Social Security Disability Claims

Episode Notes

Transcript

Workers Comp Matters

Social Security Disability Claims

10/30/2017

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Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers’ comp matters.

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Alan Pierce: Welcome to Legal Talk Network and Workers Comp Matters. This is Alan Pearce, attorney at Pierce, Pierce & Napolitano in Salem. We are bringing you another edition of Workers Comp Matters with our guest, Janice Skillings-Goff.

Before we get into our topic today, which will be Social Security Disability and Workers’ Compensation, we want to thank our sponsor Case Pacer, practice management software dedicated to the busy trial attorney. To learn more, go to  HYPERLINK “http://www.casepacer.com” casepacer.com.

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Well, as I mentioned, today we are going to talk about Social Security Disability. Jan is a very experienced workers’ comp and Social Security Disability attorney. She practices coincidentally right here in Salem, Massachusetts, Law Offices of Janice Skillings-Goff and she is also a counsel to another law firm that we know and love, Pierce, Pierce & Napolitano, also here at 27 Congress Street in Salem.

And Jan, first of all, I would like to welcome you to another edition of Workers Comp Matters.

Janice Skillings-Goff: Thank You Alan.

Alan Pierce: Okay Jan, you handle a fairly large caseload of Social Security Disability claims, let’s begin by just a basic overview of who might be entitled to Social Security Disability and how they begin the process of trying to collect Social Security Disability benefits?

Janice Skillings-Goff: People who might qualify for Social Security Disability are people who have long-term injuries. An injury that is less than 12 full consecutive months long does not qualify for disability, even though the claimant might be totally disabled during that time period.

So, if the disability, which means the inability to engage in substantial gainful activity, which is a term of art, a legal term, if that disability is 11.5 months long, the person does not qualify, but many workers’ comp clients, in other words injured workers, have a disability that lasts sometimes years, and we always recommend that in that case apply for Social Security Disability, you can get both at the same time.

Alan Pierce: What are the eligibility requirements; I know you have to have a certain amount of time paying into Social Security through your payroll deductions and you also need to — there’s a waiting period or almost a deductible, so to speak, is there not?

Janice Skillings-Goff: There is. If you have a traumatic injury you can certainly apply right away, you don’t need to wait, but the first five full months are non-payable and that means six months after you became disabled your benefits can start.

In terms of eligibility, one has to have enough of what they call work credits or quarters and it depends on the worker’s age and they do also require — so the older you are, the more work credits you need. You also need to have five out of the last ten years have worked during that time. Doesn’t have to be all consecutive, you might have had a couple of years off where you were injured or in school or doing something else, but as long as you have five full years of the last ten, you can then apply the credits that you have accrued over your lifetime of working to then have it paid back for you, almost the same as an insurance policy would.

Alan Pierce: And what would the benefit be, if somebody is 42 years of age, they receive an industrial injury, they are going to be out of work a year or more, they have got the necessary quarters, what level of — normally we think of Social Security, you retire at 65 or 66, early retirement obviously is 62, what does somebody who qualifies for Social Security Disability obtain? Do they get the benefit they would have gotten at full retirement age?

Janice Skillings-Goff: Often that benefit can be even more than their retirement benefit. Obviously if they retire at the full benefit age, which would be — in my case it would be 66 years old, it could come out to about the same, depends on how much has been paid in over the worker’s lifetime. So that lower paid workers are going to have lower Social Security Disability, higher paid workers are going to be higher. The highest paid workers may end up having a benefit that’s a bit higher than their full retirement.

(00:05:14)

Alan Pierce: All right, we know if somebody gets injured on the job, the employer reports the injury to the workers’ comp carrier. The carrier then investigates, begins payment or denies the claim. The case, if it’s denied, goes to the state agency that administers workers’ comp for a determination by a comp judge or a commissioner or whatever they call them. How does one initiate and how does one then carry through with a Social Security claim that might be denied?

Janice Skillings-Goff: First off, you have to actually complete an application and there are different ways to do this. It can be done online by going to  HYPERLINK “http://www.socialsecurity.com” socialsecurity.com and following the chain through to disability.

I know that this won’t be popular with the Social Security Administration for me to say this, but I don’t recommend doing that. Couple of reasons, you cannot backtrack and fill in information on an earlier page when you do it through the computer. Once you complete a page, you are done, you have to move on to the next page. It’s a bit cumbersome and I have had so many clients complain that once they hit Send and they believe their application is complete, it actually is not received by Social Security.

