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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How will the COVID-19 pandemic affect my Louisiana legal case?
"How will my case be affected by the novel Coronavirus pandemic?"
This is the one question many are asking right now as this crisis continues to persist.
First, please know that we are actively and tirelessly working on all of our cases.
For the safety of our clients and staff, we are not having in-person client meetings at this time.
We are using phone, video-conferencing, and online document signing for client and new-client consultations.
Court closures have affected cases differently depending on case type.
How will the COVID-19 pandemic affect my Social Security Disability claim?
If your case is currently awaiting a decision or a hearing, SSA continues to process cases. If you are currently receiving monthly SSA benefits, those should continue without interruption.
For a more detailed explanation of the effects of the novel Coronavirus on Social Security Disability claims, read my in-depth blog post.
How will the COVID-19 pandemic affect my Personal Injury case?
We continue working on our personal injury cases and they are progressing as expected. If a lawsuit was filed or will be filed in your case, all deadlines and hearings have been extended during this crisis by order of the Louisiana Supreme Court and Governor.
For a more detailed explanation of the effects of the novel Coronavirus on Personal Injury cases, read my in-depth blog post.
How will the COVID-19 pandemic affect my Family Law case?
Unless your matter involves an emergency situation, all deadlines and hearings have been extended during this crisis by order of the Louisiana Supreme Court and Governor.
For a more detailed explanation of the effects of the novel Coronavirus on divorce, custody, and other family law cases, read my in-depth blog post.
How ill the COVID-19 pandemic affect my Long-Term Disability claim?
We continue working on our long-term disability cases and they are progressing as expected. If a lawsuit was filed or will be filed in your case, most deadlines and hearings have been extended during this crisis by order of the Court. If you are receiving monthly payments from an insurer, those should continue without interruption.
For a more detailed explanation of the effects of the novel Coronavirus on Long-Term Disability claims, read my in-depth blog post.
Here at LJBLegal we are continuing to work on all of our clients' matters. We are not meeting in person, but are available by phone to answer all of your questions. Give us a call at 985-240-9773
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.
Your case is not about a diagnosis.
People will talk about how long they have had the diagnosis, what medications they take or have tried, and how they know someone else with the same diagnosis who gets disability.
For most, this misses the point.
While a diagnosis is important, a diagnosis in and of itself will not support your disability.
The diagnosis is the starting point.
The focus of your case is establishing the limitations specifically caused by your medical diagnosis or treatment.
Limitations can range from slight - have to pause slightly when standing up from sitting too long - to more severe - have to lie down most of the day due to pain and medication side effects.
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.
Your case is about establishing what your limitations are and how these limitations prevent you from working your past job and/or other jobs.
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 an SSDI attorney helping clients nationwide, 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 being able to afford counsel of their own at all.
However, the judge will usually deduct what was paid for the divorce 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 Social Security Disability benefits?
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 disability application process, 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.
Many of our clients are very nervous about filling out these forms alone. Or they make mistakes on the forms that cannot be corrected during the appeals process.
Our firm will take away the burden and anxiety of completing and turning in your SSDI application and related disability forms.
When you hire us, all forms are submitted to our office and are gone over with you to make sure there is a clear understanding of your disability and limitations before we submit them to Social Security.
You will never have to submit anything or deal with Social Security by yourself.
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.
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 were successful in changing 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.” Now that they've tasted some victory after years of trying, we can bet they are not done in continuing to take away more of 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..”
- And here's the kicker! After extensive campaigning on the basis of reducing car insurance rates in Louisiana and AFTER the tort reform bill was signed into law, Jeff Albright, head of the Independent Insurance Agents & Brokers of Louisiana admitted that the law would do nothing to reduce insurance rates. It was all a "strategy" to help big business at the expense of the consumer.
Jeff Albright said that Louisiana's rates will most likely go UP now that the reform laws have passed.
Lowering auto insurance rates really wasn’t the point of the tort reform legislation signed into law last month, Albright said. After years of trying to pass bills that would limit the ability of individuals seeking recompense from injuries through the courts, tort reformers took a different tack.
“Strategically, we did something different this year in pressing forward on tort reform,” Albright told the panel meeting on a video conference. “Historically, we’ve talked about tort reform from the perspective of ‘we need to improve the business environment, and tort reform is an important part of improving the business environment.’ We all get that.
“But it is not really an issue that is going to excite Joe Six-Pack to call their legislator and press for tort reform. And so, the change in strategy was we kind of tied tort reform to automobile insurance this time.”
Is someone referring to you as "Joe Six-Pack" really looking out for your best interests?
While everyone can agree that Louisiana’s insurance rates are high and we all would welcome relief, giving up your rights isn’t the way to do it and turns out won’t have an effect on insurance rates at all.
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!
It’s not about lawyers “getting rich.” Everyone deserves the right to recover their medical expenses and lost wages after a serious car accident. You should not lose everything you have worked your whole life for just because someone was distracted on the road.
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!
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 Luling, Louisiana child custody lawyer Loyd Bourgeois, 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 a 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.
What is pain and suffering?
What is Pain and Suffering?
Pain and suffering is an element of damages that an injured person seeks from the person causing the injury. Pain and suffering is usually not available in breach of contract cases, disability cases, or property insurance cases.You know all too well that pain and suffering is part of the aftermath of an injury. Legally, though, "pain and suffering" describes the physical pain and emotional distress a victim endures as a result of a personal injury accident. Emotional distress (also called "mental anguish") can include depression, anxiety, insomnia, irritability, and more. Compensation for pain and suffering is more than money for physical ailments—it also entails mental and emotional pain. It is also above and beyond you actual money damages (like your lost wages, medical bills, etc.).You may be eligible for compensation for pain and suffering if you have:
- The loss of enjoyment of life
What Kinds of Things Does "Pain and Suffering" Include?When we say "pain and suffering," we're talking about a variety of ways that an accident can affect your life. Pain and suffering is a type of non-economic loss. Non-economic losses are intangible— and not clearly enumerated.You can recover pain and suffering damages for:
- Past and Future Pain and Suffering – This includes any past and future physical pain, mental anguish, discomfort, inconvenience, and stress.
- Embarrassment and Humiliation – This covers anything caused by the accident that could leave the victim feeling ashamed of their injuries, such as burns, paralysis, and amputation.
- Loss of Enjoyment of Life – This compensation is for victims who have lost enjoyment of the pleasures of life due to the accident.
- Disfigurement – This represents any scars or permanent damage caused by an accident or the surgery necessary to treat the car accident injuries.
- Loss of Consortium— The spouse of an injured victim can receive money for what is known as Loss of Consortium, which means that they've lost companionship and the ability to be close to their husband or wife.
How is pain and suffering compensation calculated?It's difficult to calculate how much a pain and suffering claim could potentially be worth because no two accidents or injuries are the same—and they can affect each person differently.The amount of money a person is able to recover for pain and suffering is most dependent on the evidence presented during your case, like testimony from medical experts, copies of medical bills, etc.When the insurance company or a judge or jury evaluates your case, they consider all evidence along with information such as:
- Your age
- The type of injury you suffered
- And how your injury affects your life—including how it has impacted your ability to socialize, enjoy hobbies, and complete household chores and other everyday activities.
At the end of the day, if you are like most people, there's nothing you wouldn't give to have your old, pre-injury life back again. Unfortunately, we cannot unwind the clock. Compensation for pain and suffering, however, attempts to make up for the many hardships you have to endure.
This is something we consider in every case and in advising you on an acceptable settlement or demand amount, both before and during litigation.
We hope this helps you understand how these damages are considered in your case. If you have any questions, please give us a call at 985-240-9773.