On The Job Injuries

Social Security, Medicare & Your Workers’ Compensation Settlement

RECEIVING BOTH A TTD CHECK & A SOCIAL SECURITY DISABILITY CHECK

This writer has unfortunately observed that most Oklahoma Workers’ Compensation Lawyers and Attorneys mistakenly but probably intentionally tell their clients that they absolutely cannot draw a workers’ compensation TTD check and a social security disability check at the same time and for the same period. This is absolutely false and even if done unintentionally can lead to disastrous results for the attorney’s workers’ compensation client(s). Consider the following:

AN INJURED WORKER WILL ALWAYS RECEIVE MORE OVERALL INCOME DRAWING BOTH A WORKERS’ COMPENSATION TEMPORARY TOTAL & SOCIAL SECURITY DISABILITY CHECK. Although your monthly social security check will be reduced or offset by and to the extent you receive a weekly workers’ compensation TTD check, the offset or reduction is never absolute or 100%. As such–you will always make more money on a monthly basis drawing both a workers’ comp TTD check and social security check at the same time. This is particularly critical to those injured workers receiving a weekly TTD check capped out at the maximum weekly rate, reducing their weekly income amount to something less than the normal 7o% received by those not suffering under the statutory cap. (NOTE: Calculating the workers’ compensation offset on your social security check is discussed in more detail elsewhere on this site)

WHEN AN INJURED WORKER’S WEEKLY WORKERS COMPENSATION TTD CHECK IS TERMINATED BY THE INSURANCE COMPANY HE OR SHE WILL STILL HAVE AN INCOME IF SHE OR HE IS ALSO ON SOCIAL SECURITY DISABILITY. Pursuant to Oklahoma law, an injured employee’s workers’ comp TTD check will be terminated by the insurance company upon the hurt worker reaching maximum medical improvement (or “MMI”) according to the opinion of the worker’s treating doctor. This is true even though the injured worker: (1) has not been offered a job by his or her old employer or even another employer; (2) has permanent restrictions which prevent him or her from returning to his or her usual work; &/or (3) is permanently and totally disabled. In such case this hurt employee can and will be without any income whatsoever until he or she can get his or her case to workers’ compensation court and get either a permanent disability award or settlement, which most typically could take several months to achieve. It should not be surprising that most insurance companies use this period of time when an injured worker is without his or her workers’ compensation check to ‘starve’ the worker out and to force the injured employee into accepting a small settlement–a mere fraction of which would be reasonable–instead of simply waiting to go to court to get a more favorable settlement or permanent disability award. A worker instead choosing to draw both a workers’ compensation TTD check and a social security disability check simultaneously will not only continue to draw his or her social security check upon reaching maximum medical improvement and experiencing the termination of his or her TTD benefit, but will also see his or her monthly social security check rise to its maximum amount, since the social security check will no longer be subject to an offset as the worker’s TTD check has stopped and hence there will no longer be an offset. As one can easily see–an injured worker continuing to receive his ongoing social security disability check will fare much better financially upon termination of his or her workers’ compensation TTD check and can usually wait to settle or otherwise resolve his or her workers’ compensation case on much more fair and reasonable terms. Certainly he or she will less likely be ‘starved out’ by the insurance company as one choosing to draw workers’ compensation alone.

AN INJURED WORKER ONLY REMAINS INSURED FOR SOCIAL SECURITY DISABILITY BENEFITS FOR A LIMITED PERIOD OF TIME AND CAN LOSE HIS OR HER INSURED STATUS IF HE OR SHE WAITS TO FILE FOR SOCIAL SECURITY UNTIL AFTER HE OR SHE SETTLES HIS OR HER WORKERS’ COMPENSATION CASE An injured worker only remains insured for social security disability benefits for a limited period of time–and must prove that he or she was disabled during that period of time if he or she hopes to ever receive his or her social security disability benefits &/or Medicare. When an employee works and pays money into the social security trust fund (FICA taxes) he or she earns valuable quarters of coverage to pay the employee and his or her family benefits for death, disability or retirement the worker may experience in the future. When a worker accumulates a certain number of quarters of coverage (usually 20 quarters of coverage during a 40 quarter period of time) he or she becomes ‘insured’ for social security disability benefits and Medicare. However, when a once productive worker becomes injured and quits working he or she only remains insured for a certain period of time following his or her discontinuing work. As such–if an injured employee, upon the request of his or her workers’ compensation attorney or otherwise, waits to file for social security benefits until after he or she settles or concludes his or her workers’ compensation case, he or she may well at that time have lost his or her insured status for disability benefits. If this occurs, the currently uninsured employee finds himself or herself desperately trying to prove that he or she was medically disabled at a time which could be in the distant past. In this writer’s experience it is much easier to prove that a worker is disabled with current medical evidence and at the present time then trying to reach back in time and prove the same. A Social Security Judge is also much more receptive to finding disability for a given worker in his or her court when evaluating such worker’s current medical status as opposed to considering his or her ability to work in the day. Most important is the following: if an when an injured worker loses his or her insured status and otherwise has not established that he or she was disabled at or before that time-his or her chance to draw disability benefits will be forever lost and the only way to get it back will be for the worker to return to the workforce and earn additional quarters of coverage.

