Tag Archive | "Social Security"

Despite Late Filing, COA decides Father’s Appeal on Merits

Family Law Case Review

Case: Charles Cannon v. Kristy A. Caldwell
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Despite Father filing his notice of appeal nearly one month late, the trial court’s modification of Father’s child support obligation was so manifestly unjust as to provide a compelling reason for the Court of Appeals to decide Father’s appeal on the merits.

HELD: The trial court’s child support order violated the Indiana Child Support Guidelines because it included in Father’s income his Social Security Income (“SSI”), even though SSI – a means-tested public assistance program – is excluded from the Guidelines’ definition of gross weekly income.

*The Court’s opinion refers to Father’s SSI benefit as “Social Security Income,” but “Supplemental Security Income” may have been intended.

FACTS AND PROCEDURAL HISTORY:  
Mother and Father divorced in 2011, pursuant to which Father was ordered to pay child support of $20/wk for two minor children. The children also received $93 per month, each, as a derivative benefit of Father’s Social Security Disability (“SSD”).  Father later became ineligible for SSD, which caused the children to stop receiving their $93/mo ancillary benefit. Father did, however, begin receiving SSI of $773 per month.  Mother filed a petition to modify child support.

The trial court held a hearing, with both parties pro se, which was conducted in summary fashion and in chambers. After the hearing, the trial court increased Father’s child support obligation to $35/wk.  Father filed a motion to reconsider and, later, his tardy notice of appeal.

Most of the Court’s opinion concerns the decision to accept Father’s tardy appeal due to “extraordinarily compelling reasons.” Having decided to entertain the case on its merits, the Court reversed the trial court’s modification order. “[T]he Indiana Child Support Guidelines specifically provide that means-tested public assistance programs, including SSI, are excluded from the definition of weekly gross income used to determine a parent’s child support obligation.”

The matter was reversed and remanded for further consideration, and a determination of whether a modification is appropriate without including Father’s SSI benefit as his “income.”  

To view the text of this opinion in its entirety, click here: Charles Cannon v. Kristy A. Caldwell

 

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James A. Reed and Michael R. Kohlhaas of Bingham Greenebaum Doll represent clients in a wide spectrum of relationship transition and wealth planning matters, including premarital agreements, estate planning, cohabitation, separation, divorce (especially involving high net worth individuals and/or complex asset issues), custody, parenting arrangements, adoption, and domestic partnerships. Bingham Greenebaum Doll, a multidisciplinary law firm serving regional, national, and international clients, is the fourth-largest law firm in Indiana. The firm’s main practices include corporate, property, litigation, labor, government law, and personal services law. Visit the firm’s website at www.bgdlegal.com.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Worker’s Compensation Institute, Nov. 10

TOPICS:
Course Objectives
– Hon. Linda P. Hamilton & Diana L. Wann, Program Co-Chairs
The 411 on Tapering Polypharmacy Regimens
– Mark Pew
Current Trends in Alternatives to Narcotic Pain Management
– Dr. David M. Ratzman 
Pain Management in Worker’s Compensation Injury Care
Panel: Dr. David M. Ratzman, Mark Pew & Kathleen M. Pianki
Questions & Answers
– All Available Morning Panelists
Independent Medical Examinations and Issues They Raise
– Nathan B. Maudlin
Successful Strategies for Settlement: Social Security and Medicare Set Asides, Tactics and Ethical Considerations
Presenters:  T. Reg Hesselgrave, Natalie M. Fierek & Robert J. Doyle

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FACULTY:
Hon. Linda P. Hamilton, Co-Chair

Chair, Indiana Worker’s Compensation Board, Indianapolis, IN

Diana L. Wann, Co-Chair

Jackson Kelly PLLC, Crawfordsville, IN

Robert J. Doyle

Due Doyle Fanning & Alderfer, LLP, Indianapolis, IN

Natalie M. Fierek

Law Office of Natalie M. Fierek, LLC, North Webster, IN

T. Reg Hesselgrave

Attorney at Law, Yorktown, IN

Nathan B. Maudlin

Klezmer Maudlin PC, New Harmony, IN

Mark Pew

Senior Vice President, PRIUM, Duluth, GA

Kathleen M. Pianki, RN BSN CCM

Nurse Case Manager, Genex Services, LLC, Indianapolis, IN

Dr. David M. Ratzman, MD
Anesthesia Pain Consultants of Indiana, Indianapolis, IN
ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Employee or Independent Contractor? Or Will You Pay Twice or More?

