(U.S. Army photo)
By Douglas G. Jackson
Just last month, the court of Appeals for Veterans Claims issued another major decision that is hugely beneficial to disabled veterans. This new decision allows veterans to more easily obtain higher ratings for injuries to the back, neck, and joints.
Most veterans who have applied for disability benefits from the Department of Veterans Affairs (VA) have been sent to something called a Compensation and Pension examination, or they are often called by the VA, "C&P exams." This is an examination orchestrated by the VA to assess the origin and extent of the veteran's disability. Veterans who have been to these examinations know that each C&P examination can be very different. Some examiners are very thorough and listen to the medical problems of the veteran, but other C&P examinations can be simply inadequate.
In a recent case called Sharp v. Shulkin, the court issued decision that addressed one of the inadequate examinations. In this case, the court decided that a C&P examination is inadequate if the C&P examiner is does not consider flare-ups and pain, even if the veteran is not experiencing it during the examination. This decision further opens the door to even higher disability ratings when the veteran loses some functional ability in these joints due to the flare-ups or pain.
The court's decision also helped veterans because it imposes higher standards on the C&P examiners. After this decision, a C&P examination will usually be considered inadequate unless it gives an opinion about how the flare-ups and pain affects the veteran’s ability to use the injured body part. In fact, the court clarifies that the only time that a C&P examiner may say that he or she cannot give an opinion of the functional limitations due to pain or flare-up are when the following three factors are met: (1) "it is clear that the examiner has considered all procurable and assembled data," (2) the examiner thoroughly explained "the basis for his or her conclusion that a non-speculative opinion cannot be offered," and (3) the "medical community at large" is not able to give an opinion without resorting to mere speculation.
Another reason that this decision helps veterans is because it makes it clear that the VA should attempt to schedule a C&P examination during a flare-up, whenever that is possible. While the court does acknowledge that this may be impossible when a flare-up only lasts a day or two, it may, yet, be possible to schedule a C&P examination during a flare-up where a flare-up is known to last a month or longer.
Luckily, this court decision also discussed what a C&P examiner must do if the examination is not scheduled during a flare-up. The decision holds that even if an examination is not able to be scheduled during a flare-up, the C&P examiner is still supposed to give an opinion as to how the veteran would be functionally limited during a flare-up. The examiner can use various pieces of evidence to make this opinion, such as the veteran's own description or other "buddy statements", which are written statements from others about the veteran's condition.
What this new court decision means is that veterans can, more easily, obtain higher disability ratings for injuries to their neck, back, knees, or other joints. Overall, the court championed another big win for veterans.
Florida Bar Association's Family Law Section says it no longer supports alimony-reform bill it helped write Irreconcilable differences
Florida Bar Association's Family Law Section says it no longer supports alimony-reform bill it helped write Irreconcilable differencesBy Erin Sullivan
click to enlargeBeth Cortez-Neavel/Flickr
Just before the end of its 2016 session, the Florida Legislature approved a bill to go to Gov. Rick Scott that has put the Florida Bar in an odd quandary: The Bar's Family Law section is now urging the governor to veto a bill that, for the most part, it wrote, lobbied for and wanted to see pass this year.
The bill, an alimony-reform effort, is probably the most quietly contentious piece of legislation that has worked its way through the Statehouse this year. It hasn't been big news, the way that fracking or gambling have been, but it's been bitterly debated in legislative committees and on social media, and people on both sides of the debate – those for alimony reform, and those against – have a lot at stake in the battle.
On one side are alimony recipients, many of them women who gave up working for years to raise children and help their former husbands excel in their careers. On the other are alimony payers – mostly men, though there are some women in their midst – who feel they shouldn't have to pay their former spouses for the rest of their lives and that the current system is bleeding them dry.
If the reform measure is signed, the bill would alter the way courts determine alimony – it would give judges guidelines to decide alimony payments, limit the duration of alimony to recipients, eliminate "lifetime" alimony and spell out specific circumstances under which alimony awards may be modified or terminated. That's something that Tom Sasser, an attorney from West Palm Beach and the former chairman of the Family Law section of the Florida Bar Association, who's serving as the bar's alimony spokesman this year, says has been sorely needed in Florida for a long time.
