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News and EventsThe close of 2006 brought four important litigation victories to Margolius, Margolius and Associates. Each case represents an important victory in employment and civil rights.  In Sicklesmith v. Chester Hoist, the Court of Appeals for the Seventh District Court of Appeals reviewed a trial verdict in this case. The employer brought multiple challenges to the jury verdict and was requesting reversal. The Court fully upheld the trial court's verdict and the underlying disability case law analysis. The firm's lead trial attorney, Andrew Margolius, represented Clarence Sicklesmith. In the case, the employer had refused to allow Mr. Sicklesmith, a long term, dedicated employee, to return to work following a leave of absence. The employer asserted Mr. Sicklesmith could not perform the essential functions of his job as required by law. Mr. Sicklesmith's employer disregarded or simply denied his reasonable accommodation requests. The jury had found the employer in violation of Ohio's employment discrimination -disability statute and awarded Mr. Sicklesmith $282,000 in damages. The Court of Appeals opinion, cited above in pdf format, fully affirmed the jury verdict and rejected the employer's requested issues for reversal, including asserted errors regarding punitive damages, burden of proof in disability cases, application of corporate attorney client privilege, and union grievance evidentiary issues. The Court specifically noted important cross examination questions by Mr. Margolius against the employer's representative to affirm the trial verdict. In Williams v. Case Western Reserve University, the Court of Appeals for the Eighth Appellate District reversed a summary judgment in favor of the employer, finding that the Plaintiff/employee's employment rights warranted a trial. The professor in question moved to Cleveland after being offered a three year employment contract. He was discharged at the end of his 1st year and the University attempted to give him administrative duties. A grant Dr. Williams had intended to work on was not funded by the National Institute of Health and, moreover, circumstances demonstrated funding issues were at the heart of the premature discharge. The case provides grounds to assert that implied contract rights require just cause for termination prior to the expiration of the stated employment term. Attorney Andrew Margolius represented Dr. Williams in the action. In OCRC and Harper v. AMHA, the firm established key fair housing precedent on the issue of hostile environment in rental housing. The Harper family claimed it had been racially harassed by neighbors, even after alerting the landlord. The landlord's inaction resulted in increasing hostility and overt threats of violence and racial epithets. The case was originally dismissed by the Ohio Civil Rights Commission but was reversed when attorney Andrew Margolius convinced the Commissioners of the fundamental housing rights at stake in the matter. The Common Pleas Court dismissed the action finding this was a neighborhood dispute and that Ohio did not recognize a landlord's duty to intervene under a hostile environment housing cause of action. The Ninth District Court of Appeals reversed the finding in a landmark fair housing decision and firmly established the hostile housing environment cause of action in Ohio. The precedent setting case follows other lead precedents in fair housing in Ohio established by the firm. Attorneys Andrew Margolius and Emily Warren represented Ms. Harper and Fair Housing Advocates Association. In Newcomb v. Hostetler Catering, the Court of Appeals similarly reversed a summary judgment decision and concluded that the Plaintiff's rights to seek counsel regarding the loss of employment benefits warranted a jury trial. The Court expanded public policy protection preventing a discharge to knowledge of the employee seeking counsel as unjust grounds for discharge. The previous law stated that the employee must have already consulted with an attorney. In January of 2007, the firm represented Larry Doss in a trial against the City of Cleveland. Mr. Doss was pursuing his workers compensation rights at trial. The Plaintiff's physician fully supported Mr. Doss and the jury unanimously held in favor of the Plaintiff. Lead counsel on the case: Paul Newendorp. In February of 2007, Marcia Margolius was interviewed and quoted by both the Columbus Dispatch and Cleveland Plain Dealer newspapers concerning problems in Social Security disability procedures. Marcia has also been consulted concerning procedural changes requiring pre-hearing requirements and a potential unlawful evidentiary burden imposed upon claimants. Marcia Margolius continues to serve as Sixth Circuit Representative of NOSSCR and as a NOSSCR Board member. NOSSCR is the lead organization for attorneys representing Social Security claimants. Marcia has previously served as president of this organization. On December 1, 2006, Andrew Margolius spoke at a seminar sponsored by CELA regarding the use of demonstrative aids at trial. The presentation occurred at the Cuyhoga County Bar Association offices in Cleveland and featured the use of powerpoint presentations, time chronology programs, and document cameras. Marcia Margolius spoke at the National Organization of Social Security Claimants' Representatives in Washington D.C. in May of 2005. Andrew Margolius serves as Treasurer of the Ohio Employment Lawyers Association. This attorney organization is focused towards representing the interests of employees in the workplace. Mr. Margolius had formerly served as the longstanding President of the Cleveland Employment Lawyers Asscoiation. Michelle Bompiedi has recently married and has changed her name to Michelle McFarland.Many have requested copies of Marcia Margolius' key testimony before the United States Senate subcommitte investigating delay and inequities in the Social Security disability process. The following testimony was delivered to the Senate Committee on Governmental Affairs on March 29, 2004.
