Get Answers to Your Legal Questions in Our FAQ
Dealing with a legal issue whether it be applying for and receiving disability benefits, fighting for a personal injury claim, or navigating through a divorce, can be a challenge, and many people are left with questions about what they can do to get the help they need. At the law offices of Loyd J. Bourgeois, we understand how hard it can be to get the answers you need. That’s why we’ve put together the following list of Frequently Asked Questions (FAQs) and answers dealing with family law, personal injury, disability benefits, claims, and appeals and the related law in Louisiana.
The following are some FAQs that I receive as a Louisiana attorney. They may answer some of the questions you have regarding your Social Security Disability appeal, your long-term disability insurance denial, your personal injury claim, or your Louisiana divorce. If you have a question that is not answered here, please call the legal team of Loyd J Bourgeois, LLC at 985-240-9773.
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What is Residual Functional Capacity (RFC)? Social Security Disability Lawyer Explains!
One of the most important concepts in evaluating disability claims is Residual Functional Capacity (RFC) also referred to as Residual Functionality.
The code of federal regulations describe residual functional capacity as follows:
Your residual functional capacity is the most you can still do despite your limitations.” 20 CFR 404.1545; 20 CFR 416.945.
What is Residual Functional Capacity?
Residual Functional Capacity is an evaluation of your remaining ability to do things (work) after taking into account all of the limitations your severe medical conditions cause you.
Think of it as “How much can you do & for how long?”.
What is your ability to work?
The Social Security Administration will look at how your medical condition(s) has affected your ability to exert yourself physically for work-related tasks. These are things like:
- How long can you sit?
- How long can you stand?
- How long can you walk?
- Exert yourself physically for various work-related activities (such as sitting, standing, walking, lifting, carrying, pushing, pulling).
- Can you do manipulative and postural activities (such as reaching, handling large objects, using your fingers, feeling, climbing stairs or ladders, kneeling, crouching, crawling)?
- Can you stoop?
- Can you balance?
- Can you tolerate certain environmental conditions (such as high or low temperature extremes, wetness, humidity, noise, dust, fumes, odors, gases, poor ventilation, vibrations)?
- Can you work in hazardous working conditions like around or with machinery?
- Can you work at heights without any protection?
- Do you have any problems seeing, hearing, and speaking?
Your RFC encompasses your mental faculties as well.
- Can you maintain concentration and attention at work for extended periods of time?
- Can you understand and remember instructions and carry out your duties throughout the day and from day to day?
- Can you get along with people in your workplace or the general public?
- Can you cope with changes in the work setting?
- Can you respond appropriately to supervisors, co-workers, and usual work situations?
For example, let’s assume you have chronic back pain and take narcotic pain medications for treatment. Your doctor has told you that the most you can lift is 20 pounds occasionally and less than 10 pounds frequently. Assume further, that as a result of the medication you take to treat your back pain, that you experience drowsiness, fatigue and should not operate heavy machinery. You also cannot sit for longer than 1 hour at a time or stand for longer than 30 minutes before you need to rest.
Knowing these limitations, what can you do?
- You can lift 20 pounds occasionally and 10 pounds frequently.
- You can sit for up to 1 hour.
- You can stand for up to 30 minutes at a time.
- You cannot operate heavy machinery.
- Can you do anything else?
- Are you limited in other ways?
There are a number of other factors that should go into your residual functionality, but these are not always clearly explained in the medical records.
When these other factors are not clearly explained in your medical records, Social Security may find that you can perform these tasks.
Some factors that should be considered are the ability to twist, bend, stoop, reach, grasp, handle/finger, kneel, crawl, and climb.
Additionally, other non-exertional factors can play a role in establishing your residual functionality as well. These factors can include things such as the ability to follow directions, maintain concentration, pace, and persistence, ability to get along with co-workers, reliability (do you show up), and a host of other issues.
Your overall residual functional capacity is your remaining physical and mental ability after taking into account your physical and mental limitations.