By Richard Mann, Richard A. Mann, P.C., Indianapolis

Many businesses are trying to avoid having employees due to the many regulations, penalties, governmental mandates and what they perceive as costly taxes and insurance. Is this a trap you are setting for yourself? Say you run a small law firm and you have a part time secretary, paralegal or assistant. (If not a law firm insert your business i.e. roofer, electrician, butcher, baker, or candle-stick maker) What if that person also works elsewhere? Is that person an employee or independent contractor? You should first look to the IRS for guidance.  When doing so you will find it is not a simple search. The IRS has 4 categories 1) independent contractor, 2) employee (they call a common law employee), 3) statutory employee, and 4) a statutory nonemployee.

  1. Independent contractor. (click on links to access reference material) People such as doctors, dentists, veterinarians, lawyers, accountants, contractors, subcontractors, public stenographers, or auctioneers who are in an independent trade, business, or profession in which they offer their services to the general public are generally independent contractors. However, whether these people are independent contractors or employees depends on the facts in each case. The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work and not what will be done and how it will be done. The earnings of a person who is working as an independent contractor are subject to Self-Employment Tax.
  2. Employee (common law employee). Under common-law rules, anyone who performs services for you is your employee if you can control what will be done and how it will be done. The following 3 factors are also considered Behavioral Control, Financial Control and Relationship of the Parties. This is so even when you give the employee freedom of action. What matters is that you have the right to control the details of how the services are performed. Say you have a secretary, roofer, part-time baker etc. who you control their hours of work, where they work, and how they perform the job. This person is an employee.
  3. Statutory employee. If workers are independent contractors under the common law rules, such workers may nevertheless be treated as employees by statute (statutory employees) for certain employment tax purposes if they fall within any one of the following four categories and meet the three conditions described under Social Security and Medicare taxes:

i. A driver who distributes beverages (other than milk) or meat, vegetable, fruit, or bakery products; or who picks up and delivers laundry or dry cleaning, if the driver is your agent or is paid on commission.

ii. A full-time life insurance sales agent whose principal business activity is selling life insurance or annuity contracts, or both, primarily for one life insurance company.

iii. An individual who works at home on materials or goods that you supply and that must be returned to you or to a person you name, if you also furnish specifications for the work to be done.

iv. A full-time traveling or city salesperson who works on your behalf and turns in orders to you from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments. The goods sold must be merchandise for resale or supplies for use in the buyer’s business operation. The work performed for you must be the salesperson’s principal business activity.

You should consider whether 3 (i) above includes a person who does your typing or research at home or elsewhere? Does it include a candle-stick maker who works from their garage for you or a baker who works from their kitchen for you

Withhold Social Security and Medicare taxes from the wages of statutory employees if all three of the following conditions apply:

  • The service contract states or implies that substantially all the services are to be performed personally by them.
  • They do not have a substantial investment in the equipment and property used to perform the services (other than an investment in transportation facilities).
  • The services are performed on a continuing basis for the same payer.

 

  1. Statutory nonemployee. There are three categories of statutory nonemployees: direct sellers, licensed real estate agents and certain companion sitters. Direct sellers and licensed real estate agents are treated as self-employed for all Federal tax purposes, including income and employment taxes, if:
  • Substantially all payments for their services as direct sellers or real estate agents are directly related to sales or other output, rather than to the number of hours worked; and
  • Their services are performed under a written contract providing that they will not be treated as employees for Federal tax purposes.

