You Can Get Both Workers Compensation and Social Security Disability Insurance Benefits at the Same Time

 

Find Out When You Qualify for Both Workers Comp and Disability Benefits – And How to Maximize the Total Amount of Money You Receive.

 

Workers compensation and Social Security Disability Insurance, also called SSDI, are the two largest sources of disability benefits in the United States.

 

In 2015 state and federal workers compensation laws covered more than 135 million employees and paid $61.9 billion in total benefits to American workers.  Roughly half of that dollar amount went to medical care for injured workers. The other half went to cash benefits for disabled workers and the survivors of deceased workers. These cash benefits included temporary total disability, temporary partial disability, and permanent partial disability payments.

 

The Social Security Disability Insurance program is more than twice the size of workers compensation. In 2014 roughly 9 million workers with disabilities received SSDI benefits, along with another 2 million spouses and children under the age of 18. SSDI benefit payments for 2015 cost about $145 billion, with an additional $60+ billion paid in Medicare health care benefits for disabled workers under the age of 65.

 

You can get both workers comp and Social Security Disability benefits at the same time in Virginia. But you may not be able to get the full amount of Social Security Disability Insurance (SSDI) benefits if you’re receiving weekly workers compensation checks or settle your work injury case without the appropriate terms.

 

The purpose of this article is to explain how workers compensation and Social Security Disability work together, what to do to maximize the total amount of disability benefits you receive through both programs, and how to deal with common issues that arise in workers comp litigation when you’re receiving or seeking SSDI benefits.

 

Call me for a free consultation if you have any questions about how to get workers comp and Social Security Disability at the same time: 804-251-1620 or 757-810-5614. I’m a Virginia workers compensation lawyer and Richmond disability attorney representing injured and disabled workers throughout the state.

 

How Do Workers Comp and Social Security Disability Insurance Work Together?

 

Both SSDI and workers comp provide protection if you suffer a catastrophic work injury that leaves you disabled for more than a year. But they are separate programs with different purposes.

 

Workers comp is a state system funded by employers that is meant to provide medical treatment for work-related injuries and occupational diseases, and to compensate injured and sick employees when they lose income.

 

You are covered by workers comp from your first day on the job. I’ve represented many employees who were hurt within a few hours or days of starting a new job but were still entitled to benefits.

 

Workers comp covers both major injuries that result in lifelong impairments and minor injuries that cause just partial disability and resolve quickly. Medical coverage for treatment related to the work injury is available immediately. And cash benefits are payable after you miss seven days of work.

 

Under workers comp you can receive income replacement benefits if you prove that you’re unable to do all the tasks of the job you held at the time you were hurt – presuming you satisfy other eligibility requirements. Workers comp benefits are paid at two-thirds of your pre-injury average weekly wage.

 

By contrast SSDI is a program funded by payroll taxes from workers and employers that is meant to provide income replacement to persons with substantial work histories who suffer a physical or mental disability, or combination of disabilities, that makes them unable to perform their past jobs or any other jobs in the national economy based on their age, education, and job skills. It is not enough to show you’re unable to do your past jobs. Nor is it enough to have been working at the time your disability began. You must have paid into the system through payroll taxes in at least five of the past 10 years.

 

SSDI benefits are paid only if you have long-term medical impairments that prevent you from doing substantial work. They are not paid for partial disabilities or for injuries and illnesses that last less than a year – even if you’re out of work for several months.

 

The amount of SSDI benefits payable is based on your lifetime earnings, not the job you had at the time you became disabled. This is another difference between Social Security Disability and workers compensation.

 

Compared to workers comp benefits SSDI has a much longer waiting period. You will not receive cash benefits for the first five months of your disability. And you will not receive Medicare coverage until twenty-nine months after the date you’re found disabled.

 

Because the eligibility requirements, purposes, and available benefits are so different, you can receive both workers compensation and Social Security Disability benefits at the same time. It is also possible that you will qualify for benefits under one program but not the other.