Oftentimes, the medical records that I review do not discuss a number of factors essential to a proper determination of your RFC. The reason is that many of these factors are irrelevant to a doctor’s actual treatment of your medical condition. However, they are important for Social Security Disability claims because SSA’s determination is focused on your functional ability – not your medical history.
Social Security defines residual functional capacity as sedentary, light, medium, or heavy.
If you do not meet a listing, your RFC needs to be at a certain level to qualify you for social security disability benefits.
Your RFC needs to prevent you from performing your past relevant work and all other types of work that exist in significant numbers.
The specific RFC needed to show that you cannot perform your past relevant work or other types of work is dependent on your age, education, training, and past work history.
A thorough understanding of all of the factors that go into an RFC determination is important if you want to have the best chance of success with your SSDI claim. As a Louisiana SSDI attorney, I can help you understand the residual functionality you will have to prove in order to give your disability case the best chance of success. Give me a call at 985-240-9773.
Who pays the legal fees in a divorce?
Simply put, in almost all Louisiana cases, each party pays their own costs and fees.
This means – you pay for your attorney and filing fees and other costs, and your spouse pays for their attorney and filing fees and other costs.
Who pays filing fees in a Louisiana divorce?
If you want to file the divorce, be prepared to pay the filing fees and service costs – even if you don’t have an attorney.
If you need to file an answer to a divorce, you are responsible for the filing fees. The same thing with each time you want to contest something, file a motion for contempt, or attempt to change a prior court order. Or, if you want to oppose a filing, fight a motion for contempt, or fight any filing in the divorce proceeding.
A simple uncontested divorce may result in very few filing fees, but a contested divorce with child custody, child support, and/or property separation issues could result in filing fees really adding up.
How much do filing fees cost?
The next question is – well, what are the filing fees? These are court dependent and set by the clerk of each court.
You can check out the filing fees for St. Charles Parish, Jefferson Parish, St. John the Baptist Parish, Orleans Parish, Lafourche Parish, Terrebonne Parish, or other parishes at the Clerk of Court’s website or by calling the appropriate office.
How much does a divorce lawyer cost?
With regard to attorney fees – this is case-specific and will be dependent on a variety of factors.
Most family law attorneys charge an hourly rate, but they can vary very much from lawyer to lawyer.
The other factor is how much time the attorney spends on the case. Spouses arguing over everything from alimony and child support to minor things such as who gets the Yeti cooler can cause attorney’s fees to add up quickly.
Who pays divorce attorney fees in Louisiana?
In most divorce cases, each party is responsible for paying their own attorney’s fees.
In an at-fault divorce, the at-fault party will not be ordered to pay the fees of the other party simply as punishment for cheating or other marital misconduct.
If one party continues filing unnecessary motions or drags proceedings out by refusing to cooperate, the judge may award attorney’s fees to the other party. In these cases, the fee award would not pay for the entire divorce, just the extra time and court appearances caused by the bad faith of the party.
In some cases where one spouse makes much more money than the other, the judge may order the higher-earning spouse to pay the attorney fees of the other spouse. Simply because it would not be fair for one party to battle against a high-powered attorney without be able to afford counsel of their own at all.
However, the judge will usually deduct what was paid for the attorney from your share of the joint assets when the property division is final. Therefore, ultimately, the lawyer was paid out of your share of the money.
How do I apply for SSDI or SSI?
You can apply for social security disability benefits or supplemental security income benefits in a number of ways.
The best and most reliable method is to go to your local social security office and apply in person. I am listing a few Louisiana Social Security Offices here for your reference:
- 1616 Joe Yenni Blvd, Kenner, Louisiana
- 400 Poydras, Suite 500, New Orleans, Louisiana
- 115 Terry Parkway, Terrytown, Louisiana
- 19375 North 4th Street, Covington, Louisiana
- 205 Arkansas Street, Bogalusa, Louisiana
- 2100 Robin Avenue, Hammond, Louisiana
- 2nd Floor Federal Building 206, 423 Lafayette St., Houma, Louisiana
If an office close to you is not listed, you can find the office that serves you by using Social Security’s Find An Office tool.
