Updated Second Edition to the Nutshell Guide to Federal Disability Law Practice in Vermont


What We Do – Article Written for the IBEW Local 2326

While love holds a family together, work is what makes a family go. It puts food on the table. It pays the mortgage. It keeps the electricity running. It sends us to the beach for a week in the summer and lays presents under the Christmas tree. But what happens when you can’t work?

Much of our focus at Jarvis & Modun involves securing compensation or entitlement to benefits for a client who cannot work, either temporarily or permanently, because of an injury or disease. Our society has created several types of laws to address these situations. They include workers’ compensation; tort law; Social Security disability and Supplemental Security Income; and private short-term and long-term disability insurance. For veterans, there are disability benefits for service-connected medical impairments and disability pensions. Except for veterans’ claims, Jarvis & Modun practices in all these areas of law.

Workers’ Compensation is a no-fault system of compensation administered by the states. It was born out of a “grand compromise” between businesses and labor in the early twentieth century. As part of the compromise, business leaders agreed that they would pay certain, well-defined benefits to any worker who was injured in the course of employment. In exchange, workers relinquished their right to sue employers if their injuries were caused by their employer’s negligence. Most states – with some notable exceptions – have a workers’ compensation system with laws and benefits that vary from state to state.  But usually, employers must pay for medical treatment. Employees who cannot work while recovering from an injury are usually entitled to temporary disability benefits. Employees that cannot return to their past employment may be entitled to vocational rehabilitation. Finally, permanently injured employees are usually entitled to compensation for permanent impairment.

Workers’ compensation does not cover intangible damages like pain and suffering, loss of enjoyment, or loss of consortium. These types of damages are the hallmarks of tort law. Tort claims typically revolve around the idea of negligence, and require a person to show that another is at fault for causing an injury. This may occur, for example, when a person causes an automobile collision because he or she texted while driving. It may occur when a business does not build its facilities up to code, thereby resulting in someone’s injury. Or it may even happen when a doctor does not do what a reasonable doctor should have done in treating a patient. Unlike other areas of law, tort law is expansive in what a plaintiff can claim for damages in a recovery. This is because the guiding principle of tort law is to make the plaintiff “whole” again. Thus, a recovery may include payments for medical treatment, lost earnings, lost earning capacity, the value of damaged property, as well as the types of intangible losses mentioned above.

Tort law and Workers’ Compensation are not intended to cover everyone who gets hurt. Sometimes a person is neither hurt at work nor hurt because of someone else’s fault. There are also limits to what these laws can achieve. Even if a person is hurt because of someone else’s fault, the person at fault may not have enough insurance or assets to pay for all the damages. Because of these shortcomings, America has also created a safety net of benefit programs designed to keep people out of poverty if they cannot work. The centerpiece of this safety net is Social Security Disability and Supplemental Security Income.

Social Security Disability is part of the public insurance program that includes retirement and survivor benefits. One becomes eligible to draw disability benefits by earning work credits. People who have earned enough credits before becoming disabled can draw the Social Security Disability Insurance Benefits (or SSDI). If one has not earned enough work credits to qualify for SSDI, then Supplemental Security Income (or SSI) is the back-up program. It pays a fixed benefit subject to limitations of family income and assets. To qualify for either program, a person must meet Social Security’s criteria for disability, which requires that a person be unable to engage in substantial gainful activity for a minimum of twelve months because of mental or physical impairment or a combination of both. Age, education, and vocational history also factor in determining whether a person is disabled.

Workers’ Compensation, tort laws, Social Security Disability Insurance, and Supplemental Security Income apply to everyone. Other disability benefits apply to smaller segments of society, such as veteran disability benefits and disability pensions. The Department of Veterans’ Affairs administers these programs, and a veteran can apply for those benefits through a local VA office.

Another limited area of disability benefits includes short-term and long-term disability policies. Often these benefits are part of an employee benefit program provided by an employer. Sometimes a person will buy this insurance for themselves. If the benefits are part of an employee-benefits program, the administration of the benefits are covered by a federal law known as “ERISA.” No one standard applies for these types of policies. ERISA gives a great deal of deference to businesses and insurance companies to define what these benefits include and the circumstances under which they will be paid. The insurance policy controls what is paid, and so it is vitally important to get a complete copy of the policy when claiming either short-term or long-term disability benefits.

