If you are a disabled State of Connecticut employee, you may be eligible for both worker’s compensation benefits and a disability retirement. You can be eligible for worker’s comp if an injury happened at work. You will get biweekly payments, based on your previous salary. What happens to your State disability pension when you are eligible for both benefits? It gets complicated. Sometimes a worker’s comp case will be settled – this is called a “stipulation.” This doesn’t happen very often for State employees, but when it does, it can lead to unexpected problems. When the parties settle a worker’s comp case, the State pays the claimant a lump sum amount of money. In return for this payment, the claimant releases the State from any further claims from the injury. The parties may choose to agree that the release only covers payments to the claimant, and not claims for medical treatment. Sometimes the stipulation will show the amount received as a monthly amount. The lump sum payment is divided by the life expectancy of the claimant, and this results in a monthly amount. The claimant still receives the full payment as a lump sum. This calculation is often made to preserve entitlement to Social Security Disability benefits. The Social Security Administration will honor the stipulation.

 

The Retirement Services Division [RSD] of the State of Connecticut will reduce its disability pension, taking the worker’s comp and Social Security payments into consideration. But will the RSD reduce the pension by the pro-rated worker’s comp amount or some other amount? Right now, the RSD is using the pre-stipulation monthly amount, not the pro-rated amount shown in the stipulation. The pre-stipulation monthly amount is much higher than the pro-rated stipulation amount. This results in a large reduction in the State’s payment of disability retirement benefits. The benefit can be reduced to zero or almost zero.

 

The RSD wants to reduce its pension by the pre-stipulation amount.  This is unfair. It deprives employees of the pension they  worked for. The employee may be worse off financially because of the stipulation.

 

Zimberlin Law LLC believes that the RSD should honor the stipulation and use the lower pro-rated stipulation amount in its calculation. If you are a State of Connecticut employee on worker’s comp benefits, and are considering filing for disability retirement, call Zimberlin Law LLC first.

 

If so, you are not alone. Attorneys who represent veterans have a difficult time in getting the Veterans Administration to acknowledge a change of address, leading to hours of frustrating telephone calls and letters to the VA. The Court of Appeals For Veterans Claims has started to take notice. In a recent case, VLAG v. McDonough,  an attorney  complained that the VA was not sending mail to the attorney’s correct address. The Court made an order to ensure that all future mailings would go to the current address.  The Court ordered that: the VA Secretary  must provide an affidavit, signed by the VA General Counsel, the Board of Veterans’ Appeals Chairperson, and the Acting Under Secretary for Benefits of the Veterans Benefits Administration, explaining: 1. Whether VA uses the addresses within the VA central database for all correspondence related to veterans’ benefits, to include correspondence from the regional offices, Board, and General Counsel’s office; 2. whether  the attorney’s  correct address is within the VA central database and associated with all attorneys identified in the petition and all clients identified by the attorney in its response to this order; and 3. the policy purportedly developed by VA to be published on its website as guidance to ensure that attorneys generally, and the petitioner’s attorney specifically, have the information necessary to update their addresses in a manner that VA will implement agency-wide, including the exact process for attorneys to update their addresses to ensure that VA properly updates an address for all agency purposes.

We look forward to the VA publishing guidance on its website describing how to change an address with the VA.  It is truly unfortunate that someone had to bring litigation simply to change an address with the VA. This case highlights the frustrations inherent in dealing with a large bureaucracy. It requires persistence on the part of an advocate to effect any kind of change.

Some good news for people who are on Social Security disability. The Social Security Administration has a policy of “Continuing Disability Reviews (CDRs),” where it will re-evaluate a claimant’s medical condition to see if he or she is still disabled and still qualifies to be on benefits. These reviews are onerous for a claimant, who must often navigate the process without counsel. In 2019, SSA proposed a new rule which would have increased the frequency of CDRs. The proposed rules would have added a category to the existing medical diary categories that SSA uses to schedule CDRs and would have revised the criteria for assigning each of the medical diary categories to cases.  The proposed rules would also have changed the frequency with which SSA performs a CDR for claims with the medical diary category for “permanent” impairments.

This led to a great deal of opposition from disability groups. SSA published the proposed rule in the Federal Register and received 125,552 comments from the public. After considering the comments, SSA withdrew the proposed rule.

Even though SSA withdrew this proposed rule, CDRs are occurring more frequently. The best way to prepare for them is to see your medical provider as often as possible and be sure to tell your providers about all of your disabling symptoms.

The State of Connecticut Retirement Services Division continues to send inaccurate information to disability applicants. If you are applying for State of Connecticut disability retirement, you will generally have two chances to present your case to the Medical Examining Board. If you are denied the second time, you will get a letter which will include this language:

 

“As the Board had maintained its denial of your request for entitlement to service-connected  disability retirement under reconsideration, you have exhausted all your rights to any future reconsideration through the Board.”

