Disability And Injury FAQs
Injuries and illnesses that keep from work can cause considerable personal and financial strain. At these times, individuals and families rely on insurance policies to keep them secure. When those benefits are denied, it’s natural to have many concerns and questions. Browse our FAQs to find information and insight from our experienced disability and injury attorneys.
How to Speed Up Social Security Disability ClaimsShow Answer Hide Answer
I would now like to name some specific things that everyone who has an SSD or SSI claim should do to make their Social Security decision happen as fast as possible. First, make sure you answer every question on your application and double-check for accuracy. When Social Security reviews it, they will have to reconnect with you for any additional information needed, further delaying the next steps of the process. Be sure to respond as quickly as possible if Social Security does tell you they need more information, even if it’s something you’ve already told them.
Another good time-saver is to make sure that you have submitted to Social Security all of your medical records that are relevant to the case. Stay in contact with your lawyer, if you have one, to be certain that all the medical evidence for your case has been retrieved by either your lawyer or the Social Security office. It is good to check in with your lawyer every couple of months no matter what.
Social Security applicants with the best chance of winning are those that provide opinion evidence from their doctors that describe what illness is causing the disability and how it is preventing the ability to work. You can get this by simply having your doctor write up a report or fill out a residual functional capacity form (RFC).
After applying for disability benefits, call Social Security or your lawyer within a month or two to double-check that nothing was omitted from your application, and then do your best to get the missing information for them, which could make a good impression before the first hearing. If you are at the hearing stage of your claim process, it could very well take a year or two to get an SSDI or SSI hearing. After requesting the hearing, call the hearing office or your disability lawyer to see what you may need to add to your Social Security file to better your evidence and improve your chances at a hearing.
If you are at this level, that probably means you have lost your chance at hearing once or twice. If you don’t already have a disability lawyer by this point, I strongly encourage you to consider hiring one. Improvements will be better made to your Social Security file if you have a professional’s viewpoint.
One way to get a favorable decision made on your claim without waiting for a hearing date is to request an on the record decision (OTR). This can be best used if it is sent by an experienced disability lawyer, especially one who has had success with OTRs before. This would give you a good chance of winning without having to have a hearing. A request for an on the record decision is most effective when it is written in a legal letter brief format which shows good reason for your disability that is supported by medical evidence. You can request an OTR without a lawyer, but writing a strong brief can be difficult for someone with no legal experience.
An OTR may get ignored if a lawyer is known to submit OTRs frequently or if a brief looks unprofessional. Due to the great number of such requests received at the Social Security hearing office and the much smaller number of lawyers and judges there to review them, there is a good chance yours could be passed by. If you have a disability lawyer who does not feel your case is ready for an OTR, you should respect that decision and ask what else can be done to help strengthen your claim.
An OTR is a request for a completely positive decision made without hearing or testimony. Therefore, many cases are not appropriate for such action. You can have a strong case that has good chances of winning at a hearing, but some testimony is often needed to receive a favorable decision. You can still request an on the record decision without losing your case or damaging your chances of getting a hearing, but not many cases are approved at this early level without a hearing.
Being Noncomplaint | Failure to Follow Doctor’s OrdersShow Answer Hide Answer
Failure to follow a doctor’s orders or prescribed mode of treatment is an easy way for your claim to be denied. When you fail to follow treatment recommended by an attending physician, then you are considered to be a “noncomplaint” patient. Your noncompliance will be noted in the medical records.
Some examples of failing to follow orders are as follows:
- continuing to smoke while claiming disability for a heart condition or breathing problem, such as COPD;
- missing multiple appointments with the doctor;
- failing to follow prescribed medical treatment;
- failing to attend physical therapy when recommended;
- failing to take medications as prescribed to you by the doctor;
- failing to go through additional counseling sessions when recommended by a psychiatrist or psychologist;
- failing to change your diet or lose weight when a doctor recommends such to control diabetes; and
- failing to cease taking illegal drugs or alcohol when recommended by the doctor.
These are just some examples of treatment that may be recommended by a doctor that gets ignored.
Your best chance of maximizing your chance of winning your disability claim is to be in a position to testify that you still continue to suffer from a severe impairment despite doing everything you doctor has asked of you.