Jarvis & Modun practices in most of the major areas of disability and injury law described above. The one exception is veterans’ claims. We also offer a free consultation to anyone who wants to understand their rights and explore whether they need representation in making a claim. If you would like a consultation, please call us at (802) 540-1030 or toll-free at (844) 299-1011.

Rare Victory at the Appeals Council

Jarvis & Modun recently achieved a rare victory at the Appeals Council. The Appeals Council is Social Security’s internal appellate body. It hears all appeals of Administrative Law Judge (ALJ) decisions from around the country. Rarely does the Appeals Council disagree with an ALJ’s decision. It is rarer still for it to disagree so much that it reverses an ALJ’s denial and awards benefits. Usually if the Appeals Council disagrees with the ALJ, it will send the claim back for a new hearing. However, Jarvis & Modun recently achieved a complete reversal from the Appeals Council.

The case involved a young woman who had serious physical and mental impairments. After a hearing, the ALJ denied her claim. He found that her physical impairments were severe, but not severe enough to prevent her from working. He found that her mental impairments were non-severe and had no affect on her ability to work. Jarvis & Modun appealed the mental health findings because all doctors had said that these impairments were, in-fact, severe.

On appeal, the Appeals Council took the rare step of sending the evidence to its own medical expert. This expert was a psychologist who found that not only were the mental impairments severe, they were so severe that the claimant met Social Security’s listings 12.04 and 12.06 for depression and anxiety. The claimant was thus presumptively disabled, and the Appeals Council granted her claims.

New Social Security Rules Compel Claimants and Representatives to Submit All Evidence

On March 25, 2015, the Social Security Administration issued Final Rules that dramatically change a claimant’s duty to produce evidence in connection with his or her disability claim. Before these new rules, a claimant and his or her representative only had to provide medical evidence that established the existence of an impairment and its severity. They were prohibited from redacting evidence, but they did not have to produce evidence that tended to weigh against a finding of disability.

The new rules change that. Now the claimant (or representative) must produce, “all evidence known to you that relates to whether or not you are blind or disabled.” This includes potentially negative evidence. There are only two narrow exceptions. These are for any materials related to the representatives “analysis of your claim.” Although this is somewhat akin to a work product privilege, it is much narrower. Social Security considers this exception to include notes that a representative might take in talking to a witness, but it does not include any reports prepared by a medical expert hired by the representative, even if the representative did not intend to use the expert as part of the claim. The other exception is for materials protected by the traditional attorney-client privilege, such as correspondence between the attorney and client.

During the comment period, many people objected to the new rules on numerous grounds. These objections included fears that the new rules undermined the attorney’s ethical duty to provide zealous representation; that they did not give the claimant or representative the flexibility to withhold evidence that was clearly wrong or biased; and that they would make the claims process more adversarial. By and large Social Security brushed aside all objections, saying that the rules were needed to enhance its ability to reach the right decision in each case.

Clearly by reaching the right decision, Social Security means denying more claims. Over the past ten years it has been making a concerted effort to do just that. In 2006 it implemented a program in New England called “Disability Service Improvement” that was supposed to enhance Social Security’s ability to reach the right decision more quickly by imposing hard deadlines for the submission of evidence, making it harder to reopen prior applications, and appointing a “Federal Reviewing Officer” who could act as an advocate against granting benefits. The Federal Reviewing Officer has been scrapped, but many of the restrictive evidentiary and procedural rules have remained in effect in New England. Meanwhile grant rates have plummeted around the country. From 2000 to 2014, the percentage of applications that were ultimately granted shrunk from 46.72% to 32.16%, even as the number of applications has started to fall since its height during the peek of the Great Recession. See SSA Statistics. While this strategy may succeed in saving money for the Social Security Trust Fund, only time will tell whether it succeeds for America, or whether we will see deeper and prolonged poverty among Americans suffering from disabilities.