Questions on Law- Other types of actions

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.


PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to other types of actions that have not already been discussed.

OTHER TYPES OF ACTIONS

The following are other types of personal injury actions that can be brought if the one common question is answered: Were you injured or caused damages as the result of someone else's negligence?

PRODUCTS LIABILITY: If you are injured from using a consumer product that was defectively or dangerously designed or constructed by the manufactured, and reached you, the consumer, unchanged from the time it left the manufacturing warehouse, you are entitled to bring a claim for any injuries you sustained, as long as you used the product in a safe and foreseeable manner. Common examples of these include tools such as power drills and saws, guns, or even toys. One key piece of advice is to watch out for consumer recalls by the Food and Drug Administration (FDA), because that can be a sign that a product that you may have purchased is defective and dangerous, and could cause injury. Once again, keep in mind that you must have used the product in a safe and foreseeable manner prior to being injured in order to be able to recover anything. So, if you were using a power saw to saw a piece of wood and you are injured, you may be able to recover. However, if you were using the same power saw with your friend to re-enact a scene from The Texas Chainsaw Massacre, you will likely not be able to recover.

AIR, TRAIN & BOAT ACCIDENTS: These are of course similar to car accidents, and because they are modes of transportation like cars, you can be just as easily injured in them as the result of someone else's negligence. Common examples of course include plane, train and boat crashes, and injuries sustained while a passenger on any of these as the result of the operator's negligence (e.g., if the pilot on a plane says you can move about and take off your seatbelt, even though the pilot knows there is severe turbulence, and in relying on the pilot, you fall and injure yourself on the plane as a result of turbulence.

PHARMACEUTICAL ACCIDENTS: These generally come under the category of healthcare malpractice. If a pharmacist gives you the wrong prescription medication, gives you the wrong dosage, or writes incorrect instructions on how to take the medication on the bottle, and you are injured as a result, you may be able to bring a claim for such negligence or malpractice. Remember, a pharmacist is a professional like a doctor, and is deemed to have the requisite amount of knowledge, education, and experience to know what he/she is giving you to take, and that you are going to reasonably rely upon the pharmacist's expertise when you pick up and take your medication as directed. In some cases, the doctor who prescribed the medicine may also be liable if he/she prescribed the wrong medicine or gave the wrong dosage.

TRACTOR-TRAILER ACCIDENTS: Again, these were discussed somewhat in the car accident posting, but the point to emphasize once again is that drivers of big tractor-trailers are "professional" drivers with special licenses to operate these big, complex vehicles, and they are held to a higher standard of care than ordinary drivers, and an additional set of federal and state laws and regulations concerning the operation of these vehicles. Many times, if you are involved in an accident with one of these vehicles, the driver of the vehicle will be cited for violations of these federal and state laws (for example, the drivers are limited in how long they can drive a load before stopping and taking a rest on a highway rest area or other place- remember, they drive big loads for long periods of time). Plus, if you are unfortunate enough to be involved in a car accident with one of these huge vehicles, the odds are your injuries will be much more severe and/or fatal.

NURSING HOME ACCIDENTS: Again, I discussed this somewhat in the healthcare malpractice post, but it warrants reiteration. We love our elders and want to ensure they are properly cared for, especially when it becomes too much for us to handle on our own. When we make the conscious but difficult and heart-wrenching decision to place our loved ones in an elderly care facility, for any length of time, we are putting our faith and reliance on the professionals employed by the facility to exercise that greater degree of skill and care to look after and care for our loved ones and ensure their health, safety and well-being. When our loved ones are injured while in the care of a nursing home employee or facility, as a result of negligence, they are entitled to recover for the damages, which are usually significant since injuries in older persons are usually more severe. If one of our elders is fatally injured as a result of such negligence, we have the right to pursue a wrongful death and/or survival action on their behalf, as discussed in a previous post.

