Tag Archives: social security disability

Are plaintiff’s lawyers unintentionally spreading myths about claimant fraud?

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The Social Security Administration (SSA) plans to implement rules, that if enacted, would allow SSA to review social media posts by Social Security Disability Insurance (SSDI) applicants and beneficiaries to check for benefits fraud.

Administrative agencies and adjudicatory bodies usually have broad authority to enact procedural and evidentiary changes that can affect the substantive rights of claimants. In the case of federal executive agencies like the Social Security Administration, those rules can be challenged in the judiciary branch and struck down by Congress.

Complaints about social security fraud are evergreen and overblown because of the difficulty in getting SSDI. SSDI benefits became even harder to receive as a result of bi-partisan reforms signed by President Obama in 2015 that included the repeal of the so-called treating physician rule.

Complaints about social security fraud echo and overlap with complaints about workers’ compensation fraud. Workers’ compensation fraud is rare on the employee side and even the workers’ compensation industry admits that workers’ compensation fraud is at least as much of a problem on the employers’ side as it is with employees.

So why does the trope of the fraudulent disability or workers’ compensation claimant continue to exist? I would argue that the plaintiff’s bar unintentionally perpetuates the myth. Here is the how and why of how I think the plaintiff’s bar perpetuates the fraudulent claim trope.

Any good plaintiff’s lawyer is going to make sure they know about their client’s social media feeds and will warn their clients about social media use. Plaintiff’s lawyers often take this standard advice and publish it on blogs and their own social medial feeds. Whenever a story breaks about an injured worker or disability claimant being caught for fraud with a social medial post, plaintiff’s lawyers reflexively post “See what happens, don’t do that.” But by engaging with these stories, the plaintiff’s bar amplifies stories about claimant fraud which are admittedly rare.

So why do we as plaintiff’s lawyers post cotnent on social media that perpetuate myths about our clients? It’s hard to say, but I have a few theories. The first is there is a pressure for plaintiff’s lawyers to engage on social media. A lot of plaintiff’s attorneys view social media engagement as marketing and outsource marketing to vendors.  When plaintiff’s lawyers take a hands off approach to social media, content tends to reflect whoever is actually producing the content rather than the attorney.

If social media posting is viewed as marketing, then from a marketing perspective, attorneys might be afraid to alienate potential clients by directly challenging client assumptions about claimant fraud. If a plaintiff’s attorney posts a generic “Be careful on social media” post, the subtext is “I only represent legitimate claimants.” Plaintiff’s lawyers are trained to frame their cases in a way that appeals to jurors that are skeptical of litigation and those who bring lawsuits. While that approach often works with juries in individual cases, that assumption can amplify those same views if used as part of attorney marketing.

Plaintiff’s lawyers try to do what is best for their clients and practices. Even if plaintiff’s lawyers don’t push back against directly about stereotypes about their clients and practices in their marketing, many of us push back against harmful laws and regulations on a state and federal level.  Social media is still a relatively new platform that has given many firms a way to engage with the public in a cost-effective way. We as plaintiff’s lawyers should use this new platform to confront negative stereotypes about our practices rather than unintentionally perpetuating harmful stereotypes.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Nebraska, social security disability, Workers' Compensation and tagged , , , .

Discount Rate And Life Expectancy: What Most People Forget When Valuing A Workers’ Compensation Case

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What’s my case worth?

I hear that question a lot when I meet a new client. In a workers’ compensation case I tell them it depends on many factors; How much were you earning when you were hurt, what part of your body was injured, how severely you hurt, where you live, how much education you have, whether you can return back to your old job, etc.

There are a lot of variables. But in cases where an employee has some reasonable chance of being found to be permanently and totally disabled, in other words unable to find work from their work injury, there are two constants effect the value of any settlement: discount rate and life expectancy.

Discount rate is synonymous with the time value of money. In short, a dollar today is worth more than a dollar in the future. This is important in workers compensation because if a worker is found to be permanently and totally disabled then they will be paid weekly benefit checks for the rest of their life. Under Nebraska law, that benefit check will not increase over time. The question then becomes how much will the value of that money decrease overtime. The discount rate is the expected return on investment on the money. The higher the expected return on investment, the higher the discount rate. But the higher the discount rate, the less a lump sum settlement is worth in present dollars.

An award of permanent and total disability is a form of a pension. Abnormally low interest rates in the aftermath of the financial crises have raised concerns about investment returns for pensions. The Nebraska Workers Compensation Court has used a 5 percent discount rate to value awarded permanent and total disability benefits for at least the last 12 years. But the expected rate of return on investments, as measured by interest rates of declined over the last 12 years. Lump sum payments, like workers compensation settlements, based on a 5 percent long term interest rate undervalue those payments.

For example, a 30 year US Treasury bond yields roughly 2 ¾ percent. If a 50 year-old worker earning $600 per week is found to be permanently and totally disabled, the present value of an award of permanent and total disability would be $334,000 using the 5 percent discount rate and using the court’s life expectancy tables showing a 31.4 year life expectancy. But if the court used the 30 year bond yield as the discount rate, that same award of permanent and total disability would be worth $439,000.