 

How Common is it to Receive Both Social Security Disability and Workers Comp Benefits?

 

Unfortunately many work injuries cause lifelong physical disability and even mental health problems, such as depression, anxiety, and PTSD. And when they do, the injured worker may qualify for SSDI.

 

According to the Social Security Administration’s (SSA’s) 2017 Annual Statistical Report on the Social Security Disability Insurance Program, “approximately 467,000 disabled workers on the Social Security Disability Insurance program had filed for workers compensation or public disability benefits.” This did not include the number of workers who suffered injuries on the job that did not qualify for workers comp. Or those injured workers receiving private insurance benefits.

 

The SSA reported that among disabled workers receiving both SSDI and workers comp benefits, a disease of the musculoskeletal system and connective tissue was the primary diagnosis. This category includes problems resulting from herniated discs, back injuries, neck injuries, shoulder injuries, knee injuries, spinal cord injuries, hip injuries, ankle injuries, and arthritis and degenerative disc disease.

 

Mental health disorders were the second leading cause of disability.

 

In my practice roughly 15 percent of my clients are receiving – or pursuing – both workers comp and Social Security benefits. This is consistent with other studies. For example one study found that more than 12 percent of SSDI disabled worker beneficiaries were dual beneficiaries of workers comp or other public disability benefits. With only half of those persons receiving both types of benefits because of the SSDI offset provision. And a second study found that 7 percent of new SSDI beneficiaries had applied for Social Security benefits because of workplace injuries.

 

Should I Apply for Social Security Disability Before or After Settlement of My Workers Comp Case?

 

I recommend applying for Social Security Disability while you are receiving workers comp payments or while your workers comp claim is pending or on appeal. You can use the date of your work injury as the date you allege disability began for purposes of Social Security.

 

There are several reasons I recommend this.

 

First, the Social Security Disability process can take a long time to complete. Many people who are awarded SSDI benefits are denied at the initial and reconsideration levels, but approved at the hearing level. From application to approval can take 2 or more years total. The earlier you start, the sooner you will get a resolution.

 

Second, if you apply for disability when you are first hurt at work, the details of your injury and medical providers will be fresh in your mind. The SSA will want this information to process your claim.

 

Third, if you wait to apply for Social Security Disability until your workers comp case closes, there may be a period where you are left without income.

 

Fourth, not all injured workers are approved for SSDI payments. The sooner you find out if you qualify for SSDI, the better position you will be in to decide whether to try to settle your workers comp case.

 

Fifth, some workers comp cases never settle. Either because the employer has a policy against settlement or because it will not offer a reasonable amount to settle. You should move forward with your SSDI claim in case this is true with your workers comp claim.

 

And finally, the sooner you receive a decision on your Social Security Disability case the sooner you will know whether a Workers Compensation Medicare Set Aside Arrangement (WCMSA) is necessary to protect your right to future health care coverage.

 

Can I Receive the Full Amount of My SSDI Benefits While Receiving Workers Compensation? Understanding the Workers Compensation Offset of Social Security Disability Payments.

 

You can receive both workers compensation and SSDI benefits at the same time. But weekly workers compensation benefits can affect your Social Security Disability payments. This is called the offset.

 

Under the Social Security Administration’s Rules and Regulations, the total amount of your workers compensation benefits and Social Security Disability benefits cannot exceed 80 percent of your average current earnings before you became disabled.

 

If the total amount of these two types of benefits exceeds 80 percent of your average current earnings, the SSA will deduct the extra amount from your monthly SSDI payments.

 

Here is an example of how workers comp offsets SSDI payments:

 

Before you became disabled your average earnings were $4,000 per month. You, your spouse, and your dependent children would be eligible to receive $2,200 per month in SSDI benefits.

 

You get hurt at work while earning $600 per week. Because of this injury you receive $1,600 per month in workers compensation benefits and become eligible for SSDI payments.