IT IS MUCH EASIER FOR AN INJURED WORKER TO PROVE ENTITLEMENT TO SOCIAL SECURITY DISABILITY BENEFITS WHILE THE WORKER IS ACTIVELY ENGAGED & UNDER WORKERS’ COMP MEDICAL TREATMENT VERSUS WHEN HE OR SHE HAS BEEN RELEASED BY TREATMENT & OTHERWISE SETTLED HIS OR HER CASE. Normally when an hurt employee is under medical care for a workers’ compensation injury his or her treating doctor will have him or her either “TTD” or under harsh or severe work and activity restrictions. In contrast–when an injured worker has been released from treatment and placed at “MMI” by his or her treating physician this doctor will undoubtedly increase the worker’s limitations and will certainly give the worker ‘permanent restrictions’ which are much less restrictive–or even worse will release the worker without any restrictions at all or to “full-duty” status. This is particularly true if the injured worker’s treating doctor is his or her treating surgeon who actually did the worker’s surgery (since certainly in this surgeon’s own opinion he or she did great work and hence the worker certainly is capable of returning to work after he or she recovers from such a ‘successful’ surgery). It should be easy to grasp, therefore, that it is much easier for an injured worker to prove that he or she is disabled for social security purposes while in the midst of his or her aggressive and ongoing treatment, surgery, and such during the treatment he or she is receiving under his or her open worker’s compensation case–as opposed him or her trying to prove social security disability once his or her case and medical treatment has ended and the case has been settled. When questioned by a social security judge about why the worker in such a situation who has settled his or her case and is no longer entitled to medical treatment is not currently under treatment at the time of the hearing any excuse that the employee’s workers’ compensation case has been settled and hence the worker is no longer entitled to any further medical treatment is not acceptable. Any social security judge will require that the person requesting social security disability benefits be under fairly aggressive medical treatment and restrictions at the time the case proceeds to his or her court. If the compensation case has settled and the worker has discontinued treatment, in this writer’s opinion no excuse will be found acceptable to the social security court to explain the either lack of treatment or sporadic or nominal treatment currently being received by the injured worker. A typical and realistic example is in order:

An injured worker has sustained a low back injury and has had a lumbar surgery. He is recovering from the operation and his or her treating surgeon has him or her either “TTD” or even given temporary restrictions of no bending, twisting or lifting more than 10 pounds. That would only allow this worker to be capable of performing sedentary work as defined by social security regulations at best. If the judge was to follow these work limitations [which in most instances he or she would be required to] based upon the worker’s education and such this worker would probably be found disabled and entitled to a social security check. In contrast–this same injured worker with the same injury and surgery will probably eventually be released with a 50-pound permanent restriction with no other limitations. Therefore–if he or she waits until after he or she has been released from treatment and settles his or her case to file for social security benefits he or she will then find themselves sitting before a social security judge with limitations fully allowing him or her to perform the full range of medium work–which the judge will use to find that the worker is certainly able to return to the worker’s usual work or other less physically demanding work–and deny the worker’s claim for social security benefits altogether based upon the treating doctor’s much less restrictive permanent restrictions or even find that the worker’s period of disability for social security benefits in fact ended on the exact date the worker was released from treatment by his or her treating surgeon and given permanent restrictions allowing some form of work.