 

Don’t let this discourage you! You may not have exhausted all your rights to future reconsideration. This letter can be misleading. You may have additional remedies at the Retirement Services Division. Call Zimberlin Law LLC and we will evaluate your case.  There is no charge for the first phone call.

Connecticut state employees who are awarded disability retirement receive a yearly form from the Retirement Services Division. Until recently, it was a one-page form. The form asked about paid employment, volunteer work, job training and income from worker’s comp or Social Security. This form has been revised into a two -page questionnaire. In addition to questions about employment, job training and other income, it also asks about income under Conn. Gen. Stat. 5-142, and medical treatment for disability.

Conn. Gen. Stat. 5-142 has several provisions.  In general, it provides special disability compensation benefits for certain state employees who are injured while in the performance of their duties that is a direct result of the special hazards inherent in their job. Those employees can receive full salary for five years.

The new form also asks about “Treatment for your disability.”  It asks for names of medical providers, nature of treatment, dates of treatment, and results of treatment. It asks about medications, including the amount taken. This part can be misleading, as it is not clear which disability it refers to.

Both the new and the old forms ask the employee to sign the statement under the penalty of perjury. The old form asks the employee to notify the Retirement Services Division in the event of the commencement of any employment, social security or worker’s comp benefits or the “commencement of any activities that would demonstrate an improvement in my medical condition.” The new form adds a statement asking the employee to also notify the Retirement Services Division if any payments were received under Conn. Gen. Stat. 5-142, or if there was a change to the amount of any benefits paid to the employee or to a family member, or if the employee engages in any activity that demonstrates an improvement in the employee’s medical or psychological condition. “Psychological condition”  was added to the new form.

The new form is confusing and burdensome. We have concerns about this form. If you have questions about it, call us at Zimberlin Law LLC.

The short answer is, you are probably out of luck. In the recent case of Alexander v. Saul, No. 19-2270-cv, the Second Circuit Court of Appeals considered the request of an SSI claimant for an extension of time in which to file an appeal. The claimant had been denied SSI by the Social Security Administration and her attorney filed an appeal in the United States District Court. While her appeal was pending, she moved out of her mother’s house and failed to provide her counsel with updated contact information. As a result, she did not receive notice of the district court’s decision denying her benefits claim until two days after the deadline to notice an appeal had passed. She had 60 days to file an appeal in the appellate court.

Alexander filed a motion with the district court under Federal Rule of 4 Appellate Procedure 4(a)(5) for leave to file an untimely appeal. The Commissioner opposed the motion. Under Federal Rule of Appellate Procedure 4(a)(5), a district court “may extend the time to file a notice of appeal if … th[e] party [seeking an extension] shows excusable neglect or good cause.” The “good cause” standard applies when the need for an extension arises from factors outside the control of the movant; the “excusable neglect” standard applies when the need for an extension results from factors within the movant’s control. The district court denied Alexander’s motion, holding that she established neither “good cause” nor “excusable neglect” for her failure to file a timely appeal.

Because Alexander’s failure to appeal in a timely fashion was at least partially due to her own inadvertence, “excusable neglect,” rather than “good cause,” was the appropriate standard for assessing her claim. To determine whether a litigant has established “excusable neglect” under Federal Rule of Appellate Procedure 4(a)(5), courts consider the four factors set forth by the Supreme Court in Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993). Those factors are: “[1] the danger of prejudice to the [non-movant], [2] the length of the delay and its potential impact on judicial proceedings, [3] the reason for the delay, including whether it was within the reasonable control of the movant, and [4] whether the movant acted in good faith.” Id. at 395. The most important factor is the reason for the delay.

The court was sympathetic to Alexander’s case, but nevertheless affirmed the district court which held that she failed to meet the standard of excusable neglect. The district court reasonably applied the Pioneer factors and held that because Alexander’s untimely appeal was caused by her failure to maintain contact with her attorney—a factor within her reasonable control—she failed to establish excusable neglect under the Pioneer test. While Alexander attributed her delay to her mental illness, which she argued was beyond her control, the record did not compel the conclusion that Alexander’s impairments, as opposed to her neglect, caused her failure timely to appeal.

The Second Circuit made a distinction between the deadline to file a social security appeal in the district court and a social security appeal in the appellate court. The court held that equitable tolling of the limitations period found in Section 405(g) [for an appeal to the district court] is not infrequently appropriate, as Congress intended to be unusually protective of claimants in this area. The court took the opposite approach with respect to the Rule 4(a) deadline [for the appellate court], noting that the time requirements for invoking appellate jurisdiction are strictly enforced.

THE BOTTOM LINE: If a claimant is VERY disabled, and is obviously not capable of managing his or her affairs, missing the appeal deadline for a federal appellate court might be seen as excusable neglect. But don’t count on it. It is essential that a claimant keep in contact with her attorney and keeps the attorney apprised of current contact information.