ASSAULT/POLICE BRUTALITY: Sometimes we are intentionally injured at the hands of someone else. Generally, when this happens, we don't think of a civil lawsuit for injuries and damages. We think of pressing criminal charges. Well, that's usually the first step. If someone injures us intentionally, we want them to face the appropriate criminal penalties first. Sometimes someone picks a fight with us unintentionally, sometimes they use a weapon on us. Then of course there is the case when we are under arrest or interrogated by the police and the police use excessive, unnecessary force on us, with or without a weapon. Make no mistake, this is illegal and could subject the police to criminal penalties, as well as employment penalties (that is, they can lose their job for using inappropriate force on a suspect). In these types of cases, liability is usually not an issue because the act was done intentionally. If there are criminal penalties imposed (that is, if the assailant either pleads guilty or is found guilty in criminal court), then that can be direct evidence or proof of liability in a case for civil damages. However, many people choose not to pursue a case for civil damages if the assailant receives no criminal penalties (is found not guilty, or isn't even charged). The most important thing to remember is that the burden of proof in a criminal case is much more difficult to meet than in a civil case- if a prosecutor does not meet that burden of proof, he/she may choose not to pursue criminal charges, or the suspect may be found not guilty. But, because the burden of proof is easier to establish in civil cases, then you should not be deterred from making a claim for civil charges against the person who injured you.

DOG BITES/ANIMAL ATTACKS: This one basically speaks for itself, but the bottom line is that an owner of an animal is deemed to be responsible for the animal's actions, and if you are attacked by the animal, unprovoked, you have a right to bring a claim against the owner for any injuries or damages you sustain. The most common occurrence of course is a dog bite or attack, particularly if the type of dog is illegal to own as a pet (for example, pit bulls are often illegal to own as pets in various states and counties).

SWIMMING/DROWNING ACCIDENTS: While these generally involve young children, the fact is that these types of accidents are usually caused by some form of negligence (be it an improperly constructed pool, an incompetent or inattentive life guard, or a mislabeled section of a pool), and as a result, can affect older people as well. While many drownings each year are fatal, many are also non-fatal but cause permanent severe injuries, including brain damage and other conditions. Of course, many people tend to think of the "swim at your own risk" signs as a way for pool owners, managers, or lifeguards to avoid being liable for drowning accidents or injuries. But, that by itself, may not be enough to avoid liability. Each case must be determined on an individual basis.

TERRORISM AND DISASTERS: So what do we think of most commonly when we hear those words? The 9/11 attacks, Hurricane Katrina, Tsunamis, Earthquakes. Yes, many of the victims or victims' families were entitled to and did in fact bring claims for damages for the injuries they sustained. If you are the victim of any of these, whether in your home state, or away, you may be entitled to make such a claim.



Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.

Questions on Law- Slip and Fall Accidents

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.

PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to slip and fall accidents.

SLIPS & FALLS

It's funny when it happens in the movies or on television. Sometimes we even laugh when we see it happen in real life, even when we try not to do so. But the truth is, in real life it's usually not funny at all. Slips and falls can cause very serious injuries, just like car accidents, work accidents, or medical malpractice. The good news is that I won't have to repeat anything about the injuries or damages, or choosing an attorney, because you can read about those in the car accident or healthcare malpractice posts. The only thing I will discuss in this post is how liability is determined in these types of cases.

LIABILITY OF A THIRD PARTY

There are many instances when a slip and fall accident is the result of someone else's negligence Generally, the question to answer is was there a dangerous or defective condition created or caused by another person or entity that caused the fall. For example, if you slip in a puddle of water that was on the ground as a result of a leak from pipes, and the owner or manager of the building knew or should have known about the leaky pipes and did nothing about it, then it can be argued that he/she caused the puddlbe which caused the person to fall, which makes him/her liable in negligence.