Now you may ask: Why should I care? You might think “my employee/independent contractor will not turn me in as they are not paying taxes anyway and we are in a friendly relationship.” Have you heard of whistle blower statutes? One of the biggest causes of IRS audits is from disgruntled associates, employees, and ex-spouses. The IRS Whistleblower –Informant Award program offers rewards of 15-30% of the amount collected. The first award in 2011 was four and one half million dollars ($4,500,000.00) to an anonymous accountant. What if you have been paying the person “under the table?” Unless you are not reporting income you receive, then you are claiming income but not deducting the valid tax deductions for earning that income. If you are not reporting the income then you are incurring additional liabilities including possible criminal penalties. What happens if the person gets injured and files for worker’s compensation and/or social security disability and you have not reported them as an employee? For social security disability, the person must have paid in for a certain period of time. If they were not paying the taxes and it was determined you should have been paying the taxes, then you are subject to tax penalties. Can you then be sued for the benefits they would have received? You can be liable for all the unpaid taxes, even if you are not the owner of the company. See Who Can Be Responsible for the TFRP. These taxes may not even be dischargeable in bankruptcy and may be withheld from your income, wages, and tax refunds in the future.

Next, if the person files a worker’s compensation claim and is determined to be an employee for who you have not carried worker’s compensation insurance, what can happen? Pursuant to I.C. 22-3-4-13(f), “In an action before the board against an employer who at the time of the injury to or occupational disease of an employee had failed to comply with IC 22-3-5-1, IC 22-3-7-34(b), or IC 22-3-7-34(c), the board may award to the employee or the dependents of a deceased employee:

     (1) compensation not to exceed double the compensation provided by this article;

     (2) medical expenses; and

     (3) reasonable attorney fees in addition to the compensation and medical expenses.”

So this means if your secretary gets in a car accident when delivering mail to the local post office and you do not have worker’s compensation insurance her health insurance (if she has it) may not cover her as she is working (see our previous blog on worker’s compensation), and you can be held liable for the entire medical expenses, attorney fees and up to double what the worker’s compensation awards would be.

Now you have a disgruntled employee who may have to file bankruptcy to discharge medical bills, has no income and does not qualify for social security disability. Do you think this person may sue you under Title 22 above? Do you think this person will turn you in to the IRS?

In my practice I regularly encounter people who think they are saving money by claiming everyone who works for them are independent contractors and as such do not pay withholding taxes, worker’s compensation insurance, and sometimes do not issue 1099’s. I have not even addressed the state tax penalties, overtime laws, or the additional IRS penalties for failure to file returns or pay taxes, interest on the taxes/penalties, implications of hiring a contractor who does not cover their employees for worker’s compensation and the interest on all of these. Suffice it to say, not treating an employee as an employee is a dangerous practice. It is even more dangerous if you pay them under the table and do not report income. You should consult a Certified Public Accountant or your business attorney to see what advice they will give you. You may not like the advice but in the long run you may be able to sleep at night without the worries of the possible repercussions.

This is third of a series we will be doing on the issues of sole proprietorships, partnerships and other small business and issues with not complying or handling insurance, tax and other issues that can be found on our blog

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Richard A. Mann has been practicing Family Law for more than 36 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Richard A. Mann, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition for 2009, 2010, 2011, 2012, 2013, 2014, 2015 & 2016.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

This blog does not constitute legal advice nor does it establish an attorney client relationship. This is for general information purposes as in most legal situations the facts and terms of an agreement between the parties can affect the result.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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Law Tips – The Stakes Are High: Prepare Well for Social Security Disability Hearings

Today our Law Tips subject is one that many people hope never to address: the Social Security disability hearing. However, when your client needs your help in this area, preparing well is critically important. Lane Siesky of Siesky & Viehe, Evansville, Indiana, is here to draw your attention to issues that may be lifesaving for your Social Security client.

While the stakes are high, there is a common misconception that nothing that occurs at the Social Security disability hearing makes a difference. For a general practitioner who may have a caseload of personal injury, divorce and worker’s compensation cases, the small Social Security disability file which provides a relatively modest contingent fee may not get the attention it deserves.

Indeed, I receive phone calls from claimants who have lost at the hearing stage of their Social Security disability case. For whatever reason, a common complaint from the claimants is that their attorney did not prepare the case or the claimant for the hearing.

Issues to Consider Before The Hearing:

Prepare Your Client to Testify.
If the claimant’s case involves subjective symptoms (such as pain), your client’s credibility and testimony may be key to the case. If so, the ALJ must evaluate the claimant’s credibility to determine whether the problems are as severe and significant as the claimant alleges. SSR 96-7p.