Can a Creditor Garnish My Social Security Disability Check?Show Answer Hide Answer
Who is the creditor? If it is anyone other than the Federal Government, then the answer is “No.” If a creditor other than the federal government tries to garnish your Social Security benefits, inform them that such an action violates Section 207 of the Social Security Act (42 U.S.C. 407).
Section 207 bars garnishment of your benefits. It can also be used as a defense if your benefits are incorrectly garnished. Social Security’s responsibility for protecting benefits against garnishment, assignments and other legal processes usually ends when you are paid. However, once paid, benefits continue to be protected under section 207 of Act as long as they are identifiable as Social Security benefits.
NOTE: Supplemental Security Income, or SSI, payments cannot be levied or garnished.
Garnishment of SSDIShow Answer Hide Answer
The Social Security Act prohibits alienation or assignment of benefits, such as execution, levy, attachment or garnishment. See 42 U.S.C. § 407(a).
However, there are two narrow exceptions to the anti-assignment provision:
- First, Title II benefits are subject to withholding in accordance with State laws enacted pursuant to subsections (a)(1) and (b) of 42 U.S.C. § 666 (2000), and to any other “legal process” for the enforcement of alimony or child support obligations. See id. § 659(a). Subsections (a)(1) and (b) of 42 U.S.C. § 666 do not mention any procedure for collecting alimony or child support other than income withholding subject to the percentage limitations of the CCPA, codified at 15 U.S.C. § 1673. “Legal process” is defined as “any writ, order, summons or similar process in the nature of garnishment” issued by a court or administrative agency. See 42 U.S.C. § 659(i)(5)(A)(i) (emphasis added). The regulations at 5 C.F.R. § 581 et seq., and POMS also do not authorize any form of Title II benefits assignment other than income withholding in the nature of garnishment for the limited purposes stated.
- Second, 26 U.S.C. §§ 6331 and 6334(c) permit the Internal Revenue Service to levy upon Social Security benefits only for collection of Federal income taxes.
How do I protect my rights after a car accident?Show Answer Hide Answer
There are few experiences worse than being in a car accident. I know this personally because I’ve been involved in a couple of accidents as a victim of the negligence of the other driver. I’ll never forget that sound of the cars hitting each other- the dull thud followed immediately by the sounds of shattering glass and bending metal. It seems like time slows as you are hyper-aware of what’s happening, checking on your friends and loved ones in the vehicle with you.
The entire event can cause confusion and disorientation as you try to figure out the reality of what’s happening around you. As you gain your senses, there are certain things you need to do – even at the scene of the accident right then and there – in order to protect your rights. This page is a guide to help you do so.
Immediately After the Accident
You probably do not know whether you will be making a claim (or if anyone else will be) immediately after the accident. However, even if you are not seriously injured or do not think you are seriously injured, it is still important to collect key information from the other driver. Regardless of who is at fault (or who you think is at fault) for the accident, you will likely need the following information later for the insurance claims process:
You should obtain the other driver’s name, address, phone number, the name of his or her auto insurance company and the insurance policy number. You should also try to get down the driver’s license information. If the other driver admits that he or she does not have insurance, take note of that as well.
Detailed Accident Information and Evidence
Write down the license plate number and the vehicle identification number (VIN) of each car involved in the accident. The VIN is usually located towards the top/rear of the dashboard behind the steering wheel. You can typically read the VIN through the windshield by the driver’s door.
Also write down the make, model, year and color of the vehicle. Detail what part of the other car came into contact with what part of your vehicle. Note the property damage. If you have a camera (including a cell/mobile phone with a camera), take pictures of the property damage to both cars.
Also take pictures of the surrounding scene of the accident.
Call Law Enforcement
Call law enforcement. Your local police department or the Florida Highway Patrol will send an officer to conduct an investigation. The officer will take statements from the driver, passengers and any witnesses. He or she may collect physical evidence, take notes, and prepare a report.
Call for Medical Assistance, If Necessary
If there are injuries, you may need to call an ambulance for emergency medical care.
Communicating With Others At the Scene
Do not admit fault at the scene. Liability can be established later.
If there are witnesses, write down their contact information.
Within 24 Hours of the Accident
Assuming you are not too injured or impaired to communicate (such as being heavily medicated), you should report the accident to your insurance company within 24 hours of the accident, or otherwise as soon as reasonably possible. Most insurance policies require you to notify them as soon as reasonably possible so they can prepare the claim file and conduct an investigation with prejudice.