The main pitfall in slip and fall cases is that many times the person who slips and falls is partially or fully to blame as well, and in many cases the person who slips and falls may not be able to recover damages, or may be limited in what they can recover. In the example above, even if the owner/manager of the building created or caused the puddle of water, if the person who slips and falls clearly sees the puddle and chooses to try to walk through it rather than around it, that person contributed to their fall and injuries, and in some jurisdictions (including Maryland), would be forbidden from bringing a claim for negligence.

Slip and fall cases can be difficult to prove and damages are not always easy to recover- but that doesn't mean you may not be entitled to them, and an experienced attorney can help you evaluate your potential case for you.


Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.

Questions on Law- Social Security Disability

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.



PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to Social Security Disability.


SOCIAL SECURITY (SSDI AND SSI)

We pay into the system with every paycheck we get. They take out taxes, they take out retirement benefits and they take out social security. So, the question is when do we get it all (or some of it) back? We know the answer to that question for the first two, but what about social security? “Oh, I’m not old enough to start receiving social security,” or “I haven’t worked long enough to collect it,” you may say. BUT, you probably are not aware that you could be entitled to begin collecting social security sooner than you think!

This post will provide you with the information you need to determine if you are eligible now, rather than later. Although this information is available to you on the Social Security Administration website (www.ssa.gov), if you ever visit that site, you will notice it is not necessarily user friendly, even for attorneys. That is why I’m doing this post, to highlight the relevant information from that website, and explain it better for you. Like my workers’ compensation post, you will see that the social security process is also governed and very strictly enforced by federal law, so it works the same no matter what state you live.


Social Security Disability (SSDI) v. Supplemental Security Income (SSI)

While you believe these benefits are one and the same, the fact is that they are somewhat different. You become medically qualified for them exactly the same (which I will discuss below), but based on your financial and work background, you will only qualify for one and not the other.

SSDI benefits are available when you've worked long enough and paid enough into the system (although it varies, generally, you have to have worked at least 5 of the 10 years directly before you first became disabled). When you receive SSDI benefits, you are also eligible for medical assistance, although that does not occur until two years after you receive your benefits. SSI benefits, on the other hand, are for people who are disabled but either have not worked at all, have worked very little, haven't worked in a long time, or do not currently have more than $2,000 in resources (assets such as cash, real property, etc.). When an application is made for social security benefits, the Social Security Administration (SSA) will determine which type of benefit you are entitled to receive, if you are medically qualified, that is.


Medical Eligibility to Receive Benefits

Once SSA determines which type of benefit (SSDI or SSI) you are entitled to receive, it must then be determined whether you are medically qualified to receive benefits- that is, whether you are medically "disabled." How does SSA do so? This is a 5-step process, which I will explain.

Step 1: First it must be determined that you are not working or performing a substantial gainful activity (SGA). If you are working, generally you are not entitled to Social Security benefits. (Although you are entitled to earn partial wages up to $810.00 per month and still may be eligible to receive Social Security). As long as you are not working, then the analysis proceeds to Step 2.

Step 2: Second, it must be determined whether you have a severe medical or psychological impairment which prevents you from working or performing an SGA.

Step 3: If you have a severe impairment, then it will be determined whether your impairment meets the criteria or description of one of many of the SSA's Medical Listings. These listings basically contain various medical and psychological injuries/conditions with specific requirements which must be strictly met. If you meet one of these listings, then you are automatically considered disabled by definition and the analysis goes no further. If you do not meet one of these criteria, the analysis continues to step 4.

Step 4: At this step, it is determined whether you are capable of performing your past relevant work (if you have any). This is generally determined by looking at the physical demand of your past relevant work (if you have any), and determining your current physical work capacity, or your residual functional capacity (RFC). There are 5 levels of RFC from least to most physical demands- Sedentary (basically desk or office work with little or no physical component), Light duty, Medium Duty, Heavy Duty, and Very Heavy Duty. Generally, the lower your RFC level, the more difficult it is to do your prior work. Your treating or evaluating medical doctors, and other professionals, such as vocational experts, will render opinions as to your RFC level, but ultimately SSA will make the final decision based on all of your medical documentation regarding your injuries/illnesses/conditions, and how they prevent you from working and/or performing everyday activities.