You should be aware that the in person application, while the most thorough, can take a few hours between the waiting and the application. You should prepare to be there the whole day and have as many records as possible with you. You can also call in advance for an appointment at 1-800-772-1213.
You can also apply for social security disability benefits online.
How does Social Security determine if I qualify for SSDI?
Under Social Security rules and federal law, in order to qualify for SSDI, you must have a total disability that has or is expected to last for at least 12 months (or result in death) and you must have worked enough to be insured under Social Security law. Benefits are not payable for partial disabilities or for a short-term disability.
Social Security defines disability as your inability to do the work you performed before your disability began and the Social Security Administration determines that because of your disability you cannot adjust to other work. Your disability must also last or be expected to last for at least 12 months or to result in death.
How much does a disability attorney charge?
As a New Orleans area disability attorney, one of the first questions I am usually asked is "How much will this cost me?"
There are many falsehoods and misconceptions out there about how much it costs to hire a disability lawyer.
How much can a lawyer charge for disability?
Federal disability law fees are set by law and cannot exceed 25% of your back benefits.
In many cases, the maximum is $6,000 (if we win at the first hearing). That’s because I generally use the fee agreement process.
AND that amount is only due if I am successful in representing you. If your claim is denied, you owe no attorney fees.
For example, let’s assume that we are successful in getting your disability benefits.
Your onset date is set 24 months prior to today’s date (that means that SSA will owe you back benefits). Due to SSA laws, you can be paid 19 months of back benefits in this scenario (because SSA does not pay for the first 5 months). If your benefit amount is $850 per month, your back benefits would equal $16,150 ($850 X 19). The attorney’s fee on this amount would be $4037.50 ($16,150 X 25%).
Will a disability attorney take a percentage of my future benefits?
Here is another important aspect of a disability attorney’s fee: you do not owe a fee based on future benefits.
That is, you will not have to keep paying your disability attorney 25% of your monthly disability check.
Once the disability lawyer is paid from the back benefits, that is all you owe with respect to fees.
In some cases, disability attorneys charge costs (which are different from fees) whether your claim is successful or not.
What about costs?
Costs include things such as expenses incurred for medical records, long-distance phone calls, mail, parking at your hearing, and other costs paid to develop your disability case.
As an SSDI attorney in Louisiana, I generally handle the cost issue on a case-by-case basis. You should ask your disability lawyer (or disability representative) how they charge costs.
One thing to keep in mind if you use a disability representative from a national firm that must travel to your area is whether or not those travel costs will be charged to you.
This could include airfare, rental car, hotel stay, and meals. These costs can get expensive and really decrease the amount you end up with at the end of the day.
While the maximum amount of fees is limited by the law, costs are not limited in the same manner.
Thus, you need to watch costs and be mindful of them when you hire a disability lawyer. In Houma and other places, these costs can get excessive.
There is a possibility that a disability attorney may get more than the $6,000 if your case involves extensive work (usually because of multiple appeals to and from SSA and federal court).
However, even in that case, the fee charged to you cannot exceed 25% of your back benefits. In this case, the fee petition process would have to be used.
If you're preparing to apply for Social Security disability or appeal a claim denial, I've written a book 9 Mistakes that Can Disable Your Social Security Disability Claim. This is a helpful and informative guide that will guide you through some of the common mistakes and errors that lead to unfavorable Social Security Disability decisions. Don't make a costly mistake that could cause you to lose the benefits that you need to survive! I'd love to send you a copy. Just click here to receive your free copy of my book 9 Mistakes That Can Disable Your Social Security Disability Claim.
Can we use the same attorney during a divorce to save money?
Divorce is expensive – both emotionally, physically and financially. One way you may consider saving a few bucks is to reduce attorney fees by both you and your soon-to-be ex-spouse using the same divorce attorney for legal representation.
You wonder “Should we share a divorce attorney?”
