A series of articles emphasizing practical
knowledge you can't find in practice guides
and interviews with experts who share
their techniques for effective and efficient
case management

 

How To Do It: Articles, Interviews &
Practice Tips

Articles emphasizing practical knowledge you can't find in practice guides

People Who Made A Difference
Profiles of people who changed workers’ compensation law.

White Papers

Letters to the Editors

Meet the Editors
• Warren Schneider
• Marjory Harris


Archives

 

 

 








General Descriptions of the DIB and SSI Programs

As injuries underlying a workers’ compensation
claim can impact on a Client’s ability to engage in
current and future employment, Workers’
compensation practitioners should develop a
competency in identifying threshold issues in a
client’s possible claims for Disability Insurance
Benefits (DIB) – often identified as “Social Security” -
and Supplemental Security Income (SSI).

DIB and SSI are distinct programs administered by
the Social Security Administration. For assessing the
disability of a worker, DIB and SSI use identical
medical standards; each, however, has a different
funding source.

DIB is funded through the Social Security Trust Fund
by contributions from employers and deductions
from employees’ paychecks. If a worker is found to
be disabled and eligible for DIB, he or she is paid in
an amount dependent upon the amount of money
contributed to the worker’s Social Security Account
while he or she worked.

SSI, on the other hand, is funded by the Nation’s
general revenue fund and can be distinguished from
DIB in that the recipient may: 1) never have worked;
2) last worked at some remote time in his or her life;
or, 3) receives DIB but the amount of DIB falls below
an amount seen as necessary for a minimum
standard of living. Often, disabled workers who were
employed in low-paying or minimum wage jobs
receive both DIB and SSI monthly checks.

One significant difference between the programs is
that there is an “income needs” requirement for SSI
that is not an issue in DIB. SSI claimants who have
more than $2,000 in liquid assets or receive more
than approximately $900 per month in income are
ineligible for SSI benefits. The DIB program does
not share these limitations.

Although there are other relevant questions, the
central question facing the Social Security
Administration in determining claims for DIB and SSI
is, “considering the medical condition, age,
education and work history of the worker, can the
worker engage in his or her past employment or
any other employment that can be found in
significant numbers in the national economy?”
If the
answer is “yes,” the claims will be denied. If the
answer is “no,” benefits can be granted.



All links are from the Social Security Administration’s website

www.ssa.gov

Disability & SSI



Identifying a Workers’ Compensation Client’s
Eligibility for DIB or SSI


If a workers’ compensation client is working or is
able to return to his or her work despite a
work-related injury, then the issue of filing a DIB or
SSI claim is moot. Except in special circumstances,
someone who can work is not eligible for either
DIB or SSI.

If, however, a client cannot continue working or
cannot return to work after a sick leave, then filing
DIB and SSI claims should be considered and
encouraged. (Note: as a general rule, I urge
claimants to file for both DIB and SSI). Filing is a
simple process. Just have the client call
1-800-772-1213 and the operator will arrange an
Application appointment at the nearest Social
Security Administration District Office. Alternatively,
the client can go to the Social Security
Administration’s website at www.ssa.gov for assistance in the scheduling of an application
appointment.

For the workers’ compensation practitioner,
identifying the threshold issue for filing a DIB or SSI
claim is simple. Merely ask the client, “considering
all of your physical and mental problems, can you go
back to work?”
If the answer is “no” or “I don’t know,”
have him or her file claims for DIB and SSI. I stress
the phrase “...all of your physical and mental
problems...”
because I have found that clients with
workers compensation claims often focus only on the work-related injury. DIB and SSI claims address the entire corpus of the claimant’s medical issues, regardless of their origins or causations. Social Security looks at everything – not just the hand mangled by the drill press, the back injured in the fall off the painter’s ladder or the depression and anxiety resulting from a stressful job – to make a determination of a worker’s disability.

 

Benefits for People
With Disabilities

How SSA Decides if
Someone is Disabled–
A 5-Step Process

 


Referral of a Workers’ Compensation Client to
a Social Security Practitioner


Unless the workers’ compensation attorney is
familiar with current Social Security Administration
Claims’ procedures and issues, it is a good idea to
seek advice for a particular client at the earliest point
in the application process – particularly if the client
becomes confused or overwhelmed by the process.

One point that particularly calls for assistance is if
the Administration wants to send the client out for a
Consultative Examination. As a DIB or SSI claimant
can object to a particular Examiner, a local SSA
Practitioner should be contacted to determine the
suitability of the Administration’s choice of examiners.
Most SSA practitioners know who are the good
doctors and who are less than good. (“good” being
defined as professionally competent, fair and
objective).

Certainly, a client should be referred to a competent
practitioner if an Initial Denial of a DIB or SSI claim
is issued. At this point, the claimant has moved into
the “appeals” of an adverse determination. As the
Denial rate at this level (called “Reconsideration”) is
87% in the Bay Area, the likelihood of moving on to
the ALJ Hearing level is impressive and the use of
a skilled SSA practitioner is an enhancement to the
client’s possibilities of winning on a claim.

Keep in mind that most SSA practitioners are
“do-gooders.” Generally, you can get a great deal
of informed advice and information at no cost to you
or your clients. So, if you are in doubt or have a
question, call one.