STEP 5: The final step in the analysis is to determine if you are capable of performing any other substantial work (SGA) based on your RFC level, your age, education, and prior work experience. Generally, the theory is that the older you are, the less education you have, and the less transferrable work skills you have, the harder it is for you to find work. Add to that your physical or psychological limitations, and you may be found to be disabled. There are federal regulations, generally known as GRID RULES, which can determine whether you will be found disabled based on your age, education, work experience, and RFC level.

CLAIM PROCESS

So you believe you are entitled to benefits, what do you do now? The first step is to file the initial application for benefits. This may be accompanied by medical documentation, which you can submit, or which SSA will request. The most important thing to note is this: DO NOT be discouraged if you are initially denied on your first application. This is very very common, and happens in almost all cases.

After the initial denial, you have 60 days to file a Request for Reconsideration, which is basically a request to have the application reviewed a second time, and to submit new medical documentation or other bases for your claim. Your attorney may get involved at this stage, where you will file a Disability Report form to detail your medical or psychological impairments, and your limitations and restrictions as a result of your conditions/injuries. Once again, DO NOT be discouraged if you are again denied at this stage of the application. This is also very common, and happens often.

After the second denial, you have another 60 days to file a Request for a Hearing before an Administrative Law Judge (ALJ) who will hear your case, allowing testimony and submitting of medical documentation. The ALJ will listen to and decide your case without regard to the prior denials. If your attorney has not gotten involved prior to now, then your attorney will definitely get involved at this stage as the process will get more involved and overwhelming. With an experienced attorney at your side, you will have a much greater chance for receiving benefits. Your attorney will not only prepare your testimony and the medical documentation, but he/she will also make sure your doctor's reports contain the appropriate findings to help support your claim for disability. Many cases are won or lost on the strength of your medical records and your Disability Report. The hearings are very informal and unlike court proceedings, so you will feel much more relaxed and at ease.

If you are still denied by the ALJ, you will still have opportunities to appeal to the Social Security Appeals Council and then possibly to the United States District Court. Your attorney can explain this to you better if you need to take your claim that far.

AWARD OF BENEFITS/ATTORNEYS

When you are awarded benefits, you will likely be entitled to past due benefits, or back benefits, from some time before they were awarded to you. Because many social security claims can take years before you are awarded benefits (yes I said years), you may have been entitled to benefits long before they are actually awarded. For SSDI claims, you are entitled to back benefits either 5 months from the date you are actually found to have been first disabled, or 12 months prior to your first application date, whichever date is later. For SSI claims, you are only entitled to benefits from the date of your first application, no earlier.

As for attorneys, your attorney will only collect a fee if you are awarded past due benefits. If you are awarded past due benefits, your attorney will be entitled to collect 25% of your past due benefits, up to a maximum of $5,300.00, and this fee cannot be changed because it is set by Federal Law. If you do not collect benefits, or if you are not entitled to any past due benefits, you will not owe any fees to your attorney.

The most important thing to keep in mind is that you are entitled to social security benefits if you are disabled from work, regardless of how it happened. So, if you believe you are entitled, take action now.

Regardless of content, the information contained in this blog is intended for educational purposes only and shall not operate to bind the writer or any associated or referenced business, law firm, or other entity to any order or other contract unless pursuant to explicit written agreement or government initiative expressly permitting the use of such blog for such purpose. The reader hereby expressly agrees to save and hold harmless from liability the writer or any associated or referenced business, law firm, or other entity for the information provided in this blog, and further acknowledges that the information contained in this blog does not constitute legal advice or counsel, and shall merely be construed as informational, and not binding advice. The reader further acknowledges and agrees that this information does not serve to create a lawyer-client or other legal relationship between the reader and the writer or any associated or referenced business, law firm, or other entity.