So, what I recommend is make an appointment, either in person or on the phone, with a Social Security representative and actually have them enter your basic information, name, address, Social Security number, where you have worked, what’s wrong with you, and where you have gone to the doctor. And then they will give you usually a multipage form to take home to explain a little bit further about how your disability impacts your daily life. Certainly, an attorney can help you with that and take over from that point on.

Alan Pierce: Okay, so what’s the timeframe, once the Social Security gets the application, they send for the medical records or do you recommend sending medical records directly to Social Security or a combination?

Janice Skillings-Goff: That’s an interesting question and it depends on the claims person at Social Security who is actually processing your claim. If you try to give them your medical records, they often say we don’t want it. We want to order it ourselves. Maybe they are afraid that it would be incomplete, I don’t know. They do have the claimant sign a release to get the records, no harm in giving them your records.

What I recommend is get an attorney. Let the attorney order the records. Let the attorney read the records and then give Social Security what they think are the important salient records that will support your case.

Alan Pierce: Okay, Social Security gets the records, they approve the claim, how long does that take generally?

Janice Skillings-Goff: About 30% of applicants get approved right away.

Alan Pierce: What’s right away, a month, two months?

Janice Skillings-Goff: It could be a month or two months. Social Security isn’t really held to a timeline, but roughly one to two months. And then the claim is sent to Baltimore to be processed, in terms of figuring out, calculating the benefit amount, and about a month after you receive your approval, you actually get your benefit. So that’s about 30% of the claims.

Alan Pierce: Are the benefits retroactive?

Janice Skillings-Goff: Yes, they can be retroactive depending on the date of injury. If you take the date of injury and count forward, you cannot receive actual benefits. And let me clarify that, when I say date of injury, I mean date of disability, when disability began, and the claimant left work and couldn’t work anymore. It’s six months after that. However, for those people who apply a little bit down the road from when they became disabled, you can only go back one year before the date of application, so it depends on where that falls.

Alan Pierce: Is there a time limit within which you have to file a claim, statute of limitations, for lack of a better term?

Janice Skillings-Goff: Not exactly; however, a claimant remains insured for purposes of Social Security for five years after they stopped working. And what I mean by insured is that the disability itself has to have begun during that five-year window after work stopped. And if you wait beyond that window, you can still apply, but you need to go back in time and show that one was disabled during that window and continuously disabled afterwards.

Alan Pierce: All right, I notice a number of our clients, when they go in to apply for Social Security Disability, which I think for this question further we will call it SSDI, they are oftentimes given another application for something similar to that called SSI or Supplemental Security Income and they are confused by that. It’s a dual application, two types of benefits that seem to come from the same source, have the same letters and oftentimes people may qualify for SSDI, but not qualify for SSI. Just quickly, what’s the distinction and difference between those two programs?

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Janice Skillings-Goff: Okay Alan, SSI or Supplemental Security Income is basically for people who do not have enough work credits, perhaps they have not worked enough in their lifetime, they are disabled and in addition they are low income. And I like to refer to it as welfare level poverty. They need to have less than $2,000 in income and assets. So, anyone who owns a home would not qualify.

Alan Pierce: So Social Security Disability has no — I guess they call it a Needs Test, you could be a multimillionaire and still be eligible for Social Security Disability; obviously not for SSI, correct?

Janice Skillings-Goff: That is correct.

Alan Pierce: Okay. So, before we take a break, let’s just quickly talk about the process. The application is done, Social Security Administration gets or obtains on its own the medical records, the determination comes back, one, two or so months later, and it’s denied. And it’s denied usually for a reason that a review of the records indicates while you may have a disability, we, the Social Security Administration, believe you can lift 10 pounds or you can do modified work. What is the process for challenging that denial and what’s the attorney’s role in that and how does the attorney get paid?

Janice Skillings-Goff: Okay. The attorney is probably someone you should hire immediately and not wait. But at any rate, the attorney will then file an appeal, which basically just says we disagree with this determination. The claimant is unable to work. And there’s a form to fill out that talks about your updated medical situation, who you have had recent treatments with since you applied.

Often people who are denied the first time get denied the second time. After the second denial there’s a request for hearing before an Administrative Law Judge. Unfortunately, it can be one year before you actually see the judge and so it’s really a long waiting game. And your attorney will then write a brief, prepare you to testify, make sure the judge has all the medical records and reports from doctors, specific reports requested to prove disability and will attend with you at the hearing.

Alan Pierce: And how is the hearing conducted?