Your insurer may cover your rental car, the damage to your vehicle (if you carry collision coverage), and your medical bills under PIP (and Medical Payments coverage if you purchased such MedPay insurance). If you believe the other driver was even partially at fault, and he has insurance, contact his insurance company and open a claim there, as well. Now you have covered all your bases regarding insurance.
Florida is a “no fault” accident state. In Florida, some or most of your medical bills will by covered by the Personal Injury Protection, or PIP, coverage under your own insurance policy. You have certain notification requirements under the PIP part of your policy.
The Other Driver May Try to Blame You
Even if you believe the accident was 100% the other driver’s fault, the other driver may try defend himself or herself and claim that the incident was all your fault or that you share blame. In fact, the other driver may make a claim against your insurance. In such an instance, your own insurance might come into play.
Uninsured Motorist Coverage / Underinsured Motorist Coverage
If the other driver has no insurance, then you may have an Uninsured Motorist claim (often referred to as a UM claim) with your own insurance company. If the other driver did not have Bodily Injury (liability) insurance, or has very low coverage limits, then you may have an Underinsured Motorist claim. Note: you can only make a UM claim if you purchased this type of coverage. An uninsured motorist claim with your insurer may cover your medical expenses and wage loss not covered by PIP/MedPay, and pain and suffering.
Within Two Weeks of the Accident and Ongoing
You should have the physical damage to your car examined. You should obtain a repair estimate (perhaps even two), and provide copies of the estimate(s) to each insurance companies.
With respect to your injuries, make sure you save all receipts from your “out of pocket” expenses so you have an itemized “paper trail” to provide to one or all insurance companies when it comes time to try and settle your claim.
If you have to take time off of work as a result of your injuries, be sure to obtain documentation from your doctor or medical provider indicating the need to stay home from work. You should further document when the medical provider issues an authorization to return to work. In addition, document proof from your employer of the time you were away from work and how much you lost in wages.
Also document if you incur any other expenses, such as the cost of medications, co-pays for all medical treatment including physical therapy, transportation, childcare, and more.
Statute of Limitations on Personal Injury Claims in Florida
There is a very important statute or law in Florida called the Statute of Limitations. This provides that you have a period of four years from the date of the accident to either settle your claim or file a lawsuit against the responsible driver and/or owner of the vehicle(s) at fault in the accident. If you were injured in the car wreck and your claim is taking a really long time to settle, either because your treatment is continuing, you have not yet reached “Maximum Medical Improvement”, or the insurance company is simply dragging its feet, it is important not to “blow” the statute of limitations, or you will lose your right to sue.
If you are approaching the four-year time limit, you will need to file a lawsuit in order to protect yourself and your right to make a recovery for your damages. Once you file a proper lawsuit, you do not have to worry about the statute of limitations any longer. You should hire an attorney to represent you and file the complaint for you. Once you hire an attorney, he be your legal advocate from that point forward. An experienced accident attorney should be able to evaluate your case and negotiate a settlement on your behalf.
It can be unsettling to suffer through a car crash and it is difficult to know how to do everything right afterwards so that you do not jeopardize your claim or lawsuit. Many accident victims hire an attorney early on in the process so that they do not make any mistakes. Especially if you’ve suffered moderate to more severe injuries, hiring an attorney from the very beginning is advisable.
It is possible to hire an accident lawyer even if you started the claims process on your own.
For more information on Florida auto accident claims, click on the following articles:
- How much can I get for my auto accident injury in Florida? How much is my case worth?
- Who is responsible if my car is rear-ended in California?
- How is responsibility in Florida determined after a car crash? Who is at fault?
- My car was being driven by a relative and was involved in a car crash in Florida. Am I liable for the injuries and damage to the other person if my relative was negligent?
- The other driver involved in the car accident in Florida had no insurance. Do I have any recourse?
- I had a car accident in Florida. It was the other driver’s fault. My car was totaled. Yet, the driver’s insurance company will not cover all my costs and damages. What are my options now?
Hiring An Attorney
Dealing with insurance companies after an automobile accident can be a mind-bendingly frustrating process. At the Ortiz Law Firm, we are proud to represent accident victims and their families. Call today for a free case evaluation at 850-898-9904 to discuss your legal rights.
