the family members will be reduced proportionately. Benefits paid to the individual will not be affected. If there is a divorced spouse who qualifies for benefits, it will not affect the amount of benefits the individual or the family may receive.

WHO WILL DECIDE YOUR CASE?

Civil cases involving personal injury, breach of contract, professional malpractice, libel, slander, etc., call for a jury trial. When selecting the jury, lawyers from both sides have the right to review prospective jurors in a questioning process (“voir dire”), with the goal of selecting an impartial jury. During this process, jurors may be challenged and excused in one of two ways: A challenge “for cause” asks the judge to excuse a prospective juror on the basis that a legal impediment to that person’s service as a juror exists. For instance, something in the person’s answers to questions may indicate that he or she is not fair and impartial. A “peremptory” challenge can be exercised for any reason whatsoever.

HINT: There is no limit to the amount of challenges for cause, while the number of peremptory challenges is limited.

YOU, THE DEFENDANT

Defendants in personal injury cases should know there are four elements to consider: duty of care, breach of duty, causation, and damages. In most civil cases, it is the plaintiff’s burden to convince a judge or jury that the facts are true “by a preponderance of the evidence,” which means that the plaintiff must establish that the chances are better than 50 percent that his or her facts are true. One way a defendant’s lawyer might argue that the plaintiff’s case fails to establish one of the essential elements is to challenge the causation claim. If the plaintiff’s case does not show a clear link between the defendant’s actions and the plaintiff’s injuries, the defendant will not be found liable.

HINT: A personal injury complaint is the first official document in a civil case, laying out in very broad detail what the plaintiff claims the defendant did.

DO YOU NEED LEGAL REPRESENTATION FOR DISABILITY?

The answer is no. No one is required to have representation when applying for Social Security Disability (SSD), or Social Security Income (SSI). In fact, we might even advise you not to look for representation until your claim has been denied. Unfortunately, many claims are improperly decided or decided without crucial records having been considered, or have important deadlines missed, often because no one who was knowledgeable about disability claims was working to assist you with your claim. For these reasons and others, disability representation from the very start is a good idea for many people.

WAITING FOR SSI BENEFITS

There is no set schedule regarding the length of time it takes the Social Security Administration to process Social Security Income (SSI) and Social Security Disability (SSD) benefits. This is because Social Security Disability benefits are actually processed in payment processing centers, not at the Social Security office where the cases are resolved. Generally, after a claim for SSD or SSI benefits has been approved, you can expect to begin receiving monthly benefits within 60 days, although waiting times of several months have been experienced. However, there are many instances of benefits being direct deposited into bank accounts even before claimants have received notices that benefits have been awarded.

PSYCHOLOGICAL INJURY

While plaintiffs in personal injury cases may easily point to their physical injuries, psychological injury is more difficult to prove. Judges, juries, and insurance companies tend to view psychological injury claims with suspicion because they feel that the claims are either invalid or exaggerated. This does not mean that psychological injuries are not real and cannot be proven. For instance, “posttraumatic stress disorder” (PTSD) is a provable phenomenon that manifests itself in depression, irrational fears, and an inability to concentrate. PTSD can affect those who personally experience trauma or witness a catastrophic event. Claims involving this psychological problem and others can and should be pursued. If you have suffered psychological harm, you may have the basis for a personal injury case.

HINT: Symptoms of “posttraumatic stress disorder” (PTSD) include anger, irritability, mood swings, shock, confusion, difficulty concentrating, anxiety, fear, sadness, hopelessness, guilt, shame, and reliving the event that caused these symptoms.

COMPENSATING INJURED WORKERS

While workers’ compensation laws cover only work-related injury and illness, the injury or illness need not necessarily have occurred in the workplace. This means that, if a worker were to suffer an injury or illness while traveling on business, going on a work-related errand, or participating in a work-related function, he or she would be covered. With regard to the timing of the injury or illness, it can occur suddenly (as would be the case with a fall) or can happen over time (such as developing a repetitive stress injury). Workers may also seek compensation for conditions that develop as a result of exposure to workplace chemicals/radiation/air pollution or illnesses that gradually develop as a result of working conditions.

QUESTIONS ABOUT DISABILITY BENEFITS

Last week we attempted to answer some of the more pressing questions asked by clients applying for disability benefits. Here are some others we are frequently asked: Should I give up if I apply for Social Security disability benefits and they turn me down? We recommend requesting a review. While there is only a likelihood of a 35 percent chance of winning the first review of your case, those who request and get a hearing on their disability claim will win approximately 60 percent of the time. It certainly helps when your doctor agrees that you are disabled, but it is not essential. If you are injured on the job and out of work for an extended period of time, and you are receiving workers’ compensation, do you have to wait for it to end before receiving Social Security disability benefits? Social Security benefits should be applied for immediately to avoid an extended period without income.

ARE DISABILITY BACK PAYMENTS RECEIVED AT ONE TIME?