"There are no guidelines that exist today for alimony," he says. "There's a list of factors the court is to consider, but they are not arithmetical. We say certain types of alimony are available for certain length of marriages, but we don't do a guideline. It's highly discretionary in Florida, and that's what the bill seeks to change. ... It gives a framework to negotiate in, so you're not dealing with extremes. That was really the biggest driving force behind this. Before, you were dealing with high levels of variability, and it was varying from county to county, courtroom to courtroom."
However, the bill also contains troublesome provisions. Among those, Sasser says, is a last-minute addition that eliminates guidelines for marriages that lasted more than 20 years and in those cases encourages judges to "equalize" income of the two former spouses. Sasser says that the whole point of the bill was to keep alimony awards from being arbitrary and wildly inconsistent, and that clause contradicts its very purpose. The other onerous portion deals with parenting, urging judges to presume that when children are involved in a divorce situation, both parents are equally fit to raise them and should have 50-50 custody. Sasser says the Family Law section of the bar unequivocally opposes that provision.
"The court should look at the children and determine what is best for them, regardless of what's best for the parents," he says.
Some alimony recipients – many of them women who say they spent their best working years supporting husbands and families – see other problems with the bill, too. Take Ann Dwyer of Longwood, for instance. She's a 71-year-old who was married for 20 years and moved around the country whenever her husband took a new job. She worked a little bit, she says, but her primary role was to take care of the family so her husband could focus on work.
"We were married in 1967, and we both had undergrad degrees," she says. "He left in 1988, and it took me four years to get a good job. ... Between 1988 and 1992, I had to go back to school because my degree meant nothing."
Even worse, she says, is that she worked so little during the time she was married that she didn't earn much in the way of Social Security, so she doesn't have that to rely on. Alimony recipients receive half of their former spouse's Social Security upon retirement, as well, but Dwyer says she still works 25 hours a week to make ends meet, and she doesn't think she'll ever have enough money to retire. The new alimony bill eliminates what's called "permanent" alimony and allows payers who are of retirement age to request that alimony payments end when they're ready to stop working – a luxury that Dwyer says she never expects to enjoy.
"I am 71 and still working, even though I do get my alimony," she says.
One provision of the alimony bill particularly rankles her, she says, and it's a clause that notes that as little as a 10 percent increase in income can be enough for an alimony payer to request a modification of an alimony agreement. If, for instance, a woman making $10 an hour gets a $1 per hour raise at the job she takes trying to get back on her feet after divorce, her ex-husband could take her to court to reduce her alimony payment.
Sasser and the bill's supporters say this law is not retroactive – it states that it only applies to alimony arrangements in process or made after the bill's effective date of Oct. 1, 2016, and it does not automatically modify existing alimony agreements. The bill's language also states that its passage may not be the "sole basis" for alimony payers to seek modifications to alimony arrangements, which Sasser says will still be subject to the laws on the books when the original alimony agreement was made, because the bill itself does not constitute a "substantial change in circumstances" required for modification. He says that concerns that the law will alter existing agreements are unfounded.
However, Dwyer says the language in the bill is tricky – it says that a party is entitled to seek "immediate modification" in alimony if the recipient gets that 10 percent raise because, according to the bill, that would be considered a "substantial change in circumstances." She fears that attorneys and judges may interpret the 10 percent clause as grounds to take former spouses back to court to strike a better deal.
"I make $15 an hour working for a divorce attorney," says Jan Killilea, a Boca Raton woman who divorced in 2009 after 25 years of marriage. She says that she moved nine times over the course of her marriage to follow her husband's career. "Now, if I get a 10 percent increase in my pay, my ex-husband, who made $365,000 last year, can take me in for a modification."
