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“Magic Words” That Can Give Injured Workers Hundreds of Thousands of Dollars More in a Workers’ Compensation Case

Friday, 22 July 2016 10: 04
Written by Joni B. Bailey
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workers compensation and social security disability

Many of my Southern Illinois disability clients need help with a claim for Social Security Disability Insurance benefits after being injured at work. They usually have questions about the differences between Workers Compensation and Social Security Disability Insurance.   This blog will address some of the questions that almost always come up.  An earlier blog covered some of the same questions.


As a Southern Illinois Social Security attorney, here are some questions I am almost always asked.

How do I know if I should file a Social Security disability insurance claim?

You can’t work.  If your impairments and work background will prevent you from working in your past job or any regular job for 12 months or more you should file a Social Security Disability Insurance claim.

When should I file my Social Security disability insurance claim?

Within 17 months of the injury.  If you have been out of work for more than 12 months you should probably file your Social Security disability insurance claim, because if you wait more than 17 months from the month of your injury you could miss out on months of benefits and months of Medicare coverage.

When should I get help with my Social Security disability insurance claim?

When your claim has been denied at the initial level.  Getting assistance at the time the application is filed is a good idea because the information provided at that time is critical, and the Claimant probably will not realize the significance of the forms he or she is filling out.  By the time the claim has been denied at the initial level it is definitely time to get professional help with a Social Security Disability Insurance claim from a Southern Illinois Disability attorney.

What does the Social Security Administration need to know about my workers compensation claim?

Everything.  In April 2015, the Social Security Administration clarified the regulations concerning submission of evidence in disability claims, explicitly requiring the Claimant to “submit all evidence known to you that relates to whether or not you are blind or disabled. This duty is ongoing and requires you to disclose any additional related evidence about which you become aware.” 20 CFR 404.1512 (a) through (c).

This regulation means what it says: The Claimant or the representative must notify the Administration of the workers compensation claim and submit the pleadings, depositions, independent medical examinations, vocational evaluations, functional capacity assessments, and description of modified job duties if they are available even if this evidence is unfavorable to the Claimant’s theory of the case.  A Claimant or a representative who fails to do so is subject to serious penalties. See this earlier blog on the topic.

Does it matter whether my workers compensation claim is settled or is resolved by an arbitrator’s decision?

Yes. If your workers compensation case is settled by an agreement, your attorney can negotiate on your behalf to include language that spreads a lump sum settlement out over your natural life. This language will not be in an arbitrator’s decision. With the “spread language” the injured worker will often receive a higher monthly benefit from Social Security if the Disability Insurance claim is approved.

How does a workers compensation award affect my Social Security disability benefits?

It can reduce your monthly benefits. As a matter of public policy, Social Security Disability Insurance benefits are reduced when a worker is also receiving money from an employer for an injury sustained at work so that “receipt of wage-replacement benefits does not create a disincentive to return to work.”

What are the “magic words” that need to be in the settlement agreement to keep my Social Security benefit as high as possible?

Spread language.  This language will describe the worker’s age and life expectancy, the source of the official statistics for that life expectancy, the gross amount of the settlement award, the attorney’s fees and costs associated with that settlement, the total number of months remaining in the worker’s life, and the monthly payment that the net settlement divided by the number of months left in the worker’s life would result in. The workers compensation attorney should be very familiar with this language from his or her continuing legal education and experience.

For a young worker, the difference between a settlement with spread language and a decision without spread language could be hundreds of thousands of dollars less money in the workers’ pocket between the injury date and the full retirement age. There is an excellent illustration of this by Attorney Jon C. Walker in Chapter 7 of the Illinois Institute for Continuing Legal Education publication, Workers' Compensation Practice (Illinois) 2015 Edition.

(It is generally the responsibility of the workers compensation attorney to negotiate and review the settlement agreement, not the Social Security Disability Insurance claim representative.)

My workers compensation lawyer mentioned a Medicare set-aside agreement, why should I agree to that?

Many people do not realize that Medicare can deny coverage for medical treatment in many different circumstances, for example, medical treatment that resulted from a workplace injury.  See the Medicare secondary payer statute at 42 U.S.C. §1395y(b)(2) which provides that payment may not be made (unless there are exceptions) with respect to any item or service to the extent that “payment has been made or can reasonably be expected to be made under a workmen’s compensation law or plan.”

The worst-case scenario would be an injured worker who settled a workers compensation claim without getting appropriate approval from the Centers for Medicare and Medicaid services and later had to have surgery on the injured body part.  If Medicare or Medicaid refused to pay for that surgery, he would have to pay for it with his or her own money instead.  A fairly routine back surgery and related care could easily wipe out a family’s savings and push them into bankruptcy.

My workers compensation lawyer wants to handle my Social Security disability claim for me, is that a good idea?

Maybe.  If the workers compensation lawyer has handled several Social Security Disability Insurance claims and is willing to take the time to explain the process to you, there should be no problem. But if the workers compensation lawyer has little or no experience handling Social Security Disability Insurance cases, since there are many regulations and procedures that he or she may not be aware of, choosing the same lawyer to handle both claims could result in an unfavorable decision in the Social Security Disability Insurance claim.  In this case, a Southern Illinois Social Security Disability representative can work with the workers compensation lawyer to handle your claim for a better outcome.

Your Social Security Retirement, Survivors, and Disability Insurance benefits are one of the most valuable assets you have accumulated during your working life.  Asking the right questions and making the right choices can secure your financial future after you have suffered a serious workplace injury.  

Joni Beth Bailey is a Southern Illinois Social Security Disability attorney.


social security disability lawyer in murphysboro, il
 

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