You may be asking the above question if your claim has been approved and you are entitled to Social Security Disability (SSD) or Social Security Income (SSI) benefits. The answer is that it depends on the amount you are entitled to receive and whether your disability benefits will be drawn from SSD or SSI funds. If you are entitled to SSD benefits, you may receive your back payment as a single lump sum. If you are owed apast-due SSI benefit amount, or if the back payment is less than $6,000, it will be issued in one payment. If the SSI back payment exceeds $6,000, it will most likely be disbursed in two or three installments.

LAW OF ATTRACTION

The attractive nuisance doctrine holds that landowners may be liable for injuries to children trespassing on their land if the injury is caused by an object on the land that is likely to attract children. Homeowners have an obligation to place fences and gates around backyard swimming pools, as well as warn and protect against other potential dangers. If the property owner does not take the proper measures to ensure the safety of children from an attractive condition, and a child should suffer an injury due to the condition, the property owner may be held liable if it can be shown that the property owner knew that the condition was both alluring and dangerous.

HINT: Many courts require that an attractive nuisance be man-made, and many require that landowners “maintain” the nuisance in order to be liable. Therefore, while pools may qualify under this definition, ponds and lakes may not.

THE “BUT FOR” TEST

In order for plaintiffs’ personal-injury suits to be valid, they must establish that the defendant owed them a duty of care and breached that duty. Plaintiffs must also show that as a consequence of that breached duty, they suffered harm, and the burden of proof does not stop there. In addition, the test of causation requires the defendant to show that the loss or damage sustained by the claimant was not too “remote.” The claimant must prove that harm would not have occurred “but for” the negligence of the defendant. If a plaintiff’s harm could not reasonably be foreseen to be a consequence of the plaintiff’s actions, the law limits the amount of compensatory damages available for the wrong.

HINT: In some cases, it may be sufficient for a plaintiff in a tort case to show that the defendant’s breach of duty made the risk of injury more probable.

PROFESSIONAL HELP WITH DISABILITY CLAIMS

The very illness or injury that prevents you from working and entitles you to Social Security disability benefits may also preclude you from pursuing your claim adequately. If you are in no shape to go through the claims process on your own, it would be advisable to hire a lawyer well versed in such matters. Filing a claim is a complex process involving gathering documentation and proper case presentation. To be eligible for the Social Security disability benefit, a person must be unable to work for 12 months at any job for which he or she could qualify. The claimant must go through five layers of consideration, from a state agency through the U.S. District Court.

HINT: More than half of Social Security disability claims are denied at the first two levels of consideration, which sets the stage for appeals.

SOCIAL SECURITY DISABILITY

In the event that you were to become disabled, it is possible that you might be entitled to Social Security benefits depending on how long you worked, how much you earned, and your particular circumstances. Usually one has to have worked five out of the past ten years. For those under age 31 who have not worked as long, the requirements may be different. For low-income individuals, benefits may be available whether they have worked or not. If you find that you are unable to work due to disability during the next 12 months, or your condition is expected to lead to death, enlist the help of an attorney to assist in navigating the law concerning Social Security benefits.

HINT: If you are denied Social Security disability benefits at the initial stage, a lawyer can help during reconsideration and hearing stages.

WHEN PETS BITE

In some states, the owner of an animal can be held liable for the injuries it inflicts as long as the owner knew (or had reason to know) that the animal had “dangerous propensities.” Thus, those who have been injured by an animal may base their claims of liability on the animal’s past behavior when providing evidence that the owner should have known of the danger presented by his or her pet. However, it may be difficult to determine whether an owner knew of an animal’s dangerous inclinations. In other states, strict liability laws may hold a dog owner legally responsible for an animal bite regardless of whether the owner did anything wrong with respect to protecting others from attack.

HINT: If an animal owner warned others that the animal was dangerous and a person ignored these warnings, it may be difficult for the injured party to successfully sue the owner.

COLLECTING THE JUDGMENT

After a plaintiff wins a civil case in court, he or she may be faced with the possibility that the losing party (debtor) may either refuse the court order or cannot afford to pay the amount of the judgment. Plaintiffs should take this matter into consideration when deciding to pursue a personal-injury case. As a practical matter, possibilities for the recovery of damages are limited if the defendant is not insured. Even if a plaintiff were to obtain a substantial verdict against an uninsured defendant of limited means, it may not be worth the effort. The reality of many civil cases is that damages are limited to insurance proceeds, one factor attorneys are sure to discuss with potential clients.

HINT: Those holding a judgment against another individual can garnish that individual’s wages to collect the judgment.

DISABILITY BENEFITS FOR CHILDREN

Children are eligible for Supplemental Security Income (SSI) benefits. To apply, you will need to complete an Application for SSI and a Child Disability Report. The report collects information about the child’s disabling condition and how it affects the child’s ability to function. A Child Disability Starter Kit should also be reviewed. This kit answers common questions about applying for SSI benefits for children and includes a worksheet that will help you gather the information needed. Social Security will then inform you whether the income and resources of the parents and the child are within the allowed limits to collect benefits. They will also indicate how to start the application process.

HOW IMPORTANT IS YOUR DOCTOR’S DIAGNOSIS?