EVEN IF THE SOCIAL SECURITY JUDGE FINDS AN INJURED WORKER DISABLED ALL THE WAY BACK TO HIS OR HER DATE OF INJURY ON THE WORKERS’ COMPENSATION CASE, SOCIAL SECURITY BENEFITS BY LAW CAN ONLY BE PAID RETROACTIVELY FOR ONE YEAR BEFORE THE INJURED EMPLOYEE FILES HIS OR HER SOCIAL SECURITY CASE–Thereby resulting in the hurt worker giving up or losing years of backpay if he or she waits to file his or her social security case until after he or she settles his or her workers’ compensation case. By law social security disability insurance benefits can only start of be paid retroactively one year before the disabled worker files his or her application for social security benefits. Therefore–if an injured worker’s case settles three years after he or she is injured and quits working (many workers’ compensation cases take that long or longer to settle) and he or she immediately files for social security benefits (which would be difficult to do after he or she makes his or her record at worker’s compensation court to settle his or her case as discussed further below) he or she will at a minimum be automatically forfeiting two years of back pay from social security if ultimately awarded benefits. As should be clear from anyone reading this–an injured worker will immediately start and will continue to lose backpay on his or her social security case if his or her application is not made on or before the one-year anniversary of his or her worker’s compensation injury. Certainly anyone wishing to maximize benefits in both their social security and workers’ compensation cases will file his or her application for social security within one year of his or her getting hurt and missing work.

NORMALLY AN INJURED WORKERS’ SUBSTANTIVE MEDICAL TREATMENT ENDS WHEN HE OR SHE SETTLES HIS OR HER WORKERS’ COMP CASE-HOWEVER, ONE WHO HAS FILED AND IS RECEIVING SOCIAL SECURITY DISABILITY WILL BE ENTITLED TO AND WILL BE ABLE TO RECEIVE ONGOING MEDICAL CARE & TREATMENT AFTER HE OR SHE SETTLES HIS OR HER COMPENSATION CASE THROUGH AND WITH HIS OR HER MEDICARE BENEFITS Once an injured worker receives and becomes able to receive his or her social security disability benefits and following a prescribed waiting period–he or she will then become eligible to receive and use Medicare to pay for his or her medical treatment-whether related to the injured worker’s compensation case or for an unrelated medical condition or problem. In contrast–any worker who waits to file for social security disability benefits until after he or she settles his or her workers’ compensation case or is otherwise released from care by his or her treating doctor or surgeon will immediately find themselves without any medical insurance or other means to pay for this worker’s ongoing medical treatment needs, particularly since even if the worker files for social security immediately upon being released from treatment or once he or she settles his or her case it still will take several months or up to a few years for the hurt worker to both win his or her social security case and become eligible for Medicare benefits, a period during which the worker will unfortunately be wholly uninsured. NOTE:An injured worker is entitled to have any of his medical expenes not covered or otherwise ordered paid by workers’ compensation paid for by his or her Medicare-even if for treatment directly related to his or her work-related injury.