Can you use the same lawyer in a divorce in Louisiana?
Bad news – sharing a divorce lawyer is not possible in Louisiana. You and your spouse – even if everything is agreed upon – are opposing parties in a divorce lawsuit. This is an unwaivable conflict of interest for any attorney. The Louisiana Rules of Professional Conduct do not permit an attorney to represent both parties in a lawsuit.
Your Metairie Divorce Attorney cannot represent you and your spouse. Neither can your Destrehan Divorce Lawyer. You and your spouse need to have a separate family law attorney in Louisiana.
An attorney owes the client many duties including confidentiality, impartiality, and must look out for their client’s best interest. This cannot happen if the attorney represents both sides – which is why the conflict cannot be waived.
Even if spouses agree, sharing a divorce attorney in Louisiana isn’t just a bad idea, it’s not allowed.
How can I save money in a divorce?
Now, what does happen from time to time is one party retains an attorney and the other does not. Even in these situations, the attorney is not allowed to give any legal advice. The party without an attorney should remember the attorney is not there to protect their interests or ensure fairness.
When to hire your own divorce lawyer
If your situation includes:
- complex finances,
- spousal support,
- child support or child custody issues,
- an imbalance of information, money, or power
Don’t be cheap - consult with a family lawyer before signing a settlement agreement as it could save you plenty more in the long run!
What is a 'tort'?
A tort is a wrongful act or an infringement of a right (other than under contract) leading to a civil legal liability.
One example of a tort is a car crash. The other driver may not have intended to hit you but due to either inattention or failure to obey highway laws or some other reason, they may have crashed into you infringing your right to the roadway. This is a negligent tort.
Another example is if someone punches you - a battery. This is an intentional tort.
What are the 3 types of torts?
The three main types of torts are negligence, strict liability, and intentional torts.
What is an example of a tort?
Examples of negligence torts include – automobile accidents, professional malpractice (medical, legal, accounting, engineering, etc.), dog bites, bicycle collisions, etc. Generally, any situation where another person or entity may have caused or contributed to any injury.
Strict Liability Tort
Examples of strict liability include claims like product liability, vaccine injury and premises liability.
Examples of intentional torts include things like assault and battery (fighting).
What about 'Tort Reform'?
So, when you hear of TORT Reform – think, someone is looking to reform the law because they don’t like being accountable for their own actions and responsibilities. Not surprisingly – most of the Tort Reform advocates and supporters are insurance companies and major business interests. And, instead of changing their behavior, they want to change the law and take away your rights.
Recently, “Tort Reform” advocates have been trying to change many of Louisiana’s laws to make it more difficult, costly and burdensome to hold others accountable for their own negligence in an effort to “reduce costs” and “save money.” While their efforts have failed so far, we can bet they are not done in trying to take away your rights to be made whole.
And while tort reform “advocates” have many statistics (you know what they say about statistics – “lies, damn lies, and statistics”), here are a couple of things to keep in mind:
- A Forbes (you know – the business magazine famous for identifying the 400 richest people in the world) contributor once said the devil’s “second greatest trick may be the insurance industry’s success in getting more than half the states to implement tort reform."
- A 2017 National Institutes of Health study on tort reform in Texas (passed 15 years earlier), found “reforming the malpractice environment has largely insignificant economic implications..”
- Recent testimony before the Louisiana legislature by those advocating for “tort reform” indicated even with all their statistics, the insurance industry tort reform advocates could not say whether or not the changes would result in lower premium rates for Louisiana drivers!
Look, as a person, a tax-payer, and business owner, I hate the high cost of insurance and litigation first mentality of so many. But, I see – from the front-lines, every day – the devastating effects “tort reform” has and continues to cause! Consider this:
- If you are injured due to someone else’s negligence – resulting in you losing a limb or losing life. What would that be worth?
- In an auto-accident with an 18-wheeler – it’s worth what the evidence and your community members (jury) say it’s worth.