The issue of discount rate and case valuations isn’t widely discussed in Nebraska, but it was a contentious issue in the United Kingdom when the government cut their discount rate in personal injury claims, called the Ogden rate, by 3.25% in February 2017. The Ogden rate was increased by .75-1.75 percent in September 2017 under pressure from insurance companies.

The other variable in valuing an award of permanent and total disability is life expectancy. The Nebraska Workers Compensation Court uses a general life expectancy table to value awards of permanent and total disability that doesn’t vary by gender or nationality/race. The CDC breaks down life expectancy along those lines. Men and African-Americans have shorter life expectancies so they would actually benefit from the use of the Nebraska Workers Compensation Court life expectancy tables. Women and Hispanics tend to live longer so they would not benefit by the use of the court tables. For example, a 50 year-old Hispanic woman is expected to live 35.9 years whereas the Nebraska Workers Compensation Court just assumes a 50 year old has a 31.4 year life expectancy.  Use of the court’s life expectancy tables for a 50 year-old Hispanic woman earning $600 per week at the time of her injury could undervalue an award of permanent and total disability by about $18,000.

But workers who have a reasonable chance of being found to be permanently and totally disabled have other factors to think about when it comes to valuing any settlement of their claim. First, an insurer/employer only has to pay weekly benefits rather than a lump sum of money if a court finds a worker is permanently and totally disabled. They are free to use whatever discount rates and life expectancies they chose in valuing a claim for a settlement.  Court rules about discount rates and life expectancy only come into play when an injured worker wants to take a lump sum settlement on an awarded finding of permanent and total disability.

Secondly many employees who could potentially be awarded permanent and total disability benefits are also awarded social security disability benefits. Social security disability benefits payments can be reduced or offset by any workers compensation benefits received. An offset can have the practical effect of capping the value of any settlement based on the probability of a worker being awarded permanent and total disability benefits. 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Workers' Compensation, Workplace Injury and tagged , , , , .

Three Clues Your Employer Doesn’t Want You To Return To Work After An Injury

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Apologists for Thought leaders in the workers compensation insurance industry like to tout how they want injured employees to “return to work.”  But insurance industry rhetoric about the importance of return to work is belied by at least three common scenarios involving employees with serious work injuries.

  1. Employer requires an employee to resign in order to receive a lump sum settlement for their workers compensation claim: Early on in my career a defense lawyer told me that his client “Didn’t want their employees driving to the plant in an Escalade (this was the mid-2000s) after they settled their workers compensation case.” Putting aside the absurdity of someone who earns wages that would make their kids eligible for free or reduced lunch buying a luxury SUV after they had been off of work for an extended length of time, this practice indicates that some employers really don’t want injured workers to return to work after an injury.A recent discussion over the WILG listserv indicated that resignation as a condition of a workers compensation case settlement was a common practice across the United States. An agreement to resign normally comes as a separate severance agreement. Those settlement agreements may not be binding if an employer doesn’t include the right language in the release which is why an injured worker would want to consult with an employment lawyer or have a lawyer familiar with employment law and workers compensation represent them in their work injury.

    Certain states, like Massachusetts, outlaw the practice of conditioning a settlement on resignation. Even in states where the practice is considered lawful lawyers may consider challenging such practices on the basis of anti-retaliation laws, unfair claims practice laws or causes of action that prevent interference with contractual relationships.

  2. Employer requires employee to return to work with “no restrictions”. 100 percent healed policies are considered to violate the Americans with Disabilities Act by the Equal Employment Opportunity Commission (EEOC) and by some intermediate level federal appellate courts. Regardless of whether the Supreme Court or Congress ultimately decide such policies are illegal, oftentimes a person with an injury that requires surgery and time off from work is going to have some permanent restrictions.Many times requests that an employee return to work without restrictions are sent after an employee exhausts their 12 weeks of FMLA. Oftentimes employers will extend a short amount of unpaid leave in addition to FMLA. When injured employees receive these letters many of them feel like their company is trying to push them out. This feeling can sometimes be correct. That’s why it is helpful to have an attorney who knows how workers compensation and employment laws intersect.
  3. Employer suggests that employee apply for private disability for a work injury: Private short-term (STD) and long-term disability (LTD) policies can be helpful to employees. Some policies even allow employees to collect both LTD and STD with workers compensation benefits.But some employers will push employee onto disability because it is cheaper than paying workers compensation benefits. Even more insidiously if an employee stays off work long enough that they are eligible for long term disability, some long-term disability policies require that employees apply for social security disability or SSDI in order to continue receiving LTD. Many of these policies hold if an employee receives SSDI they need to payback the LTD insurance company for the time that SSDI and LTD benefits overlapped.

    I ran into a policy like this representing a client in a disability discrimination case. Courts have questioned the legality of these policies as well. If you are stuck in a situation where you are applying for long term disability because of a work injury and being forced to apply for SSDI, you should consult with a lawyer who is familiar with workers compensation and SSDI.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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