AT THE TIME AN INJURED WORKER IN OKLAHOMA APPEARS IN COURT TO SETTLE HIS OR HER WORKERS’ COMPENSATION CASE HE OR SHE MUST AFFIRM, UNDER OATH & PENALTIES OF PERJURY, THAT HE OR SHE HAS NOT FILED FOR SOCIAL SECURITY AT THAT TIME AND FURTHER THAT HE OR SHE DOES NOT INTEND AND WILL NOT FILE FOR SOCIAL SECURITY WITHIN THE NEXT THIRTY (30) MONTHS Once an injured worker &/or his or her attorney or lawyer reaches an agreement to settle the hurt employee’s work comp case Oklahoma law requires the worker to appear at either the Oklahoma City or Tulsa Workers’ Compensation Court to make a detailed record of the terms and conditions of the settlement and the injured worker’s agreement to and understanding of the express terms of the final settlement. The proceedings related to the settlement hearing will be taken down by a court reporter and transcribed. Most importantly the injured worker will be placed under oath to tell the truth under penalties of perjury. Among other questions the injured worker will be asked most probably by the insurance company’s lawyer will be whether the worker has or intends to file for social security disability benefits in the next 30 months. Unless the injured worker &/or his or her attorney on the one hand and the insurance company on the other have previously made arrangements with or to otherwise protect Medicare’s rights as far as who pays for the further medical treatment related to the worker’s on-the-job injury the worker must unequivocally state under oath that he or she indeed has not filed for social security disability benefits and furthermore that he or she has no intentions whatsoever to file for such social security benefits in the next 30 months. If the injured worker has successfully returned to full-time gainful work or is darn sure he or she is or will be capable of returning to long-term, full-time, competitive work from which he or she will be able to financially support himself or herself and said worker’s family–then that worker can affirmatively state that he or she has not filed for social security disability benefits at the time of the settlement hearing and furthermore and probably more importantly that he or she has no intention of filing for social security within 3o months of the settlement. Anybody else not fully capable &/or confident of his or her ability of returning to full-time, long-term competitive work which will financially support himself or herself settling his or her case has problems concluding their workers’ compensation case under these rules and terms, and in this writer’s opinion should not do so. If an injured worker has genuine concerns over his or her ability to sustain and return to full-time, competitive, financially sustaining work he or she should go forth and file for social security disability benefits as early as practible and either: (1) not settle his or her workers’ compensation case and go forward to court and get an award for either permanent total or permanent partial disability benefits (the latter including an award of job retraining and rehabilitation); or (2) have his or her attorney make appropriate arrangements and otherwise get approval from Medicare to settle his or her workers’ compensation case for a fair and reasonable amount with such settlement agreement specifically providing that the workers’ compensation insurance company put a certain amount of the settlement proceeds aside to pay for the injured workers’ future medical expenses related to his on-the-job injury–thus protecting Medicare from having to unjustly pay medical expenses rightly the responsibility of the workers’ compensation insurance company.

Understanding that a worker sustaining a severe, permanently disabling injury could well be under treatment for a period of 2-3 years before he or she would be in a proper position to settle his or her case, and that at the time of the settlement of his or her case he or she would be required to affirm, under penalty of perjury, that he or she has not and does not indend to file for social security disability benefits within 30 months of the date of his or her settling the case–could find himself or herself, according to the express terms of his or her affirmation in court, to be unable to legally file for social security disability benefits for a full five and one-half years following his or her on-the-job injury and his or her becoming totally disabled from work. Certainly by this time the injured worker will have long since lost his or her insured status (discussed above) and even if ultimately found disabled will still have given up at least four and one-have years of backpay (understanding that past-due benefits can only be paid at most one year prior to the date the injured worker actually puts in his or her application for social security disability benefits-also fully discussed above). Also, considering that it can easily take up to 2 years to win a worker’s social security case even after he or she files his or her application for benefits-this same worker settling his or her workers’ compensation case without making proper arrangements could now see seven and one-half years elapse before he or she will even see his or her social security benefits. All told–serious consideration should alsways be given by any Oklahoma worker thinking about settling his workers’ compensation case who also has real doubts about his or her ability to return to gainful work.

Anyone reading this article will undoubtedly wonder, considering the serious negative consequences of a worker settling or otherwise proceeding with his or her workers’ compensation case without first considering the benefit of obtaining and receiving an award of social security disability benefits, why an injured employee’s workers’ compensation attorney would incorrectly advise and tell them that it is not possible for him or her to draw both workers’ compensation TTD benefits and a social security check at the same time. Perhaps It could possibly be that the injured worker’s attorney is simply misinformed. In this writer’s opinion that is probably not the case. Undoubtedly and unfortunately in almost all cases in this writer’s experience it boils down to simple lawyer self-interest and attorney fee “greed”–as it is certainly easier and quicker for an attorney to get paid his attorney fee if the worker does not file for social security disability benefits and simply settles his case. The injured worker’s attorney simply settles the case and moves on to the next file. As discussed above–if an injured worker indeed appropriately files for social security–to conclude his or her case his or her attorney would be required to either: (1) make appropriate pre-arrangements with Medicare and obtain social security approval for a tentative settlement which would require the work comp insurance company to put a certian sum aside to pay the injured worker’s future medical related to his or her on-the-job injury; or (2) simply go to court and try the injured worker’s case and obtain an order for either permanent partial or total disability. Certainly an injured worker needs to protect himself and herself when it comes to making an informed decision as to when and if to apply for social security disability benefits while in the midst of his or her workers’ compensation case.

Attorney Case Review

On The Job Injuries

Social Security, Medicare & Your Workers’ Compensation Settlement

RECEIVING BOTH A TTD CHECK & A SOCIAL SECURITY DISABILITY CHECK