 

Because the total amount of benefits you would receive ($3,800) is more than 80 percent ($3,200) of your average current earnings, your SSDI payments will be reduced by $600 per month. The SSA will offset your monthly payment by the amount of workers comp to enforce the 80 percent rule.

 

Are There Ways to Reduce the Offset of Workers Compensation Payments Against Social Security Disability?

 

Yes. It is possible to reduce or eliminate the Social Security Disability offset based on workers compensation. But you will likely need an experienced attorney to help you.

 

First, you can consider taking early Social Security retirement.

 

There is no offset of workers compensation against regular Social Security retirement benefits, only Social Security Disability.

 

But make sure you analyze the numbers to determine if it makes sense to take early retirement. If you retire early you will not receive your full retirement benefits.

 

Second, you can negotiate a lump sum workers compensation settlement.

 

This option only works if the workers compensation settlement documents include protective Social Security offset language. The protective language allows you to prorate, or spread out, the lump sum payment over the remainder of your lifetime, reducing the offset.

 

Your settlement documents should also include provisions that allow you to deduct certain expenses. The SSA allows you to deduct attorney fees, medical expenses that are not covered by Medicare, such as over the counter medication, and vocational rehabilitation expenses before considering the total amount to calculate your offset. These expenses add up and can reduce the offset greatly.

 

Here is an example. In a recent case I represented an injured airline worker. The Commission found for us after a workers compensation hearing, then we settled the case. By settling the case with the appropriate language in the documents, I reduced my client’s offset by more than $1,000 per month. He went from receiving less than $300 per month in SSDI benefits because of the workers comp offset to more than $1,500 per month. This was a contributing factor to his decision to settle.

 

Will Receiving Social Security Disability Benefits Reduce My Workers Comp?

 

In Virginia your workers comp payments are not reduced because you receive SSDI.

 

But you will likely not receive a yearly cost of living adjustment to your workers comp payments.

 

Can I Receive Supplemental Security Income and Workers Comp at the Same Time?

 

Most Supplemental Security Income (SSI) claimants will lose their SSI benefits if they qualify for weekly workers compensation benefits.

 

Though SSDI is the federal disability program that is most prevalent in workers comp cases, some of you may have suffered a work injury while receiving SSI.

 

SSI is another program the federal government administers for disabled persons. It is a welfare program, meaning that you not only have to prove that you’re disabled medically to receive benefits but also that you qualify financially. Many people who qualify for SSI either (1) have a limited work history or (2) failed to pay taxes when they did work. Because of this they are not “insured” for Social Security Disability Insurance benefits.

 

A person approved for SSI benefits may receive up to $771 per month if single. Or $1,157.00 per month if married. And SSI approval means you will receive Medicaid coverage.

 

The reason many SSI claimants lose their SSI benefits if approved for workers comp is that SSI has strict income and resource limits. If you receive more than $771 per month in weekly workers comp checks, or have more than $2,000 in individual resources (i.e., money in the bank), you no longer meet the non-medical requirements of SSI.

 

If you’re hurt at work while receiving SSI, make sure you consider the impact that receiving weekly workmans comp checks or settling your case will have on your receipt of SSI payments and Medicaid coverage. You must receive enough to offset the loss of monthly SSI payments and to pay for health care without Medicaid.

 

Why Are My Employer and Its Workers Compensation Insurance Carrier Asking About Social Security Disability Benefits?

 

Discovery begins after you file a workers comp claim in Virginia. This is the phase of litigation where the parties exchange information and develop evidence.

 

During workers compensation discovery the insurance company will not only take your deposition but also send you interrogatories and requests for production of documents. Interrogatories are written questions. While requests for production ask you to turn over paperwork.

 

Usually the insurance carrier will ask about Social Security Disability in discovery.

 

For example, one of the interrogatories may ask if you have received or are receiving Social Security Disability Insurance benefits. And one of the requests for production may ask you to turn over any document you sent to or received from the Social Security Administration.