Killilea, who formed an organization called First Wives Advocacy Group to support women receiving alimony, has been extremely outspoken in her opposition to the bill. She's been interviewed by NPR, testified before the Legislature and started Facebook groups where women like her can meet and talk about their situations. In exchange for her advocacy, she's been cyberbullied on social media – a search for her name on Facebook turns up posts in which a group called the First Husbands Alimony Group posts photos of her and criticizes her for going out, traveling and skiing. In one of its posts, the First Husbands group calls lifetime alimony recipients "parasites with entitlement problems."
Killilea says that she's not completely opposed to alimony reform, but she says if it happens, it needs to be comprehensive and it needs to be fair to all parties. She points out that, even though some alimony payers refuse to make alimony (or even child-support) payments, this bill doesn't strengthen enforcement. It also changes the law so that alimony can be challenged if recipients are involved in what can be called a "supportive" relationship – current law requires cohabitation or marriage in order for alimony to be terminated – but it doesn't really define what supportive should mean, leaving it up to the courts to determine based on a variety of factors.
Sasser says that many of the concerns that alimony recipients have had over the bill are premature. He says that currently, judges' decisions can unfairly impact either alimony recipients or payers, and the new law gives both sides some reasonable expectations about the process.
"A lot of people have made the comment, 'Oh my God, this is going to leave women without any money,'" he says. "But that is not what these guidelines do. ... What we have proposed is based on guidelines used in other states and countries, and they have not done all of the horrible things people claim. In other jurisdictions where these guidelines have been applied, people have made the same arguments, and you know what? It didn't happen."
However, there is that child-care portion of the law. Under a 50-50 shared-parenting agreement, the assumption is that both parents are equally fit to care for children, and all costs are split based on how many nights children stay with each parent. If one of the parents chooses not to use his or her allotted time with their kids, critics point out, the burden falls to the other parent to care for them and still cover their full share of the cost of caring for them. Carey Hoffman, a divorced mom and advocate for women receiving alimony, points out that the new law leaves kids vulnerable to the whims of disgruntled parents going through a contentious divorce.
"It starts at 50-50, then you have to present evidence saying why it's not working," she says, but it's costly to go to court repeatedly and most working parents can't afford it. So in the end, the kids suffer. "The system is already not working, and this legislation is just creating more flaws. There are many family-court issues that need to be dealt with, and they need to take care of the other issues first."
Sasser agrees that the child-care clause of the bill is fraught, and even if the bar's Family Law section could get past the 20-year-marriage addition to the bill, it cannot overlook the child-care portion. He says it puts the Family Law section of the Bar into the "unenviable position of opposing legislation that it supported."
"It's very frustrating, because the section worked very hard on the alimony piece, and really does want it to pass," he says. "But it also feels very strongly about children. The No. 1 rule in the family court system is children come first. So [the Family Law section of the bar] is willing to fight its own alimony legislation to protect the best interests of children."
FOR IMMEDIATE RELEASE
DECEMBER 21ST, 2015
The Lawyers of Distinction is pleased to announce that MARIE S.M. DICKINSON, ESQUIRE of MCCLANAHAN DICKINSON LAW GROUP based in Sanford, FL and Williamsburg, VA has been certified as a Distinguished Member in the areas of Family and Divorce Law. The Lawyers of Distinction is recognized as the fastest growing community of distinguished lawyers in the United States. Membership is limited to the top 10% of attorneys in the United States.
Marie Dickinson has a long history of service to her community. She taught in the public school system for eight years and focused countless hours helping at-risk students in Seminole County. Mrs. Dickinson left teaching to serve her country in the United States Army as an enlisted soldier and moving into the rank of First Lieutenant. She completed a decorated tenure in the military, serving in Operation Iraqi Freedom and Operation Enduring Freedom with the 3D Infantry Division and recently retired from the service to relocate back to her hometown of Sanford, FL. She now works with her father, a West Point graduate and Vietnam Veteran, in their law firm that is only minutes away from the commission seat her grandfather sat on for many years and steps away from the halls of the old courthouse that she spent hours in as a lawyer’s daughter.
Welcome home Marie.