- In a medical malpractice action – it’s worth what the evidence and your community members say it’s worth – unless it’s worth more than $500,000 because that is the arbitrary cap on general damages in these cases (which has not changed in almost 30 years)! Once you add up medical bills, treatment, and lost work, that number isn’t as big as it seems and certainly doesn’t go as far as it did 30 years ago.
- What about if a company fails to have a policy to check its floor for hazards and you slip and fall in a hazardous substance causing you to require multiple back surgeries?
- If the slip-and-fall happens at a hospital or casino or even a government building or school, you play by one set of rules and laws.
- If the slip-and-fall happens at your grocery store, department store, restaurant, or other “merchant”, you play by a completely different set of rules and laws designed to make it virtually impossible to receive compensation for your injuries.
- And this is most infuriating to me – the advocates of these reforms cannot say with any certainty that by removing your rights, you will actually see a benefit in the form of cheaper costs!!!!
Current tort-reform advocates want to put a cap on all commercial vehicle accidents at the same level it was set for medical malpractice cases 30 years ago! They further argue courts are so over-stressed with “frivolous” lawsuits, they cannot operate properly. But, studies indicate civil filings have decreased by almost 50% since 2010 in some states, and tort cases (those primarily filed by individuals against a business or insurance company) only account for about 4% of civil cases!
I encourage all of you to look deeper into any tort reform efforts. Look specifically at who is funding these efforts (hint: it’s not consumer advocates looking out for your best interests). And, make your voice heard by calling or writing your state representative and letting them know your stance on these measures designed to take away your rights – often at a time when you need them the most!
What Will Happen to my Social Security Disability if the Government Shuts Down?
**Click here for information on how the COVID-19 pandemic and shutdowns will affect Social Security Disability**
Many New Orleans-area Social Security Disability claimants and recipients are wondering how a government shutdown affects them and their benefits, application, and/or hearing.
The government briefly shut down fully twice in under a month in early 2018. On December 22, 2018, the government entered a partial government shutdown after President Trump would not sign the temporary spending bill passed by Congress. This shut down was only a partial shut down due to the fact that some departments had already been funded through September 2019. The Department of Health and Human Services which includes Social Security was included in this previous spending bill and therefore was not affected by this partial shutdown.
WILL I STILL RECEIVE MY SOCIAL SECURITY DISABILITY BENEFITS IN A GOVERNMENT SHUTDOWN?
When the government shut down in 1995 and again in 2013, all Social Security payments continued to be sent out on time. This included Social Security Disability.
During the 1995 shutdown, which lasted about a month, the Social Security Administration mailed checks throughout the shutdown. Social Security was able to continue mailing benefits due to the fact that doesn’t need Congress to authorize funds for it each year. Instead, Social Security benefits are considered mandatory spending and are paid from the program’s trust fund, and therefore, the agency has the funds to continue paying benefits. In 1995, Social Security maintained enough employees to continue mailing checks without delay.
Since payments are now direct deposited and/or loaded onto debit cards, Social Security continued processing payments during the 2013 shut down with fewer employees than were needed to mail benefit checks during the 1995 shutdowns.
WHAT HAPPENS TO MY SCHEDULED SOCIAL SECURITY DISABILITY HEARING IN A GOVERNMENT SHUTDOWN?
Most likely, hearing offices will continue to hold Social Security Disability and SSI hearings if a shutdown occurs. During the 2013 government shutdown, the Office of Disability Adjudication and Review (ODAR) still held previously scheduled hearings, but staffing was limited to Administrative Law Judges (ALJs), medical experts, vocational experts, and security personnel. New hearings were not scheduled. Lack of support personnel caused delays in exhibiting files and decisions were not written during the shutdown. So, if a claimant was waiting for an already scheduled hearing, it in most cases proceeded and was decided. But, the writing of the decision did not take place, so if benefits were granted, there was a further delay before benefits were paid since the decision was not actually formally written until the shutdown ended.
WHAT HAPPENS TO MY SOCIAL SECURITY DISABILITY APPLICATION IN A GOVERNMENT SHUTDOWN?
