Return-to-work issues seem to involve the blind leading the blind, even in the best circumstances. Doctors, especially general practitioners, are unsure what exact work restrictions are needed for an injured employee. Employers may not always have a good idea, assuming they are acting in good faith, what the requirements for the job are as well.
This can be further complicated if an employee attempts to come back to work part time from temporary disability. Not only do you have to navigate the issues of whether the job is appropriate, but you also have to deal with how much you get paid for what is called temporary partial disability.
What is temporary partial disability?
Temporary partial disability represents two-thirds of the difference between what you are making and your pre-injury average weekly wage. Though this seems simple in theory, it can be complicated for many reasons. Here are five things that employees can do to ensure they are being paid the proper amount of temporary partial disability:
Keep track of your pay stubs: Temporary partial disability is difference between your pay and your average weekly wage. So you need to know your pay in order to determine that amount. Sure employers can do this, but sometimes employers, especially if they are self-insured, have incentive to drag their feet. Also, many companies will outsource their payroll so that information may not be readily available to them. The best solution is to have that information on hand yourself. Having your pay stub will also allow you to know your pay period, which is also important.
Keep track of your hours on daily basis and/or get a copy of time card: Temporary disability is usually paid weekly. Many employers will pay every other week. The pay periods between your paycheck and your disability check might also vary. Sometimes checks will get delayed because an insurance company legitimately has to investigate what benefits have to be paid for one week. You can simplify this for them by providing your time card. The U.S. Department of Labor has a good app for this that you might want to use that tracks hours worked.
If your job is too hard to do physically, make a doctor’s appointment right awayto see if you can get your restrictions changed: Delaying a visit to the doctor may not only damage your health; it can also cost you money. An employer can attempt to deny and delay payment between the time where you stopped working at a “light duty” job and when a doctor took you off work and you start receiving temporary total disability again. You may not be able to recover this money, short of going to court, but you do have some control over keeping these gap periods as short as possible.
Turn in your time cards and time sheets to your workers’ compensation attorney or insurer: Don’t assume that your employer is turning over your hours to their workers’ compensation insurer. Be sure that you (or your lawyer) are turning in that information to ensure prompt and full payment.
Make sure that you know your average weekly wage: Workers’ compensation benefits are generally some percentage of your average pay over a time period. Employers will often turn over this information to their workers’ compensation insurer for them to determine how much you should be paid. If you think you are getting shorted, ask the insurer for the basis of their calculations and run it by an experienced workers’ compensation lawyer in your state or the state where your claim has been filed.
This is the next post in the series that looks at the basics of workers’ compensation. If you receive both workers’ compensation benefits and Social Security Administration disability benefits, please be aware of the concerns raised here.
The most important thing a worker who is entitled to receive both workers’ compensation and SSA disability benefits can do is report the amount of workers’ compensation benefits to the Social Security Administration, in writing if possible. Failure to do so can result in an overpayment that may not be uncovered until years later and may be thousands of dollars.
However, the reporting of these benefits doesn’t ensure the SSA will make the proper adjustment to your SSA monthly benefit. As such, it’s important to follow up with the SSA once you have reported your benefit amount to ensure they adjust your SSA benefit to account for this. This will help ensure an overpayment is not found years later. Be sure to ask an experienced workers’ compensation lawyer if you have questions.
Please read the previous blog posts in the workers’ compensation basics series by clicking on these links:
Social Security disability benefits are subject to an offset, or reduction, when paid to a claimant who is also receiving workers’ compensation benefits. Technically, the reduction applies if the total of the two benefits exceeds 80 percent of the worker’s “average current earnings” or ACE. The worker’s ACE is calculated as the largest of three averages:
average monthly wage used for purposes of computing Social Security benefits;
1/60 of the total wages for five consecutive calendar years for which such wages were the highest; or
1/12 of the total wages for the calendar year in which the worker had the highest such wages during the period consisting of the calendar year in which he or she became disabled and the five consecutive calendar years preceding that year. Clearly this is not a simple calculation that most workers can undertake.
In most instances, when a worker is receiving temporary or permanent total disability payments, they will not be entitled to receive any disability pay from the Social Security Administration. When a worker is receiving permanent partial disability payments, they likely will be entitled to receive at least a portion of their SSA disability pay. In many cases, settling a workers’ compensation case can increase the monthly SSA disability benefit.
At any rate, the most important thing a worker who is entitled to receive both workers’ compensation and SSA disability benefits can do is report the amount of his workers’ compensation benefits to the Social Security Administration, in writing if possible. Failure to do so can result in an overpayment that may not be uncovered until years later and may be thousands of dollars. However, the reporting of these benefits doesn’t ensure the SSA will make the proper adjustment to your SSA monthly benefit. As such, it’s important to follow up with the SSA once you have reported your benefit amount to ensure they adjust your SSA benefit to account for this. This will help ensure an overpayment is not found years later.
What can I do if the Social Security Administration (SSA) says I have been overpaid disability benefits?
This is a very common problem, unfortunately. There are a number of factors that cause these issues to come up so frequently.
First, the rules about how much one can make differ, depending on what type of disability benefit is received. Social Security Disability Insurance (SSDI) recipients can earn over $1,000 per month without jeopardizing their monthly benefit. But almost every dollar earned by Supplemental Security Income (SSI) recipients can affect the amount of their monthly benefit, as this benefit is partially based upon a recipient’s financial situation. These amounts can change over time.