What To Do After a Dog AttackShow Answer Hide Answer
The Center for Disease Control has stated that 4.7 million people are bitten by a dog every year in the United States. A dog attack can be a very traumatic experiences for both adults and children. Knowing what to do after a dog attacks you can help you protect your health and your legal rights. If you or a loved one has been bitten by a dog, there are certain things you should do if pursuing a legal claim for damages:
- Injured victims should also take pictures of the injuries and wounds that they have suffered in the attack.
- After a dog attack, seek immediate medical treatment for your dog bite injuries. A bite can lead to a serious infection- especially if the skin has been punctured. Contact a physician right away. If the bite is very severe, call 911 or have someone take you to the hospital.
- Identify the dog that bit you. Take a mental picture of what the animal looked like. Try to identify the size, color, breed, pinpoint markings or physical characteristics on the dog that will help you identify it later. If the dog bit you and ran off, it was probably a stray. Otherwise, find out where the dog lives and who owns it.
- Determine how you will contact the dog’s owner. This is an important step because it is often the owner’s home insurance company that will be responsible for paying damages for your injuries.
- Call your local health department and report the incident. If the dog was a stray, it may be necessary for you to get rabies shots, which can be painful and costly.
- Report the dog attack to your local Police Department, Sheriff’s Department or animal control agency.
- Take pictures of all visible wounds, torn and/or bloody clothing, the dog and the site of the attack.
- Once you have taken care of yourself, find out as much about the owner of the dog as you can. Get the person’s name, address and dog license information. Discover if there has been a history of biting with the animal. Finding out about the owner can keep you from having to go through the rabies vaccinations and can probably entitle you to compensation.
- Do not provide any insurance company information regarding the dog attack or your injuries yet.
- Keep records of any medical expenses you have had to pay for yourself.
- Do not sign any document before discussing it with an attorney.
- Begin researching reputable Florida dog bite injury lawyers, and contact one as soon as possible. An experienced personal injury lawyer can assist you in navigating the sometimes complex dog bite laws and getting the best possible financial outcome for your injury. Dog bite law dictates that the actions of the dog are the responsibility of the owner, which can entitle you to compensation for your pain and suffering, medical costs and time missed from work.
Time is important when you are filing a claim for a dog attack. If you are seeking treatment for dog attack injuries, Florida state law provides that you must file a lawsuit within four years of the attack. This is the statute of limitations, meaning that if you do not file a lawsuit within 4 yers of the attack, you will forever lose your right to do so.
Your chances of a successful claim and recovery will increase dramatically when experienced and reputable dog bite attorneys represent you. Call injury lawyer Nick A. Ortiz for a free consultation today so that we can discuss your case.
Five-Month Waiting Period for Social Security DisabilityWhat Is the Five-Month Waiting Period for Social Security Disability?Show Answer Hide Answer
What Is the Five-Month Waiting Period for Social Security Disability?
Disability claimants who have been approved for Social Security disability insurance benefits (also known as SSDI, SSD, and Title II disability benefits) are subject to a five-month “waiting period” wherein the Social Security Administration (SSA) does not pay the claimant any disability benefits. This means that if the claim is approved within five months of the disability onset date, Social Security will not pay benefits until the sixth month after the onset date. If the claim is approved more than five months after the disability onset date, then the SSA will withhold the first five months of the claimant’s benefits before starting monthly payments.
Exceptions to the Waiting Period
- Supplemental Security Income, or SSI. Supplemental Security Income claimants who have been approved to receive SSI disability do not have a five-month waiting period. SSI claimants are eligible for their first payment on the first day of the month after they apply for disability. [Note: even SSI claimants are likely receive a few months of “back pay” SSI benefit payments because it takes the SSA at least a few months to approve a claim for disability benefits.]
- Reinstatement. If you were previously approved for SSDI benefits, returned to work, stopped receiving disability benefits, and then become disabled again because of an impairment(s) that is the same as or related to the impairment(s) that allowed you to get benefits earlier, you will not be subject to the five month waiting period for benefits – so long as you make your request for reinstatement within 5 years from the month your benefits ended. This is called Expedited Reinstatement.
- Dependent Benefits. If you are applying for benefits as the child of a disabled worker, your application is not subject to a waiting period. For more information, see our section on SSDI dependent benefits.
When the Waiting Period Starts
The five-month waiting period begins with the claimant’s established onset date (EOD) of disability. The EOD is the date that determined the claimant became disabled. Thus, the date of entitlement to SSDI benefits (or the date when the claimant starts to be owed a monthly payment) does not start until five months after the established onset date.