 

The workers comp insurance company may even ask you to sign an authorization form entitled Social Security Administration Consent for Release of Information so that it can receive a complete copy of your disability file.

 

Why would the insurance company do this?

 

Two reasons.

 

First, to find a way to deny your claim if the Workers Compensation Commission hasn’t entered an Award Order.

 

The insurance carrier wants to know if you suffer from other health conditions that prevent you from working. And usually this information is found in the Social Security Disability file, especially the disability hearing transcript. If the insurance carrier can prove that another medical condition is the sole reason you’re unable to return to work, and that you have recovered fully from your work injury, then it doesn’t have to pay wage loss benefits.

 

Second, to get leverage when negotiating a workers compensation settlement.

 

Depending on your age, education, and past work experience, you can get SSDI benefits even if your doctor thinks you can perform light duty work. But if you’re capable of light duty work, the workers comp insurance carrier can force you to participate in vocational rehabilitation designed to find you a job.

 

The insurance carrier knows that you cannot continue to receive SSDI benefits if you go back to work and make above a certain amount. So it may increase its efforts to find a job for you, putting your SSDI benefits at risk, with the hope that you will accept a lower settlement offer.

 

But you don’t have to give information about Social Security Disability to the workers comp insurance company in many cases. Keep reading to find out why. 

 

Can My Employer or Its Workers Compensation Insurance Carrier Get a Copy of My Social Security Disability File?

 

One benefit of hiring an experienced workers comp lawyer is that your attorney will know what information you have to produce to the insurance company and what information you can keep to yourself. And in most cases you do not have to turn over specific information regarding your SSDI claim to the insurance carrier.

 

Your employer and its insurance carrier cannot receive documents from your Social Security Disability file so long as you refuse to sign a Consent for Release of Information form.

 

That’s because the Social Security Act does not allow the disclosure of any file, record, report, or other information that the Social Security Administration obtains in the course of performing its duty of deciding a SSDI claim. And the SSA does not honor a state court subpoena as the basis for disclosure of your information.

 

Federal law prohibits the disclosure of any specific information kept in the Social Security Administration’s records pertaining to a person without the person’s written consent. And if a SSA employee releases the information without your consent, then the employee may face criminal prosecution.

 

My advice is to never give the insurance company permission to access your SSA file without talking to an attorney first. The only time you may want to give the insurer permission is when you’ve negotiated a lump sum settlement and the insurer needs to confirm your Medicare status.

 

Some insurance carriers and their attorneys try to get around federal law by asking the Workers Compensation Commission to order you to sign a release authorizing the insurer to get your records from the SSA.

 

But the Commission denies these requests. As they should.

 

For example, in Singleton v. Fairfax Hospital Association, 68 Va. WC 226 (1989) the Commission stated that an injured worker is not required by statute or rule to sign an authorization which will permit the employer to obtain her federally-protected Social Security records. And the Court of Appeals of Virginia upheld the Singleton rule in Arvizu v. Gold, Record No. 2651-01-2 (2002).

 

The insurance company and its attorneys, however, will hope that you don’t know the law when they ask you to consent to release of your Social Security file.

 

Discuss Your Case with a Personal Injury Attorney that Handles Both Workers Compensation and Social Security Disability Claims

 

If you need help winning your workers comp or SSDI claim, or if you have questions about how receiving workers compensation benefits or negotiating a lump sum settlement could affect your SSDI eligibility, call me today for a free consultation.

 

I’ll help you recover income from all potential sources. This includes not only workers comp and SSDI, but also long term disability insurance or personal injury if your injury and disability is the result of someone else’s negligence.

 

For example, if you suffer a car accident while on the job you may have a workers comp claim, Social Security Disability claim, product liability claim, and car accident lawsuit under tort law.

 

Call now: 804-251-1620 or 757-810-5614.

Corey Pollard
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