Do I Have to Sign a Release that Gives the Insurance Company Access to My File with the Social Security Administration?
No. Do not sign a form releasing your Social Security records to the insurer before considering why it wants you to sign. Often there is no benefit to doing so, and the Virginia Workers’ Compensation Commission does not have the authority to force you to sign a release allowing your employer or its insurance carrier to get information about you from the Social Security Administration (SSA). Arvizu v. Gold, Record No. 2651-01-2 (Aug. 13, 2002).
There are two exceptions: one comes up at settlement rather than during litigation, and one comes up when you want to increase your wage loss benefits through a cost-of-living adjustment. Neither requires the broad release the adjuster sent you. I cover these exceptions below.
What the insurer sent you, and why
Some of you with pending workers’ comp cases will get not only a Medical Records Release form but also a Social Security Administration Consent for Release of Information form (SSA-3288) from the insurance adjuster. When you sign this form, you give the SSA permission to provide information or records about you to the third party listed in the document.
The two forms often arrive together; however, sometimes, the insurer sends the SSA authorization later in the case. The timing of the request to release records from the Social Security Administration hints at why the insurer wants them.
Do not treat these documents equally. The medical release is a document whose scope you negotiate. The authorization to release information concerning your Social Security disability application or Medicare is one you decline to sign, except in specific circumstances where doing so benefits you and your family.
What the insurer is looking for
Usually the insurer will state it wants you to consent to the release of Social Security information so it can check your benefit status.
That’s true, sort of.
In my experience, a request to complete the SSA release early in the case means the insurance company wants records to see if you are receiving Social Security disability benefits for an unrelated medical condition. If you are, the insurer will use this information to try to deny your workers’ comp case, arguing that any disability from work is from a non-work-related cause.
Now, you may decide you have nothing to hide if you are not receiving SSD benefits or have not been approved.
But if you have applied for SSD: think twice before signing the release.
A broad release not only tells the workers’ comp insurer whether you are drawing benefits, but it may also give it your entire disability file – your initial application with the SSA, your function reports (Form SSA-3373), your statements about what you can no longer do, and the administrative law judge’s decision.
Some of these documents, especially the application and function reports, are signed statements to a federal agency describing what you can or cannot do. In your workers’ comp case, you may have to market your residual work capacity, consider light-duty offers, or work under a specific set of restrictions. Any difference between what you told Social Security and what you have said in the workers’ compensation claim during discovery or doctor’s appointments is material that the insurer can use to attack your credibility.
But beware: refusing to sign the SSA consent form does not make the underlying information unreachable. The employer and insurer can still get information about your medical history through other lawful discovery devices, such as subpoenas to your in-state healthcare providers, interrogatories, requests for production, and deposition questions – including whether you have applied for or receive SSDI or SSI benefits. What they cannot do is compel you to hand over the SSA file itself.
Again – refusing to sign does not hide the fact that you applied for or get Social Security disability. What refusal protects are the documents underlying that fact – the function reports, the written statements about what you can no longer do, the disability hearing testimony, and the ALJ’s findings. Those are the documents an adjuster or defense attorney mines for inconsistencies.
Telling the insurer how much you receive in Social Security is one thing, and it cannot hurt you. On the other hand, turning over an entire file full of sworn testimony and descriptions of your limitations is another.
Early in my career, I requested these files for insurance carriers when I did defense work. And I’ve spent the past 15+ years representing injured employees seeking workers’ comp benefits and Social Security disability. I know what’s in these files and the risks of turning them over.
Can the Workers’ Compensation Commission order me to sign a release for my Social Security records?
No. Generally, the Virginia Workers’ Compensation Commission lacks the power to order you to sign a release authorizing your employer or its insurer to get information from the SSA.
In Arvizu v. Gold, Record No. 2651-01-2 (Aug. 13, 2002), the Court of Appeals of Virginia addressed whether the Commission exceeded its authority in ordering an employee to execute a release authorizing his employer’s attorney to obtain his information from the Social Security Administration. The answer: yes, the Commission exceeded its authority. Nothing permits the Commission to order an employee to sign a release authorizing the employer to obtain the employee’s records from the Social Security Administration.
Arvizu remains good case law. The Commission has cited it in later opinions.
Years ago, I used this case law to defeat a self-insured employer’s efforts to obtain my client’s file. He was a truck driver who injured his lower back and knee when he fell while unloading a trailer.
The employer knew that he had received SSDI benefits for a cervical spine injury requiring a spinal fusion before he started working for it. It wanted access to his Social Security file to prove that his disability was related to that pre-existing condition, not the work accident.
After both parties filed written motions, the Commission agreed with me and held that my client did not have to sign the release. We negotiated a six-figure settlement at mediation a few months later.
The two exceptions when it makes sense to sign
As with most legal questions, exceptions exist. One arises at settlement, and the other one comes up when you seek an increase in the amount of your temporary total disability (TTD) payments. Neither one requires you to sign an open-ended SSA release.
Medicare Set-Aside and settlement
It makes sense to allow the SSA to release information to the insurance company if you are negotiating a workers’ compensation settlement, are either a current Medicare beneficiary or expect to become eligible for Medicare within the next 30 months, and the settlement will likely fall within CMS’s review thresholds. You fit into one of these categories if you are of retirement age, receive both workers’ comp and Social Security Disability Insurance benefits, or have applied for SSD. Depending on the amounts discussed, any settlement may require a Workers’ Compensation Medicare Set-Aside Agreement (WCMSA), which requires confirming your Medicare status.
Determining whether the parties need to include a WCMSA as part of the settlement requires verification of your entitlement and the benefit amount – not your entire Social Security file. A benefit verification letter or a narrowly drafted consent limited to this information does the job while protecting you. Sign that. Do not sign a release that opens the whole record because the carrier may find something that causes it to rescind a settlement offer.
Cost of living adjustments
You will also want to release certain information from the Social Security Administration if you are seeking cost of living adjustment (COLA) benefits in your workers’ comp case. COLA benefits increase the amount that workers’ comp pays.
Eligibility for COLA depends on the amount of your combined workers’ comp and Social Security payments. If your combined workers’ compensation and Social Security disability benefits exceed 80 percent of your pre-injury average weekly wage, you do not receive COLA. The Workers’ Compensation Commission cannot determine this without the Social Security figures; however, the employer and insurer do not need your entire disability file. Instead, provide a Benefits Verification Letter from the SSA.
Same principle. Release the payment information, but nothing else.
Talk to me before you sign anything.
If the adjuster has sent you a stack of authorizations and you are not sure which ones you have to return, call me to talk about it.
Richmond (804) 251-1620 · Hampton Roads (757) 810-5614
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