Second, there are many different rules about when you can earn money from working above what is called the substantial gainful employment level and not jeopardize your continued entitlement to disability benefit. It’s difficult to summarize all of the circumstances, yet alone know all of the rules, for a claimant. What’s more, simply providing the SSA your wages doesn’t absolve you from having to repay overpayments. The SSA doesn’t look at this information on a regular basis. Years later, you may get a “Dear John” letter advising you that you were overpaid thousands of dollars.
Finally, you may simply get wrong or bad information from someone when you meet with or speak with the SSA. It’s important to document when you spoke with the person and who that person was. If possible, get them to put their advice in writing.
When faced with an overpayment, there are two things you should always do. First, Continue reading →
In order to qualify for Social Security disability benefits, you have to prove that you have one or more physical and/or mental impairments that are severe and that prevent you from engaging in substantial gainful activity.
Substantial gainful activity is measured by the amount of money per month that you can earn.
The Social Security Administration will take into account your educational background, job history, and the skills you have acquired in determining whether or not you meet this standard. The fact that you cannot go back to the job you have done for most of your life does not necessarily mean that you can qualify for Social Security disability payments.
I am licensed in Nebraska and Iowa and handle workers’ compensation, personal injury, and Social Security disability appeals for the firm. If you have questions about Social Security disability benefits or the appeal process in another state, I can refer you to another expert attorney.
Today’s post comes from guest author Matthew Funk from Pasternack Tilker Ziegler Walsh Stanton & Romano. Different benefits like SSD, a pension, and workers’ compensation can be combined, but care needs to be taken when approaching that situation. Working with a lawyer who knows the details of how these potential benefits interact means peace of mind that a client will benefit from available resources without potential troubles.
QUESTION: IF I AM GETTING SOCIAL SECURITY DISABILITY (SSD) AS WELL AS A PENSION DOES THAT MEAN I CANNOT GET WORKERS’ COMPENSATION AS WELL?
ANSWER: YOU CAN GET STILL GET WORKERS’ COMPENSATION WHEN YOU ARE RECEIVING A PENSION AND SSD.
At 55, Joe was a walking museum of every accident he had ever had in his 30 years of working the job. That last accident put him out of work for almost two years. Luckily, he filed all the paperwork, submitted all the forms, crossed all his ‘Ts’ and received Social Security Disability (SSD).
But after three decades of hard work, Joe had had enough and so he started the paperwork to retire. But he was worried. He had planned on applying for Workers’ Compensation, but he wasn’t sure he’d could since he was already on SSD and about to receive his pension. What should he do?
File, Joe! File!! The combination of Workers’ Compensation, Social Security Disability and a pension is called the Trifecta, a Triple Crown of benefits, so to speak. Continue reading →
This guest post is written by colleague Ryan Benharris of Massachusetts. The situation described is one example where it is wise to ask an attorney to be your advocate. Roger Moore is our resident expert on Social Security appeals in Nebraska and Iowa as a member of the National Organization of Social Security Claimant Representatives.
Knowing your Administrative Law Judge is important for your case.
In December, 2010, the Social Security Administration (SSA) implemented a set of rules put in place to enable more effective case review. One of the major changes was that Applicants will no longer know who their Administrative Law Judge is prior to their scheduled hearing.
A recent article in the Wall Street Journal noted that these judges seem more concerned with the speed of case processing than on whether the applicants actually deserve benefits. WSJ also indicated that some judges were approving more than 85% of the cases they heard in what was allegedly an effort to have the cases resolved more quickly.
Unfortunately, for applicants, this change in practice has made their cases much harder to litigate. Many Administrative Law Judges have different styles of practice in how their cases are heard. An attorney may present information in a different style depending on the judge.
The importance of an applicant being represented by an attorney before the Social Security Administration has never been clearer. Since there is no way to know who the Administrative Law Judge is prior to the hearing, it is absolutely imperative that every case prepared in accordance to all rules governing how cases are tried before the court. If even the slightest detail is overlooked, it may prevent an applicant from being allowed to present evidence that could win his or her case.
It is fairly common for an injured worker to receive Social Security disability benefits and also receive a settlement for workers’ compensation. According to Social Security, “If you receive workers’ compensation or other public disability benefits and Social Security disability benefits, the total amount of these benefits cannot exceed 80 percent of your average current earnings before you became disabled.”
Here’s how I handle this situation: in any settlement where an injured worker is receiving Social Security Disability Insurance (SSDI) benefits, an attorney representing that person and/or the injured worker must think about how a lump-sum settlement affects the SSDI benefits for the person. There will probably be a decrease in benefits because “workers’ compensation and other public disability benefits may reduce your Social Security benefits,” according to the Social Security Administration.
Some items can be kept out of the workers’ compensation settlement total for Social Security benefits purposes. This list includes, but is not limited to, such things as: attorney fees; litigation expenses; past medical bills that need to be paid; future medications expenses; future medical care expenses; and vocational services expenses. Taking away these parts of the settlement can and should increase the value of the net settlement to the injured worker. The remaining net settlement should then be distributed proportionally over the injured worker’s life expectancy. The overall result of your attorney preparing for your settlement by making these calculations means that a workers’ compensation settlement will decrease your Social Security disability benefits less.