If you have an active workers’ compensation case you most likely will find it difficult or impossible to find a Social Security disability lawyer to take your case. In this article I want to explain why this is and what you can do about it.
As you know workers’ compensation comes into play if you are hurt on the job performing an activity related to your job. Every state has its own workers’ compensation law and there is even a federal workers’ compensation system for federal employees. The common feature of all workers’ compensation laws is that you do not have to prove fault.
If you are hurt on the job, workers’ compensation is supposed to kick in automatically. If you are hurt and cannot work, workers’ compensation will (or is supposed to) provide you with employer paid medical treatment and weekly lost wage payments as long as you are unable to work.
If you have been involved in a workers’ compensation case you know that the insurance companies or agencies that oversee medical treatment and lost wage payments often do not act in good faith and many times you will have to fight to recover your benefits.
For purposes of this article, let’s assume that you were hurt on the job and that you are receiving “temporary total disability” financial payments for your missed wages. Let’s also assume that your injury is serious enough to qualify you for Social Security disability – not only can you not return to your job but your injury would prevent you from performing any job.
Does the law permit you to collect from both your state’s workers’ compensation system and Social Security disability?
Unfortunately, the answer to this question is “no.”
With very limited exception, workers’ compensation offsets Social Security disability dollar for dollar.
If you are receiving $500 per week from workers’ compensation (equal to around $2,150 per month) and your Social Security disability benefit is $2,000 per month, you will be subject a complete offset. (You can go to ssa.gov/myaccount to learn what your SSD benefit would be.) As long as you are receiving workers’ compensation, you will not be eligible for Social Security disability.
Because of this dollar for dollar offset, you will have a difficult time finding a Social Security disability lawyer to take your case under a “no fee unless you win” contingency fee contract. If there are no past due benefits payable to you because of a workers’ compensation offset, there would be no past due benefits to pay a lawyer.
What Happens if You Settle or are About to Settle Your Workers’ Compensation Case?
Once you settle your workers’ compensation case the offset can go away, but only if your settlement paperwork contains what is known as a “Hartman provision.” A Hartman provision says that for Social Security disability purposes your workers’ compensation settlement will be treated as if it was being paid out over your expected lifetime.
For example if your portion of a workers’ compensation settlement is $50,000 and you have an expected life expectancy of 35 years (420 months), the $50,000 will be treated as if it was payable to you at the rate of $119 per month. Since most SSD payments are around $2,000 per month, this offset is small enough such that you should be able to find a lawyer.
If there is no Hartman language in your workers’ compensation stipulation then the $50,000 settlement would offset the first $50,000 of Social Security payments, which in most cases would totally offset any past due benefit and leave nothing to pay a lawyer.
So, if I get a call or email from a potential client who is currently receiving workers’ compensation benefits, my most likely response would be to tell that person that I cannot help them now, but to call me back when their case is about to be settled. I would also tell that person to download their MySocialSecurity statement to look at their earnings record. Your eligibility for Social Security disability runs out when your earnings credits run out – usually about 5 years after you stop working.
As you can see, there are a lot of moving parts here. State law determines how much you can receive in workers’ compensation benefits and what your settlement options may be. There is the earnings credit/date last insured issue for Social Security disability. There is your expected lifespan calculation. There is the Hartman language issue for settlements. There is also a potential issue with Medicare if funds from your settlement are not set aside in your workers’ compensation case.
Because there are so many potential areas of trouble, you should avoid filing for Social Security on your own without speaking to both your workers’ compensation lawyer and a Social Security disability attorney.
Why Does the Offset Exist?
One final point – you may wonder why federal law calls for a workers’ compensation offset. Apparently our lawmakers think that an injured worker who now has a total disability would receive too much money if that person received both workers’ compensation and Social Security disability. Those who are in this situation would recognize the absurdity of this reasoning but this is how the law is written.