Benefits and Pitfalls of Applying for Social Security Disability Before the Conclusion of the Workers Compensation Claim.

You are an injured worker. You filed a workers compensation claim, and you are receiving Temporary Disability, or maybe even Permanent Partial Disability. In either case, you are not able to return to work. In fact, you are not sure what kind of work you can do now. Maybe you are in your forties or fifties, and it just doesn’t seem feasible to go back to school, or retrain into something else. You don’t have many skills that you can apply to other kinds of jobs. Your job at the time of injury is just too physically demanding to return. What can you do?

If this scenario seems to apply in your situation, you may be considering filing for Social Security Disability, Title Two benefits. If you haven’t considered doing so, you should- but with a caveat.

Applying for and receiving Social Security Disability can be either a quick and easy process, or it could take a quite a bit of time and effort. Whether or not you get on disability from your initial application will depend on two simple but not mutually exclusive factors. The first, is simple luck of the draw. Yes, you may get lucky when you walk into a social security office and fill out an application, and find yourself eligible right from the beginning. Most people are not lucky, and have to go through the appeals process. The second factor of course, really boils down to the nature and extent of your disability. The more disabled you are, the less likely that you will have to go through a review process with the Social Security Administration office.

In either case, once you get on Social Security, this will have an impact on how your Workers Compensation Claim gets resolved, and the amount of time it takes to resolve the claim. The benefit to you, for obtaining social security even before the conclusion of your workers compensation claim, is that you now will have a guaranteed income stream even after your workers compensation benefits run dry. Also, you will become Medicare Eligible, 29 months after the date in which you are found to be too disabled to work. This is known as your onset date of disability. For many workers compensation claimants, this may be, and usually is (but is not necessarily), the date of injury, if the workers compensation case involves a specific injury, and where the injured employee does not return to work  after the injury. Medicare of course, is a medical insurance program funded by the Federal Government.

Once an injured worker becomes Medicare Eligible, or even is projected to become Medicare Eligible within 30 months, triggers a mandate to insurance companies, by Federal statute, to undertake what is called a Medicare Set Aside. This is an analysis of your projected future medical care costs over a claimant’s life expectancy, for the industrial injury. These costs have to be funded by the insurance carrier, and then set aside in a special, self administered trust account by the claimant, following any Compromise and Release agreement reached by the litigating parties. To do this, the insurance carrier has to hire a company that reviews the entire medical file, and then calculates the projected future medical costs, including doctor visits, surgeries, post operation therapy, prescriptions, etc. This can become a very time consuming process. Even worse, the MSA, once calculated, then has to be submitted to the Centers for Medicare Service (CMS), for review and approval. This is usually the case, when the applicant is already eligible for Medicare, at the time that the MSA is developed. Suffice it to say, the time that it takes CMS to review and/or approve the MSA, can be upward of a year or more. Therefore, if you are seeking a quick Compromise and Release agreement in order to obtain a lump sum award, then applying for SSA benefit can result in a significant delay in obtaining that Compromise and Release agreement. Whether the benefits of being on SSA Disability and Medicare, outweighs the drawback incurred as a result of the delay that it will cause in obtaining a Compromise and Release agreement with the WC insurance carrier, is a matter that a claimant consider before applying for SSA benefits.