Janice Skillings-Goff: The hearing is — for this area, the Salem area, it’s done in Boston at a hearings office before a judge. It’s informal, small room, the only people present are the judge, the claimant, the attorney and possibly a vocational expert or in some cases a doctor, no one else. There’s no one else in the courtroom. Fairly informal, ranging in time from maybe 30-45 minutes long, and the claimant is asked a series of questions.

Alan Pierce: And the judge takes on the role of the questioner. So, he or she is both the judge as well as in effect the — not so much the attorney for the government, but certainly the person drawing out the information and the claimant’s attorney, generally at least our experience has been, does what’s known as not really cross-examination, but additional examination to bring out something the judge may have missed.

Janice Skillings-Goff: That is correct. In my case I usually ask a lot of questions. But the judge, depending on the judge, some will just get the basic name, address, and then turn it over to the attorney; many of them ask quite a few questions before they turn it over to the attorney.

Alan Pierce: And these questions pretty much revolve around activities of daily living, how the injury affects them occupationally as well as socially. Do younger workers have a more difficult burden than older workers and does Social Security actually in their regs make a distinction between younger and older workers?

Janice Skillings-Goff: They absolutely do. There’s something that is loosely known as the grids, where there are different age levels and different requirements for each age level. So, anyone under 45 years old is considered a younger individual.

It’s harder to get on Social Security the younger you are, because there’s an assumption that you are in better shape to do some form of work, and it’s also harder to get on the more educated you are, because the assumption is that you might be able to do some form of sedentary work, even if you couldn’t do your old job, which was more difficult.

Alan Pierce: All right, I think this might be an appropriate time to take a short break and when we return on the other side of a few messages, we will bring the area of Social Security Disability into the workers’ comp arena and see how these two systems complement and compete against each other on occasions.

So, we are going to take a brief break and we will be right back with our guest Janice Skillings-Goff on Workers Comp Matters.

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Alan Pierce: And welcome back. This is Alan Pierce on Workers Comp Matters with attorney Janice Skillings-Goff, where we are walking through in relatively short time the myriad of complexities sometimes that face our clients in navigating the Social Security Disability system.

So, where we left off before our break is we have either had somebody approved for SSDI or they have gone through the hearing and we presume that the Administrative Law Judge will award benefits. What statistically are the chances, just sort of generally, of somebody prevailing at the judge’s level as opposed to the earlier levels?

Janice Skillings-Goff: I don’t have a precise statistic, and of course it varies from state to state, but in this northeast region of New England, it used to be much, much higher. Judges seem to be more conservative now. If I had to take a guess, I would say 87-90% prevail at the hearing level.

Alan Pierce: Okay. Now, somebody is on workers’ comp and they are getting a percentage of their average weekly wage as either a temporarily totally disabled or permanently totally disabled worker. So, here in Massachusetts a permanent and total disability worker would get 66 and two-thirds percent of his or her average wage.

So, let’s assume the average wage was $1,000 and the person is getting $667 a week. Social Security Disability of course is a monthly benefit rather than a weekly benefit, 4.3 weeks in a month for calendar and Social Security purposes. So how is the benefit calculated for SSD and then how is it calculated if somebody is collecting workers’ comp?

Janice Skillings-Goff: I hope you are not going to make me do calculations Alan, because I don’t have a calculator.

Alan Pierce: I am not going to hold you to the dollars, but just the concept.

Janice Skillings-Goff: So Social Security Disability, as I mentioned earlier on the first half of this segment, is calculated based on the claimant’s earnings over their lifetime. It’s actually quite a complex formula, but the emphasis is on the best of the last five years that they worked.

Now, the way it interfaces with workers’ comp is that your workers’ compensation benefit for any given month, plus the Social Security together cannot exceed 80% of your average current earnings, which could correspond to average weekly wage for workers’ comp purposes, or it could vary slightly from that. But the two together can’t exceed 80%.

Alan Pierce: Okay, so the worker getting 66 and two-thirds, that leaves a gap of another 12 or so percent and that would be the — Social Security benefit would be reduced and you would get a benefit that is equal to the difference between the workers’ comp and the 80% of the average current earnings, which I think for our purposes we call the ACE, 80% of ACE is a math calculation, you take the comp rate, you multiply it by 4.3, you measure that against the ACE and you get the difference up to 80%.

I know there’s also another very important reason to get on Social Security Disability other than the monthly benefit, even if it is greatly reduced by the workers’ comp, and that is health insurance.

Janice Skillings-Goff: Right. Once an individual has been deemed to be fully disabled for two years or 24 months, they are then eligible for Medicare, which can be a very big benefit. Medicare may cover other illnesses and ailments that are not covered by the person’s workers’ comp insurance, because they may not be injury related.