  1. ALJs differ considerably in how they question the claimant.
    There are different styles of judging in disability hearings. Some judges seem very open minded and want to flesh out all aspects of the case and make the right decision. Others take a more adversarial approach in which they focus on the weak aspects of a case and, only if the client holds up under questioning, will the claimant be deemed disabled. Some judges tum the questioning over to you completely and allow you to build your case, asking only limited follow up questions.
  2. Meet with your client prior to the day of the hearing.
  3. Determine whether any witnesses should testify.
  4. Advise your client to tell the truth.
  5. Advise your client to avoid exaggeration.
  6. Prepare your client to provide specific examples of limitations activities of daily living (ADLs).
  7. Bring adverse facts in the medical evidence to your client’s attention.
  8. Ask your clients to articulate why they believe they are disabled.

Amend the Onset Date When Necessary to Conform to the Evidence.
When a Social Security disability or SSI applicant applies for disability, they are asked on what date their condition prevented them from working. In some cases, the answer is the date of an accident or injury, the date of a surgery from which the claimant never recovered, or the date they were terminated from employment due to the inability to perform the job due to physical or mental problems.

In many cases, however, the alleged onset date is not so clear. This may pose a problem for you as the representative. The client may have inadvertently alleged an onset date that is wholly unsupportable. As you review the medical records, you may learn that that claimant was not unable to work until much later in the period for which the claim was made. In such cases, it is often appropriate to amend the onset date to a date consistent with what is supported by the medical evidence and the claimant’s anticipated testimony at the hearing.

  1. Discuss possible amendment of the onset date with claimant. You must first obtain your client’s informed consent before amending the onset date.
  2. A change in the claimant’s age category may warrant an amendment of the onset date.
  3. Know how amending the onset date will affect the claimant’s back benefit. The claimant must understand the implications of that amendment before the amended onset date is proposed or agreed to by the claimant.
  4. Explain to your client how an amendment of the onset affects Medicare eligibility.
  5. Amending the onset date may affect the dollar amount of the claimant’s monthly benefits.
  6. At the hearing, be prepared to amend if such an indication is signaled by the ALJ.
  7. Be mindful of the date last insured.
  8. Document the claimant’s decision to amend the onset date

Be Prepared to Address Adverse Evidence.

  1. Drug addiction and alcoholism
  2. Unemployment compensation
  3. ADLs.
  4. Criminal Record.

Social Security disability hearings are unique administrative proceedings. They are not in a normal courtroom setting and are supposed to be non-adversarial. The hearings are informal and usually very brief (seldom more than an hour long). They are not subject to the rules of evidence and are heard by administrative law judges who hear only Social Security disability and Supplemental Security Income (SSI) claims.   The disability system operates with an extremely heavy caseload, but each case is resolved with a decision that is subject to further administrative review and ultimately judicial review in federal district court.

The stakes are also tremendously high for the claimants. Most claimants are unemployed and have significant medical problems. Many are uninsured. The minimal level of financial security provided by Social Security disability or even SSI benefits can be life changing for the claimant. Access to health care through Medicaid or Medicare may be lifesaving.

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I appreciate Lane Siesky’s relevant input here at Law Tips. If you are interested in Lane’s CLE presentation on “Preparing the Claimant for Hearing,” including his Hearing Due Diligence Checklist, sign up for our comprehensive Social Security seminar. This six-hour CLE is on our calendar as a Video Replay in several locations around the state. Or you have another option: schedule a personal On Demand Seminar on your own schedule.

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About our Law Tips faculty participant:
Lane C. Siesky, Siesky & Viehe, PC, Evansville, Indiana, services clients in the areas of personal injury law, employment law, False Claims Act cases and civil litigation. He obtained a Bachelors of Science degree in Biology with a Minor in Psychology from Indiana University in 1995. He went on to

graduate from Indiana Law in 1998. Lane first joined an insurance defense law firm and then transitioned to primarily a plaintiff’s practice. He is a frequent lecturer for continuing legal education seminars.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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