Social Security and Workers Compensation

 

We have many clients who receive benefits under both their workers compensation claim and a Social Security Disability claim. This is absolutely allowed, and may well increase your overall monthly income. You can collect both benefits, up to a cap of 80% of your highest average annual earnings.  Because everyone’s earning are different, everyone’s 80% cap will be different.  The Social Security Administration (SSA) has various formulas for figuring each person’s highest average annual earnings, and they will use the formula which is the most advantageous to you.

 

Individuals with a high earning history will have a high 80% cap, and may get nearly the full benefit of both the Social Security Disability and Labor & Industries (L&I) benefits. Workers with a lower earnings history will have a lower 80% cap, and payment of either Social Security or L&I benefits alone may put the worker at or near the cap. If combined benefits exceed the 80% cap, either the SSA or L&I will take an offset, reducing your payments to the 80% cap. 

 

If you have applied for Social Security Disability benefits and your application has been denied, it is important to Request Reconsideration. The denial will come with instructions for how to make such a request, and the timeline for doing so. It is important to request reconsideration within the time allowed.  You do not need an attorney at this stage.

 

After you have requested reconsideration, you should work with the SSA to provide all the up to date information about your condition. Keep in mind that for purposes of Social Security Disability it does not matter what caused the particular condition, or whether the condition is related to a work injury. Social Security looks at your complete medical and/or psychiatric picture.

 

If you application is denied a second time, this is when you should contact an attorney. At this stage your claim is moving toward a Hearing. Hiring an attorney will assure you the best possible chance of obtaining a favorable result.

 

While you can collect benefits under both a Social Security Disability and a workers compensation claim, they are two completely different systems. Obviously, one is a Federal benefit and one is a State benefit. Beyond that, each system uses its own criteria for determining total disability. Being found totally disabled under one set of guidelines does not necessarily mean you will considered disabled under the other. A decision by one agency is not binding on the other agency.  It can be a bit of a maze. But, applying for Social Security Disability benefits when you have a long-term work related disability can be to your advantage. Get the ball rolling, and call for help if your application is denied a second time.

23 thoughts on “Social Security and Workers Compensation

  1. I was injured at work and was receiving time loss payments, and it was not enoughf to live on. My L&I appointed vocational counsler said that I should draw early social security ( I was 63 at the time) and that would be a big help with my bills. I did, and no sooner than I got my first retirement check, Labor and Industries attached it!!!!!!!!! I was coersed to take early retirement by L&I so that they would get my check to help to pay me!!!!!!!!!REDICULOUS.

  2. I don’t think L&I ‘attached’ your Social Security. It does sound like there was an offset. Your combined Social Security and L&I benefits were probably over your 80% cap. (That is, 80% of your highest average annual earnings) So, either L&I or the SSA (depending on your age) reduced their payment to keep you at that 80% cap. It may be that L&I is paying less, but your monthly income is likely higher when you receive the combined benefits, then it would be if you received just one or the other. That is why the vocational counselor suggested you draw your Social Security – because your overall monthly income would be higher.

  3. who gets the offset. Can we choose for L&I to get it instead of Social Security? Reason is that when time loss payments stop, it will take Social security a long time to get us back to full payments.

  4. My husband was injured at work on the 21st of May and has been on time lose payments most of the time since then. After his 12 weeks of family leave was used up, the company canceled his medical insurance and other benefits. His time lose payments went up $360.00 every two weeks to compensate for the medical and all. He has other health issues and is 58 years old, so we put in for his social security disability and it was approved. Will social security figure the offsets just on the wage portion of his time lose, or will they also deduct for the medical benefit reimbursement that he is receiving? doesn’t seem fair that they could take away the portion that is to compensation for lost benefits, if there wage calculations to not take benefits into consideration.

    • The short answer is “yes”. Social Security is going to consider the entire TL payment when any offset is calculated, even the portion for the employer provided health care benefits. The amount is thought of as consideration which is “like wages” – which is why it was included in the first place.
      To answer the second question – No, you do not get to pick who takes the offset. L&I will get the benefit of the offset until your husband turns 62 – which means he will be receiving his full Social Security benefit already if the time loss benefits stop. Between ages 62 and 65 there is a glitch in the law, and the Social Security Administration will take the offset.
      If your husband is unable to return to reasonable continuous gainful employment, he may be permanently totally disabled, and entitled to an L&I Pension benefit. If there has not already been a vocational referral on the file, there will be soon. He should definitely talk to an attorney to make sure he avoids any missteps, and receives the benefits he is entitled to receive.

  5. I’m still confused.. will his currrent earnings # from SSD be based on just his payroll amount, (about $39,000 annual) or on his payroll plus employer paid benefits (about $53,000). thanks for your help.

  6. I was ijured a few years ago and am now on total disability with L&I and as they suggested I applied and was granted SSI disabiliy. Everything was caculated (offset)ect. that was two years ago, now I recieved letter that L&I is going to offset about $650. Well I used my settlement for a down and my SET income with the Bank for morgage payments, now with this Ille be homeless.

    Is there any kind of time limit on offsets, especially when its set in stone and verified. Thank you

  7. I was ijured a few years ago and am now on total disability with L&I and as they suggested I applied and was granted SSI disabiliy. Everything was caculated (offset)ect. that was two years ago, now I recieved letter that L&I is going to offset about $650. Well I used my settlement for a down and my SET income with the Bank for morgage payments, now with this Ille be homeless.