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Alan Pierce: Yeah, another thing to point out is that even though Social Security Disability uses a similar metric to determine total disability than does workers’ comp, workers’ comp claims and disability claims under workers’ comp, the industrial board, the insurance companies are looking for the effects of the work injury, and it’s oftentimes the work injury that prompts the Social Security Disability claim. But you don’t want to overlook the fact that a Social Security Disability award can encompass more than just the work injury.

So, if you might have a work injury that is to your wrists, but have substantial other non-work-related conditions, that may not impact these entitlement for workers’ comp, but how does that help your Social Security claim?

Janice Skillings-Goff: Well, Social Security looks at every ailment from which the claimant suffers, and the standard is whether an impairment or a group of impairments together render the person disabled. And a great example is after a worker has been out of work for a long time and is in chronic pain, on medication, and possibly not sleeping, they often become depressed and anxious and certainly psychiatric treatment for that can be submitted along with, for example, back injury treatment to bolster the Social Security claim.

Alan Pierce: Yeah, you may have somebody with an underlying diabetic condition and they might otherwise be a surgical candidate, but because of the risks associated. So, it’s great to keep in mind that when you are applying for Social Security Disability or you are telling your client to, you don’t want to just limit it to the work injury that put you out of work, but any medical condition that pre-existed the work injury or came up subsequent. One thing we didn’t cover is how do you get paid?

Janice Skillings-Goff: Social Security, the Social Security Administration controls how the attorneys are paid. It’s same for everyone. It’s 25% of retroactive benefits not to exceed $6,000. So, a person is eligible to collect six months after they became disabled, maybe it’s two years down the road that they actually get in front of a judge, that retroactive money is what the attorney’s fee is based on and the Social Security Administration holds the money out from the retroactive benefits and sends a check to the attorney.

Alan Pierce: And of course, if the claim fails you are not allowed to collect a fee.

Janice Skillings-Goff: Correct.

Alan Pierce: All right. So, one last question before we close, a client is on workers’ comp, is getting $600 a week, give or take, he is getting a reduced Social Security benefit of let’s say $600 a month instead of $2,200 a month, because of the ACE and the 80% of the ACE, and the injured worker enters into a lump sum settlement with the workers’ comp insurer.

How does Social Security Administration treat the monies that are paid in lump sum settlement and what are the ways to treat those monies in the settlement documents that is most beneficial for the injured worker?

Janice Skillings-Goff: The workers’ compensation attorney should and really must write the lump sum settlement papers in such a way that the settlement, although it’s given to the worker, the employee all in one lump sum, is actually spread out over the worker’s lifetime on paper. So, you figure out by actuarial tables how long the person is supposed to live, and you divide the settlement that way, so that it comes out to a much smaller amount, depending on the amount of the settlement and how old they are it comes out to a much smaller amount per month than they were probably collecting on workers’ comp; therefore, not gouging, if you will, the Social Security payment as much or perhaps not at all.

Alan Pierce: Yeah, at least here in Massachusetts we call these allocations or language the so-called Sciarotta Allocations. The Sciarotta case is a case in which a Federal Court upheld, and I think the regulations somewhere in the Social Security Act provides that if you designate that the net proceeds after attorney’s fees and expenses to the injured worker, let’s say it’s a $100,000, instead of offsetting it at $600 a week or $30,000, that means it would be an offset of three plus years after the settlement. If that worker is 45 five years of age and has a life expectancy to age 78, you take those number of months, divide the $100,000 by those months, it may come out to $200 or $300 a month as opposed to $600 a week, that pretty much would reduce, if not totally eliminate, the workers’ comp offset.

And I know you in your practice and we in our practice always add those Sciarotta Allocations, even if the person is not on Social Security Disability or may have applied, or may have been denied and may apply again. You don’t want the monies collected for workers’ comp to end up being deducted from a future award.

Janice, thank you very much for joining us on this edition of Workers Comp Matters. If somebody wants to contact you, how might they do that?

Janice Skillings-Goff: They can contact me at Law Offices of Janice Skillings-Goff, 27 Congress Street, Salem, Massachusetts.

Alan Pierce: All right. Well, once again I would like to thank Janice for joining us on Workers Comp Matters. For those of you listening, please keep listening. Rate us on Apple Podcast and tune in to our next show.

Otherwise, go out and make it a day that matters.

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Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by attorney Alan S. Pierce, where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network, your only choice for legal talk.

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