Monday, April 23, 2012

When to Apply for Workers Compensation and Social Security Disability

Workers Compensation or Social Security Disability?  If you have been disabled by a work-related accident, and you have been advised or simply know that you will not be able to do any kind of substantial (full-time) work for at least twelve months, I urge you to consider applying promptly for Workers’ Compensation and applying for Social Security Disability benefits as well. 
What brings me to this topic is the situation of two recent clients who postponed their Social Security cases thinking they needed to get through their respective WC case before applying for Social Security.    Were they mistaken?  I must start by conceding that I do not practice WC law.  However, from my point of view, they did themselves a great disservice.  Their delay cost them thousands in potential recovery from Social Security, delayed their potential Medicare benefits and likely weakened their Social Security cases. 
Lost Benefits:
While there is commonly an offset between Social Security and WC benefits, the recipient of both benefits is ordinarily going to realize considerably more than the recipient of just one of these benefits. 
For example, on 4/12/2012, say employee Ted herniates 3 lumbar vertebrae while trying to lift drywall into his employer’s truck.  The injury prohibits him from lifting and carrying; he cannot stand up straight or stand at all for much of the day; and sitting causes shooting pains down his legs with numbness and tingling.  He will be disabled from his work and all other substantial work for a minimum of 12 months.
He applies for WC on 10/12/2012, but does not apply for his SSA benefits until his WC case is settled three years later on 10/12/2015. 
Question:  Did the postponement of the SSA application cost Ted anything? 
Answer:  ABSOLUTELY.  Social Security will only go back one year prior to the date of his application in affixing retroactive benefits.  Waiting one year would not have cost Ted anything, but waiting three years cost Ted 2 years of SSA benefits. 
 Question:  Since there is an offset between WC and SSA, doesn’t that mean that Ted would have  gotten the same amount even if he had gotten the award from SSA? 
 Answer:  No.  WC is governed by the individual states,  and the offset is not commonly 100%.  In  every state I am aware of, there is still a considerable percentage given above the offset.  In  general, a beneficiary of both programs should expect to receive a 15% better benefit if he is  receiving from both programs.  Furthermore, SSA ordinarily offers more than WC. 
Other benefits – Medicare and Dependent Benefits: 
• If disabled for greater than 29 months, the SSA beneficiary will be offered an option to enter the Medicare system; and
• If the SSA beneficiary has a disabled or minor-aged child or children, those dependents  may also be eligible to receive benefits. [These additional benefits are not part of the WC system.]
Question:  So, what if Ted  had two minor aged children and earned $50,000 a year; what would he expect to receive? 
Answer:  If he was found to be fully entitled to WC benefits, he may expect to receive $32,000 annually.  However, if he received from both programs, after the offset, he could expect to receive considerably more, likely around $40,000 a year for himself.  And, since he has two minor aged children, they may also expect an award of benefits as well. 
Weakened Case:
Another critical factor is that the strength of the SSA case will likely weaken as time goes on.  Getting benefits from insurance companies and from the government takes time and proof.  In both the WC and SSA case, the Claimant has the burden of proof.  Prior to the settlement of the WC case, the injured worker is generally given some level of medical care through his employer’s insurer.  While I find that these doctors commonly dictate reports that are heavily slanted to the benefit of the employer, at least their treatment provides some medical assistance to the claimant, and it also serves to document the disabling conditions.  But, once the WC case is settled, the insurer will stop providing access to care.   When this happens, the treatment stops and so does the documentation of the disability, at least until new doctors are secured; sadly, many in such a predicament, cannot afford to continue any form of treatment.  Thus, even though the Claimant’s condition has remained unchanged, the SSA case has been substantially weakened by the delay in filing.
For all these reasons and more, I urge those of you who have potential claims for both WC and SSA to consider your options and resources, and file wisely: file timely applications for both benefits.

By:  Tracey E. Cahn, Esq.