In the case of Carr v. Saul, 19-1442 (S.Ct. April 22, 2021) Petitioners were six individuals whose applications for disability benefits were denied by the Social Security Administration (SSA). They each unsuccessfully challenged their respective adverse benefit determination in a hearing before an SSA administrative law judge (ALJ). The SSA Appeals Council denied discretionary review in each case. Thereafter, this Court decided Lucia v. SEC, 585 U. S. ___, which held that the appointment of Securities and Exchange Commission ALJs by lower-level staff violated the Constitution’s Appointments Clause. Under the Appointments Clause, only the President, “Courts of Law,” or “Heads of Departments” may appoint “Officers of the United States.    The Lucia Court determined that SEC ALJs were “Officers” rather than mere employees because they held “a continuing office established by law,” exercised “‘significant discretion’ when carrying out . . . ‘important functions,’” and often had the last word in SEC proceedings. A few weeks after Lucia was decided, the SSA’s Acting Commissioner addressed any Appointments Clause questions involving Social Security claims by ratifying the appointments of all SSA ALJs and “approving those appointments as her own.” 84 Fed. Reg. 9583 (2019). The following year, the SSA issued a ruling stating that the Appeals Council should, in response to timely requests for Appeals Council review, vacate preratification ALJ decisions and provide fresh review by a properly appointed adjudicator. That remedy was only available, however, to claimants who had raised an Appointments Clause challenge in either their ALJ or Appeals Council proceedings.  Claimants who had not objected to the ALJs’ appointments in their administrative proceedings would receive no relief. Petitioners fell into this latter category. Here, the claimants lost at the hearing level in front of ALJs. They appealed to the federal courts after exhausting appeals at the agency level.

Because the SSA ALJs who denied petitioners’ claims were appointed by lower-level staff, petitioners argued, in federal court, that they were entitled to a fresh administrative review by constitutionally appointed ALJs. In each case, the Court of Appeals held that petitioners could not obtain judicial review of their Appointments Clause claims because they failed to raise those challenges in their administrative proceedings. In court, SSA did not deny that the ALJs who decided the claimants’ cases were unconstitutionally appointed, but contended instead that petitioners had forfeited their Appointments Clause challenges by failing to raise them before the agency. Several federal circuits had held that claimants may raise an Appointments Clause challenge for the first time in federal court; other circuits required claimants to raise this issue before the agency. The Supreme Court granted certiorari to resolve this conflict.

The reason to require an issue to be raised at the agency is to give the agency the chance to address the issue and fix any problem. The federal courts are reviewing courts and do not wish to hear issues which have not been raised at the agency. For many agencies, this makes sense. Social security proceedings, however, are non-adversarial. Regulations require  SSA to review any information presented by the claimant. No statute or regulation requires claimants to present all  legal issues to the agency. The Court noted that agency adjudications are generally ill suited to address structural constitutional challenges, which usually fall outside the adjudicators’ areas of technical expertise. Secondly, the Court noted that it has consistently recognized a futility exception to exhaustion requirements. It made little sense to require litigants to present claims to adjudicators who are powerless to grant the relief requested. A Social Security ALJ has no special expertise in constitutional matters and cannot provide any relief to the claimant if the ALJ has not been properly appointed.

The United States Supreme Court then concluded that  the Courts of Appeals erred in imposing an issue-exhaustion requirement on petitioners’ Appointments Clause claims.

What This Means:

The take-away from this decision is good news for social security disability claimants. While it is generally a good idea to present legal arguments to the ALJ, it is not necessarily fatal if those arguments are not presented to the ALJ. This is especially true if the ALJ has no power to grant the requested relief. Legal arguments involving the Appointments Clause may be presented for the first time in court. This decision should not mean that claimants do not need to present evidence of disability to the ALJ; that evidence should always be presented to the agency.

An employee of the State of Connecticut, who is disabled, can apply for a disability retirement. The employee must prove to the Medical Examining Board that he or she is disabled. If the Medical Examining Board denies the claim, the employee can ask for reconsideration. A Connecticut regulation provides that a claimant has one year to ask for reconsideration if there is a denial. This one- year period can be extended in certain circumstances. If a request for reconsideration is denied by the Medical Examining  Board, the Retirement Services Division will send a letter to the applicant stating, that since the Board maintained its denial of the claim, “…you have exhausted all of your rights to any future reconsideration through the Board.”  This is not necessarily accurate.  Zimberlin Law LLC has obtained additional reconsideration hearings for Connecticut state employees. Even if you have been denied twice by the Medical Examining Board, and you believe you are too disabled to do the job you had with the State of Connecticut, contact Zimberlin Law LLC and we will evaluate your case.

 

One year after the Veterans Administration promised to create a more transparent way to compare the quality of its hospitals with others, some veterans are complaining that it still hasn’t been done.

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