During the Clinton-era shutdown, new Social Security claims were not being processed because the agency furloughed 61,415 employees. As the shutdown wore on, the agency adjusted its plan and recalled workers to start processing new claims. Whether new claims are processed at all or with a delay due to fewer workers will depend on how many employees the SSA decides to maintain and how many they decide to furlough.
The SSA’s 2013 government shutdown contingency plan stated that new and pending Social Security applications would continue to be processed as well as requests for appeals. However, because these functions are carried out by the state Disability Determination Offices, each state will decide whether to continue these operations or stop them. The most likely scenario is that applications will be processed but with some delay. The delay will be dependent on how many employees are retained and how long the shutdown lasts.
Whenever a threat of a shutdown looms, I monitor the situation checking Social Security's contingency plan often. If the government shuts down again, I will be in touch with all of my current clients to advise them on how this situation will affect them depending upon the current status of their claim.
How much will the child support payment be?
The breakup of any marriage is an emotional and often confusing time.
Many questions, thoughts, concerns, and fears you never knew you had start bubbling up to the surface.
You're looking for some clear guidance and answers to help you start the process of moving on to your new tomorrow.
I'm Loyd Bourgeois, an attorney practicing family and divorce law out of Luling, Louisiana and I'm here to help you get some answers to your frequently asked divorce and family law questions.
How much will I get/pay in child support?
This is another frequently asked question of parents going through a divorce. Unfortunately, there are no easy answers to this because each case is fact-specific.
Typically, courts will look at the gross income of both parents, how many children are involved in the divorce and other special circumstances in determining the amount of child support.
A person's expenses are not part of the equation in determining child support because if that was the case, you could make your expenses match what you're earning to drive down your child support. Would not be fair to your children.
We want you to have our free divorce and family law guide, 16 Sensible and Smart Actions to Help Guide You in Planning and Preparing for your Louisiana Divorce. Just click and complete the request form on the page, we'll email you this free important information.
Who gets custody of the children?
The breakup of any marriage is an emotional and often confusing time.
Many questions, thoughts, concerns, and fears you never knew you had start bubbling up to the surface.
You're looking for some clear guidance and answers to help you start the process of moving on to your new tomorrow.
I'm Loyd Bourgeois an attorney practicing family and divorce law out of Luling, Louisiana, and I'm here to help you get some answers to your frequently asked divorce and family law questions.
Who is going to get custody of the children?
This is one of the most frequently asked questions of parents going through divorce, "Who's going to get the custody of the children?"
In Louisiana, custody can be determined primarily two ways; one is by consent of the parties where you and the other spouse agree on an arrangement that benefits and is beneficial and works for both of you and the children.
The other way is having a judge decide custody.
If the parents can't agree, which is not always possible, it will go to court and a judge will make a determination based on the best interests of the child.
Do I have to sue the other party after a wreck?You have a NOT to sue!!Wait...did they really say that?Yes, we did!You have the right not to sue in your personal injury case. And more often than not, it’s best you only take your case to court when you absolutely have to because the other side or their insurance company is refusing to pay.This is true even if you were seriously injured and not at fault. Why?First of all, going to court is no guarantee of maximizing what you receive. And in many circumstances, going to court may actually reduce the total reward you receive because costs are increased.Secondly, taking your case to trial will involve a lot of stress and time lost, and may even result in additional legal fees to prepare and represent your case that exceed any additional reward you receive.So we always make sure to advise you on the full cost of going to trial vs. settling before deciding to go to court.And lastly, some personal injury attorneys simply love to go to court to be in the limelight, garner press for their firm, or worse, simply to satisfy their egos. But that strategy can put your reward at risk entirely!We always advise clients to settle and move on with their life whenever fair compensation is being offered.
Of course, should liable parties refuse to pay fair damages, we’re ready to go to trial to defend your just compensation. But in the vast majority of cases, this simply isn’t necessary.If you have questions, please don't hesitate to let us know. Call us at 985-240-9773.