First, I would like to thank Senator Voinovich for initiating this forum to address delays in the processing time for Social Security hearings and more specifically, the backlog at the Cleveland Office of Hearings and Appeals. I would also like to commend the Commissioner for her participation. [Note: Representative Stephanie Tubbs Jones also conducted an important hearing concerning problems with the Social Security disability process. Marcia Margolius provided testimony on delay and procedural issues at the hearing at the request of Rep. Tubbs Jones.]
Under the current system, people with severe disabilities are forced to wait years for a final decision. This delay is harmful to the individual and his or her family in a time of great need. But the delay not only hurts the disabled individual, it also damages public confidence and the integrity of the system.
In September, 2003, Commissioner Barnhart announced a plan to reform the disability claims process. These initiatives are meant to bring an aging bureaucratic system into the 21st century. As disability advocates, I and my colleagues, support all efforts to reduce unnecessary delays for claimants and to make the process more efficient. However, any changes must ensure fairness and protect the rights of people with disabilities.
The Commissioner has identified several changes at the front end of the process that can have an immediate beneficial effect for new applicants and will improve the backlogs and delays later. Hopefully, implementation of the electronic folder will move forward with all possible speed. EDib should reduce delays from handing off the file and will allow immediate access by any component of Social Security working on the claim. On line, read-only access should also be arranged for counsel so that the constant changes in the development of these cases are available to all participants. The Quick Decision Process for claimants who are obviously disabled can not happen soon enough. The process benefits everybody and is consistent with the overall purposes of the Social Security Act.
Other proposed changes raise greater challenges to the fairness owed to our disabled citizens. The new position of Reviewing Officer is very promising as it provides the necessary "point person" to help expedite critical cases. However, a separate appeal from the RO, who is located at the Office of Hearings and Appeals, to the ALJ, also at the Office of Hearings and Appeals, will be confusing to the public and ends up looking like nothing more than a replacement of reconsideration, and perhaps a counter-productive hurdle to the process. One appeal from the initial stage should cover review by both the RO and the ALJ, and avoid potential additional time delays to the system.
The record should not be closed after the ALJ's decision. Closing the record is not beneficial to a process meant to be informal, non-adversarial and with the primary overarching purpose of seeking the truth. This is not meant to say that records should not be submitted as soon as possible; they should and attorneys should strive for this efficiency. But submission is not always in the attorneys control, or for that matter, in the unrepresented claimant's control. Claimant's may be mentally impaired and unable to effectively assist in case development. Moreover, a claimant's health is not static - hospitalizations occur, specialists get involved, and diagnoses are definitively reached. Means for submission of such important medical information can't be foreclosed in order to protect the claimant and the integrity of the determination process.
An underlying issue we must face is the balance between procedure and efficiency, and the potential prejudice arbitrary or administrative procedures may cause towards a just Social Security disability determination. There are merits to both efficiency and due process allowances, yet these goals sometimes conflict.
Continuation of the Appeals Council protects claimants. The current review process satisfies claimants' need to have oversight of the ALJ decision. A major basis for remand by the Appeals Council is not submission of new evidence, but legal error committed by the ALJ. The Commissioner should maintain this process for rectifying errors administratively, rather than forcing federal court review. This review stage is vital to a claimant's rights.
Cleveland's immediate problem is that there are disabled people with urgent needs that can not wait until October, 2005, when the Commissioner's plan is projected to be fully operational. People who are later adjudicated to be disabled under Social Security standards in this region are losing their homes, having utilities shut off and are losing health coverage because of delays in Social Security decisions.
Cleveland has the largest hearing backlog in a six state region. The decisions are generally fair, but the length of time to get a hearing and the processing time after the hearing is extreme.
The fundamental problem is one of staffing, there are just not enough judges or support staff to process the 11,000 plus cases waiting for hearing. When I first started in 1982 there were 18 judges. With a higher caseload, Cleveland has currently has 8 judges with the promise of 2 more. However, judges are only part of the solution. Support staff is based on the number of judges, not the number of cases, so, as long as there is a backlog of over 11,000 cases, the delays are endemic.
Voter Registration
Margolius, Margolius & Associates is actively involved in voter registration drives in the Cleveland area. We recognize that the only way injured and disabled workers can protect their rights is by registering to vote and using that privilege wisely.
We sent out a newsletter and will publish on this web page the candidates' positions on Workers' Compensation and Social Security issues.
Past Speeches
Marcia Margolius spoke at the Lorman Business Center Workers' Compensation Program. Her topic was "The Interplay of Workers' Compensation and Social Security Disability." Marcia spoke with vocational expert Daniel Simone on cross examination of the vocational expert at the National Organization of Social Security Claimants' Representatives Seminar in San Diego. |
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Cleveland and Columbus, Ohio Social Security Lawyers |
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