 

“As a DIB or SSI claimant can object to a particular Examiner, a local SSA Practitioner should be contacted to determine the suitability of the Administration’s choice of examiners.”


DIB and SSI Information for a Workers’ Compensation Claimant

At the point at which there is to be a workers’ compensation settlement and the client also has,
or intends to have, a DIB or SSI claim, certain
information is advisable.

Under the Social Security Act, a recipient of DIB must
report a workers’ compensation settlement to the
Social Security Administration. This mandate is
because of the workers’ compensation “Offset
Requirement” affecting the receipt of DIB. Under the
Act, a DIB claimant has his or her DIB monthly
benefits offset in an amount approximate to his or
her workers’ compensation receipts for the same
month (I say “approximate” because the formula
used is not exactly “dollar for dollar” – but, it is
substantially close to that approach).

If a DIB recipient gets a workers’ compensation
settlement and does not tell the Administration,
when they do find out, his or her DIB can be reduced
and he or she can be held liable for the repayment
of any DIB benefits that should not have been paid
because of the “offset” requirement.

Similarly, if an SSI recipient gets a workers’ compensation settlement, the amount of the
settlement will be a factor in calculating how much
should have been paid to the claimant in SSI during
the months covered by the workers’ compensation
settlement. As SSI has an “economic needs” aspect
to it, at any time an SSI recipient has more than
$2,000 in liquid assets – regardless of the source
of the assets – his or her SSI benefits can be
compromised.

If a workers’ compensation claimant is to receive a
substantial (i.e., +$2,000) settlement, an SSA
practitioner should be consulted to determine the
most appropriate way in which to handle these
funds so as to avoid compromising the receipt of
SSI benefits. As individual fact-patterns and
solutions are numerous, it may take a considerable
effort on the part of an SSA practitioner to address
two potentially conflicting goals – the receipt of a
workers’ compensation settlement and the
continued eligibility for SSI.

 

Sample Informed Consent for Social Security Claimants Settling Workers’ Compensation Cases:

____ I acknowledge that my attorney has advised me to report all workers’ compensation benefits to the Social Security Administration (SSA) and to make arrangements with SSA to repay any benefits to which I may not have been entitled.

____ I understand that due to this workers' compensation settlement, if I receive Social Security benefits now or in the future, Social Security may seek to reduce the amount of monthly benefits they pay me. I understand that Social Security may not be obligated to follow the provisions in this settlement regarding characterization of settlement funds. Social Security may be able to take credit against funds I receive in this settlement according to their own formula. Social Security may consider these funds in the calculation of assets for purposes of determining eligibility. Further, I understand that there is no combination of words in a settlement that has proven universally acceptable to Social Security in reducing their claim for credit, but that this varies from office to office of the Social Security Administration. Thus, I understand that my receipt of money under this settlement agreement may result in my Social Security disability benefits being reduced. Despite these risks, I choose to proceed and settle this workers' compensation claim, knowing that there may be an adverse effect on Social Security or Medicare benefits or both.


The Issue of “Special Needs” Trusts To Protect
The Receipt of DIB and/or SSI


As there are no significant income or resource
limitations on the receipt of DIB, Special Needs
Trusts are not really an issue for a DIB recipient.
It is when one receives SSI that Special Needs
Trusts become an issue. The following does not
consider a continuing “Medical Expenses” coverage
for a work-related injury as part of a workers’
compensation settlement as being an issue related
to a Special Needs Trust consideration.

If one is receiving SSI and desires to have funds set
aside for a “special needs,” certain requirements
must be met. The money must be held in a fund that
is separate and distinct from any other funds
available to the recipient and, most importantly, the
funds can only be used for “medical” expenditures
not covered by SSI or Medicaid (In California this is
Medi-Cal).. Any other use is prohibited and will result
in having the funds assessed against the SSI
recipient’s resources. In such a case, the funds may
be considered as “excess income” and result in a
reduction or cessation of SSI benefits.

These are hard requirements and not many SSI
recipients can meet them – either because they do
not have a “medical” expenditure not covered by SSI
or Medicaid or they can’t structure their situation to
meet the requirements.

If there is a consideration of forming a “special
needs trust” with workers’ compensation settlement
proceeds and the client receives SSI, an SSA
practitioner should be contacted for assistance and
information as to the latest SSA regulations covering
such a situation – before the settlement funds are
released to the client.

 

Special Needs Trusts


Frederick George Craw is a solo practitioner in
San Francisco. Since 1984, he has specialized in
labor and employment law and Social Security and
SSI law. He has represented more than a 1000
claimants before the Social Security Administration
from the Initial claims stage through judicial review
and appellate levels.

For more information, click here.

Frederick George Craw, Esq.
1232 Market Street, Suite 102
San Francisco, CA 94102-4803
(415) 861-5656
fgclaw@aol.com



 


DIB and SSI Issues for the
Workers' Compensation Practitioner
By Frederick George Craw, Esq.

Frederick George Craw specializes in Social Security and employment law. In this article he explains how to spot Social Security issues and what to do at time of settlement to protect the injured worker’s rights to Social Security benefits.
> Computer Corner
> People Who Made a Difference
> The Doctor's Office
> The Vocational Expert Witness
> DIB and SSI Issues
> Get Short or Long Term Disability