Your doctor’s opinion will mean a great deal in the success of your application for benefits since claims can be denied on the basis of the doctor’s statement. The language the doctor uses could be intended for the medical field and might not meet the criteria demanded by the SSA’s application evaluators. An applicant must educate the doctor on the necessary specifics to be included with the medical record to ensure approval of the application. It is this part of the process in which legal expertise and experience are most often required to successfully secure an SSD/SSI award. Our office can discuss the application process with your doctor to avoid or appeal a denial.

CRIMINAL ACT, CIVIL SUIT

Even though sexual assault can give rise to criminal prosecution that results in incarceration, victims may want to file civil lawsuits for compensation for the harm they have suffered. Because there is no cause of action called “sexual assault,” the plaintiff’s attorney must find another legal theory under which the perpetrator can be held liable, such as assault and battery or intentional infliction of emotional distress. Once the legal theory of the case is established, the plaintiff can seek damages for the physical and emotional harm that was suffered and continues to be endured as a result of the abuse. However, damages may be difficult to collect because most liability insurance policies usually exclude coverage for intentional acts.

HINT: A legal rule known as “collateral estoppel” may entitle the plaintiff in a civil lawsuit to bring in evidence that a jury in a criminal case has already found the defendant guilty of committing the crime.

UTTER DISREGARD FOR OTHERS’ SAFETY

While most civil lawsuits involve either negligence or intentional misconduct, there is a middle ground that may be termed “willful and wanton,” otherwise known as “reckless” conduct. This behavior is generally defined as unreasonable conduct committed under circumstances in which the person knew that his or her actions created an unreasonable risk of physical harm and that the probability was relatively high that harm would occur. Thus, the person who commits the willful and wanton tort is aware of the danger but is indifferent to it. In a sense, reckless conduct has some attributes of both negligence and intentional torts. Those who suffer injury as a consequence are advised to consult with an attorney.

HINT: Driving while drunk, drag racing in a residential area, and having unprotected sex while knowingly having a sexually transmitted disease are examples of reckless behaviors that could harm others.

HOW MANY TYPES OF SOCIAL SECURITY DISABIITY BENEFITS ARE THERE?

There are several types of Social Security disability benefits. Disability Insurance Benefits can be the most important. It goes to individuals who have worked in recent years and who are now disabled. Disabled Widows and Widowers Benefits are paid to those individuals who are at least 50 years old and who have become disabled after the death of their husband or wife. The late spouse must have worked enough quarters under Social Security to be insured. Disabled Adult Child Benefits go to the children of persons who are deceased or who are drawing Social Security disability or retirement benefits. The child must have become disabled before age 22. For Disability Insurance Benefits, Disabled Widow's or Widower's Benefits and For Disability Insurance benefits and Disabled Adult Child benefits, it does not matter whether the disabled individual is rich or poor. Benefits are paid based upon a Social Security earnings record.

COMMON MISTAKES WHEN APPLYING FOR DISABILITY BENEFITS

Dealing with the Social Security Administration (SSA) can sometimes be an extremely frustrating and time-consuming experience. If one is unfamiliar with the process, it can be very difficult and lead to a number of questions. Employees of the SSA will not necessarily help in alleviating your confusion: They sometimes add to it! In addition, answers from the SSA are occasionally incorrect, vague or confusing. Many SSA employees do not have the qualifications necessary to give proper assistance. Answers given by an SSA employee that assess a disabling condition, interpret Social Security law, or evaluate statements that might be made on a SSD or SSI application could be misleading. A high level of experience and legal expertise is required to overcome the many obstacles denying compensation that is rightfully justified as a result of a disability. Many Social Security experts agree that a consultation with an expert SSD/SSI attorney is recommended before an initial application is made.

INJURED BY A DEFECTIVE PRODUCT?

If a consumer suffers injury due to a defective or unexpectedly dangerous product, the legal doctrine of “strict liability” enables the injured party to recover compensation from the manufacturer or seller of the product, whether or not the maker or seller of the product was actually negligent. Under this doctrine, the plaintiff is not required to show that the manufacturer or seller was actually negligent. Strict liability operates against a non-manufacturer who rented or sold a product, but only if it is in the business of regularly renting or selling those particular kinds of products. Thus, strict liability might not apply if a consumer purchased a product at a place that does not carry the item on a regular basis.

HINT: Would-be plaintiffs may not be able to claim strict liability if they knew about the defect but continued to use the product.

UNDUE INFLUENCE

There are a variety of confidential relationships that may give rise to “undue influence,” in which one party takes advantage of another by reason of a superior position in a close relationship. In such cases, the person occupying the superior position involving trust should be acting in the interest of the other person. Hence, any contract that is, in reality, for the benefit of the person occupying the trusted superior position and not the other person is presumed to be tainted with undue influence and therefore voidable. For example, if a person were convinced to change his or her will solely on the basis of influence of a person who would benefit from the change, the action might be suspect.

HNT: When a trusted person exerts undue influence on an elderly individual by disrupting his or her natural impulse to provide for family members and, instead, talks him or her into leaving assets to the manipulator, it is considered a form of elderly abuse.