One of the most disturbing problems faced by a working person is where and how to obtain income when you are disabled and can no longer work, or cannot return to work for the foreseeable future. This article discusses benefit programs for disabled or injured workers and non-workers.
The Social Security Disability Insurance (“SSD”) program is for those with a substantial history of work “on the books,” and benefits are roughly correlated to your average salary, but are not a salary replacement. The SSD benefit program comes with valuable Medicare benefits, no matter your age. Too, you can obtain “auxiliary” benefits for a spouse and/or your minor children.
For those with little or no work history, the Supplemental Security Income (“SSI”) program requires no specific work history, but is means-tested, i.e., there are limits to the income and assets you are able to have and still be eligible for this benefit program. SSI income also provides Medicaid benefits to those who would income-qualify for Medicaid.
Finally, for those workers fortunate enough to have access to employer-provided long-term disability (“LTD”) insurance benefits, such benefits are available to those workers who are no longer able to perform the substantial duties of their regular occupation. However, these benefits can also be difficult to obtain – your employer does not decide who is eligible for these benefits – the insurance carrier does. Therefore, the injured worker will not be dealing with his/her employer, but the insurance carrier which administers the policy paid for by your employer. The carrier will decide whether or not you qualify for such benefits and for how long.
It is no secret that SSD and SSI benefits are becoming more difficult to obtain. Most recently the Social Security Administration (“SSA”) has set forth new Regulations which govern how your case will be decided at the hearing level, the second level of appeal on your journey to collect these benefits. It has always been the case that you, as the disabled worker, have to prove that you are entitled to these benefits. However, requirements for such proof have changed, making it easier for SSA to deny benefits rather than to grant them.
Despite what people read in the newspapers and online, these benefits are very difficult to obtain. Over 70% of initial claims are denied, with over 80% of claims denied at the second stage, the reconsideration stage.
Similarly, LTD benefits have become increasingly more difficult to obtain, with insurance carriers now conducting video surveillance on applicants and hiring vocational experts to dispute your allegation that you are unable to perform the substantial duties of your occupation or, later on, any occupation.
But your quest for these benefits is not an impossible journey. Your best weapons in pursuing these benefits are your doctor and your attorney. In almost all cases concerning these benefits, attorney fees are not collected unless the worker receives the benefits. Even then, at least in SSD/SSI cases, the government must approve the fee requested. Additionally, in LTD cases, the insurance carrier knows that the worker’s attorney can request, and receive, some funds toward payment of the attorney fee from the carrier.
An attorney experienced in obtaining these benefits for disabled workers knows exactly what kind of medical information is needed to substantiate you claim, and when and how to present it to those who must decide if you are to receive the benefits. In addition, your attorney will cross-examine any SSA expert witnesses at your hearing. The attorney receives the same fee – 25% of past-due benefits – whether he/she is retained during the initial application phase or the day before your hearing, so retaining the attorney as soon as possible means that he/she will have more of a say over what goes in the record the ALJ will read at the hearing. Too, in the case of LTD benefits, all of the evidence has to be in at the Administrative (pre-court) level; once your case goes to Federal court, your medical record cannot be supplemented. Therefore, medical development of the Administrative record is more crucial to the outcome of your claim than the Federal court appeal (if one should become necessary).
Josephine Gottesman – Attorney at Law