How the Waiting Period Relates to the Application Date
How does the date of entitlement compare to the disability application date? Answer: A claimant cannot receive more than 12 months of “retro benefits” prior to the benefit application date. In other words, the date of entitlement cannot be more than 12 months before the application date.
If the established onset date is more than 17 months before the application date, then the waiting period will have been exhausted before the date of entitlement and the claimant will receive back benefits going back to 12 months before the application date.
How a Protective Filing Date Affects the Waiting Period
A “protective filing date” is the date you first contacted Social Security and advised the SSA that you would be applying for disability benefits. A protective filing date is similar to your application date for the purposes of the 17-month time limit discussed above. As stated above with respect to the application date, the date of entitlement to benefits can be 12 months before your protective filing date. In other words, you can receive payment for disability benefits for up to 12 months before your protective date if Social Security finds you were disabled five or more months before that date.
As you can see from the above discussion, most of the time a disability claimant does not actually have to wait five months after a decision is made to get benefits because the five-month waiting period is used up while waiting for a disability decision.
Do I Really Need To Hire A Lawyer In My Personal Injury Claim?Show Answer Hide Answer
You Do Not Always Need To Hire A Lawyer For Your Personal Injury Claim
Accident victims often ask me whether they “really” need an attorney to represent them through the insurance claims process. I would never state that you need to hire an attorney because a claimant may go through the entire process without an attorney or other representative. In fact, if the property damages or personal injuries damages are really small in a claim, then we may recommend that the claimant try to negotiate the claim on his or her own.
Will An Attorney Get You a Higher Settlement Than You Could Get on Your Own?
In many circumstances the answer is, “Yes”. This is where I don’t want you to take my word for it. A study conducted in 1999 concluded that insurance companies paid higher settlements to accident victims represented by an attorney than those who represented themselves.
The insurance industry wanted to determine if represented claimants received higher settlements than those who were unrepresented. The Insurance Research Council, a non-profit organization comprised of many of the largest casualty and insurance companies in the country, conducted the study.
The IRC found that claimants who used an attorney received on average three and one-half (3 ½) times more settlement money than claimants who settled claims on their own.
You should at least obtain a consultation with an experienced personal injury attorney to see what he or she can do for you.
About Ortiz Law Firm
Ortiz Law Firm offers free case evaluations, but we do not accept every case. It is simply not worth our time and resources to accept smaller cases. In circumstances where your recovery may be small (say, for example, less than $10,000.00), we may tell you how to handle your case on your own.
Call (850) 898-9904 to discuss your claim with Mr. Ortiz.
What are your attorney’s fees?Show Answer Hide Answer
Attorneys are typically paid in one of two ways: (1) by the hour; and (2) on a “contingency” basis.
Under Option 1, the attorney is paid whether the client wins or loses the case. Moreover, the attorney may charge hundreds of dollars and require a retainer be paid up front. Because many people cannot afford to put up a retainer they opt for Option 2.
A contingency means that something must occur before the fee is triggered. In the case of an attorney-client relationship, the contingency is that the claimant must realize a recovery before there is any fee. In other words, “No win, no fee.”
However, if there is a recovery, the attorney will typically share a percentage of the recovery as a fee. Some have referred to this arrangement as “the poor man’s key to the courthouse,” as it allows a client to retain an attorney without paying anything out-of-pocket up front.
The Ortiz Law Firm handles virtually of of its cases on a contingent fee basis.
- In Social Security cases, the “contingency fee” is typically 25% of the back pay owed to the claimant.
- In Long Term Disability Insurance (LTD), Short Term Disability (STD) and ERISA cases, the fee is typically 33 1/3-40%.
Do You Choose Social Security Disability or Early Retirement at 62?Show Answer Hide Answer
Question: “Should I even bother with the stress of applying for Social Security Disability? I’m 62 years old and am thinking of applying for early retirement and not bothering with the hassle of applying for disability.”
Answer: Yes. It is worth pursuing the Social Security disability claim. Many social security attorneys even fail to recognize the advantage of disability over early retirement. If you elect early retirement at 62 you will be forever penalized and have to accept a permanent reduction of benefits of 20-25%. However, if you are approved for disability benefits, you receive full disability until your normal retirement age (typically 65 years old), and then full retirement benefits without any reductions.