Just a few months ago, the Administration enacted Social Security Rule
11-1p.  Which says that if a Social Security Claimant has an application on
appeal, they may not file a new application until they terminate the prior
appeal.

Previously, if a claimant was denied and had appealed the determination of
the Administrative Law Judge to the Appeals Council in Virginia, they had
the option of starting over and providing updated medical records to see if
they could qualify for current benefits, based upon the new records, and
continue to pursue their retro benefits on the older denied application.

Appeals to the Appeals Council can take several years for action/decisions
to be made.  Under the old system there were often situations where new
medical, perhaps an MRI, or Brain Scan, or other new medical would shed
light on why the claimant was so impaired.  This new medical could often
allow a favorable determination.  Thus, the claimant could begin to receive
some benefit and have the means to support themselves while waiting to see
if the appeal for retro benefits was eventually to be approved.

Now, if a claimant has appealed the decision, they may not file a new
application unless they dismiss the pending appeal.  Thus, the claimant must
elect to give up the old benefits entirely if they want Social Security to
consider any new medical and application.  This is a huge burden to the
claimants and is a serious loss of rights.  Many claimants are tempted to
give up valuable rights to seek all their benefits just so they can
potentially access current benefits to live on.

The Senate-approved measure would drastically change Washington State’s workers’ compensation system by establishing an option for lump-sum settlements for claimants who are looking at long-term disability (pension benefits).  Under the Senate version of the SB 5566, any worker who is eligible for vocational retraining can elect to decline vocational services and instead receive a one-time disability settlement.  The amount of the settlement would be equal to one-third of the value of the pension annuity calculated as though the worker had been found totally and permanently disabled.  The settlement would be paid in a lump sum, and the worker’s claim would be closed.  A settlement recipient can reopen his or her claim for medical treatment only upon a showing of worsening medical conditions.

The Washington State Labor Council will work to defeat SB 5677 in the House.  Why? Under SB 5566, unscrupulous employers would be able to pressure injured workers into taking a smaller, one-time payment, instead of the life-time compensation to which they are currently entitled.  The average injured worker facing long-term disability is extremely vulnerable—they have lost their job, perhaps their career and livelihood, have lost function or range of motion, often are in pain, are suffering from a loss of esteem and identity, and are facing a myriad of personal and family stress points.  This does not put the injured worker in an enviable position to prevail in a dispute with their employer or more likely the attorneys of their employer’s third party administrator or Retro Association.

Tell your legislator to vote NO on SB 5566 to protect our injured workers.

Those persons injured in an automobile crash in Washington have yet one more reason to be concerned, with a recent opinion that is being published by Division III of the Court of Appeals, Splattstoesser v. Scott, P.3d, 2011 WL 91040 (Div. III, 2011).¹ In this case, Ms. Splattstoesser was injured when another person, one Kenneth Scott, rear-ended her vehicle. No doubt because an agreement could not be reached with an insurance company,² whether because Mr. Scott or his insurance company refused to accept responsibility for the collision or the harm caused Ms. Splattstoesser, a lawsuit was filed.

Washington courts have a mechanism called Mandatory Arbitration. Mandatory Arbitration is intended to relieve court congestion by providing an expeditious, inexpensive method of dispute resolution for claims valued at $50,000.00 or less. Ms. Splattstoesser submitted her case to Mandatory Arbitration and was awarded a total of $18,014.00 for her losses. Mr. Scott requested that the matter be reheard by what is known as a trial de novo. Mr. Scott’s attorney (more likely that of his insurer, without knowledge of Mr. Scott), filed the request for a trial on behalf of “the Defendant, Simon Larson,” rather than Kenneth Scott.

Divison III of the Court of Appeals held that Mr. Scott’s attorney had substantially complied with the request for a new trial and that this was adequate to preserve such request. The reason for concern is that the backload of criminal litigation is increasingly burdening not only our courts, but our counties’ various resources. This failure to hold a defendant accountable for the paperwork he files, particularly when some insurance companies do so out of hand, regardless of the merits of the award and without regard for their insured’s wishes – chips away at the ability of an injured person to obtain justice in a fair and expeditious manner.

Civil litigants in Yakima and Grant Counties should be especially concerned with this development, as inadequate county resources mean civil cases are virtually being relegated to a bureaucratic grave. That may force plaintiffs with meritorious claims to settle their claim for less than fair value, because it is simply not worth their time to wait. If you do find yourself on a jury, in a civil lawsuit, be cognizant of what the plaintiff likely had to go through to have his day in court, and dispense justice accordingly.

¹Filed January 11, 2011.

²In almost any personal injury action, regardless of the parties named, it is a fair bet to assume that an insurance company is funding the defense. Parties are prohibited from discussing insurance in trial, per Washington Rule of Evidence 411. Don’t sweat it if you don’t hear the word. If you’re on a jury, the defendant almost certainly has insurance. If you’re on a jury in Grant County and the defense attorney is from another area, it is almost guaranteed (no insurance defense attorneys are located in Grant County).

Jim Tobin, a Washington State worker, was permanently disabled after being hit by a crane boom. He sued the crane operator, settling for 1.4 million in damages. The majority of the damages awarded were for pain and suffering.

Under the Revised Code of Washington (RCW 51.24.030), an injured worker is required to repay a portion of their third-party recovery to the Department of Labor and industries, in order to reimburse them a for their payment of workers compensation benefits.

A judgment of the Pierce County Superior Court, found that the Department of Labor and Industries could not seek reimbursement from the portion of Mr. Tobin’s third party recovery, which compensated him for pain and suffering. Appellant Washington Department of Labor and Industries sought review of that judgment.

The Department argued that the statutory reimbursement use of the term recovery included all damages, except loss of consortium. They claimed they were entitled to seek reimbursement for the pain and suffering portion of Mr. Tobin’s damages.

On appeal, the court held that because the Department did not compensate the injured worker for his pain and suffering, it could not be reimbursed from that portion of the employee’s award. The pain and suffering portion of the employee’s third party damages was therefore not a “recovery,” as defined under the Revised Code of Washington (RCW 51.24.030(5)).

The court further noted that the legislative history did not provide evidence that the legislature intended to allow the Department to recover the pain and suffering portion of a worker’s third party recovery as reimbursement of money paid to compensate his/her other losses.

The court concluded that RCW 51.24.030 did not give the employee adequate notice that third party settlement funds, earmarked as compensation for their personal pain and suffering, were subject to distribution (under RCW 51.24.060) for reimbursement of payments for other losses.

David Lauman, at Small, Snell, Weiss & Comfort, P.S., are attorneys for Respondent, Jim A. Tobin. A final decision from the Washington State Supreme court is pending.