    Is there any kind of time limit on offsets, especially when its set in stone and verified. Thank you Randy

    • The easy answer to your question is no – there is not a set time limit. The Department can calculate the offset whenever they get the information. There is a limit to how far back they can go to collect an overpayment which may result form the new calculation – but that does not seem to be your question. It does seem odd that such a large change is taking place. It is possible that you are in that 62 to 65 year old offset loop, and maybe it is not as bad as you think. Washington is a reverse offset State – there are only a handful. Up until age 62 the State takes any necessary offset, and the Federal Government pays the full SS benefit. Because of a weird glitch in the law, between age 62 and 65 the State can not take the offset, but the Federal Government does. So, L&I pays your full benefit, and SS pays less. At age 65, it switches back – L&I reduces payments and takes the offset, and your full Ss benefit is paid. It is possible you are in the last part of this loop. L&I has notified you they are once more taking the offset, so SS should be paying the full benefit. If this sounds like what might be happening, call SSA and let them know Washington is a reverse offset State, and L&I is reducing your benefit. They should be able to tell you if your SS benefit will be increasing.

    • Once you reach 65 and L&I takes the offset, would that still apply if L&I started paying you a pension instead of time loss?

      • Thank you so much for responding to my earlier question. I may be contacting your firm for advice as for three years, 2010-2012, SSDI overpaid my husband. I tried for those years to convince them of this but not until 2012 did they send us a bill for overpayment. We repaid all in 2012. When we receive his 1099 for 2012 it did not state the $38k repayment. I have been battling since January to get an amended 1099 but they say they plan to put it on the 2013 1099. Tax wise we were already hurt having to claim the income and it would be more beneficial if we could take the credit for it in the year we paid it. They have been very nonresponsive, but we just put another request in three weeks ago. Frustrating!!! We feel like we have been a victim of their errors and wish he had never applied for SSDI!!

      • Much as I would like to help you – sounds like you need a tax attorney, not a workers comp attorney. The tax field is very specialized, as you might guess.

  8. what is the law regarding if you worked 40hours and now pce and doctor and vocantional saying you can only work 3=4 hours daily my doctor says i will get a pension is that right and what happens now

  9. ive ben on l an i since jan 2004 day i was injured i was covered and my employer payed for medical. wen i filled out compensation paper work, i was hurt i did not list the insurance thing and did not list my kids. was able to fix part about kids. the doc said i would be good to go, 3 back sur. and a hip replacement that should took place back in 2004. but did not happen until june 2007, was recalled and hurt worse than factory junk, this is were i get mad,from day one after back surg. 4/26/04 i complained of a bone type pain in groin up thigh,and he said no its nerves,see him every two weeks developed atriphy, not once in over 135 visits, did he order ct scan. but he did finally refer me to vocational outfit for testing, i informed the guy that i could not even begin to sit the amount time for testing,told him for a fact that i hurt so bad that i have to drink a bottle of booze. and that was just so i did not check out, he told me show sober i passed out at his computer in turn he wrote that goes to every one, it stated that i just drug addict drunk,only drank because doc said i was fine there for did not need pills. and i in his opinon was more than fit to go back to work. got my termination paers from l an i . called my case manager and asked her to look at all the visits. and requests from me for some tests.she got me in for c t scan radiation. that thursday, see doc on friday hip needed to be replaced back in 2004.and they discovered i needed more back surg. as well, doc gives all kinds pills. so back done in march, left total hip june 28/07. 21 days in hospital. hip no good again doc. not doing sqwatt. him and i part ways december 2010 get a new state salary doc. he has under knife for the 2nd total hip replacement may 5 2011. here is were i get bet over. legal folks tell me that since i was already on diss. we injured i was not allowed to go after pain suffer lost wages. this has by now cost me my whole life i had noithing love of my life gone kids, i mean everyone in my life thought i makeing it up. of corse then it happens sorry but damage is done i have 500k in repos fore closer.i got out of this mess 85k.i still have 0 cause all bad debt.i had perfect credit until doc put out. how is this.Is this on doc part malpractice. over 135 visits and the only reason i finally got a scan was because i went to case manager. what he did to me for a free trip or golf clubs. l an i wont allow me my medical ins. because i did not respond in 60 day, i did not because doc told me not to worry, that i be back at work 6 weeks. but they more than happy to pay the fraud doc.

    • The department issues a wage order early on in most claims. That order establishes your monthly wage for purposes of paying benefits under the claim, including overtime, bonuses, and the value of employer provided health care benefits. It also states your marital status and number of dependents. If any of this information is incorrect, you have 60 days to protest or appeal. If you don’t, the order is final and binding. From your comments it sounds like the wage order did not list the employer provided health care benefit, but no protest or appeal was filed. If that’s the case, I’m sorry to say you are stuck with it.

      It does sound like you’ve had a horrible few years. Your spiral is, unfortunately, all too common with injured workers struggling with long term disability and multiple surgeries. You are angry and frustrated, and I don’t blame you. You lose control, you lose hope and dignity, you lose financial security and a sense of purpose. That is a terrible burden, and one too many of our injured workers have to face. The system is an imperfect one, and long term disability can drag down even the strongest injured workers.

      That said, where you go from here is entirely within your control. It is not easy, but you are the only one who can decide what’s next for you; not the claims manager at the department, not the doctors or vocational counselors. Have surgery, or don’t have surgery; participate in rehab, or don’t; Retrain and get back into the work force, or don’t; drink yourself into oblivion, or not. These are your choices, no one else’s. There isn’t necessarily a right or a wrong choice (although drinking for pain control is never a good idea) but they are choices, and you have to make them. There are resources to help you on whatever path you choose. The department will decide what benefits they are going to pay, and if you are entitled to more a good attorney will get them for you. But what benefits are going to be paid is not your life. I tell my clients not to decide what benefits they want, and then make choices to get those benefits – but instead to live the life they choose, and then I’ll maximize the benefits they are entitled to receive based on their choices. You have to decide what your life is going to be like, and start heading there.

      This advice may not be why you wrote to this blog – but I’ll put it out there anyway.

  10. I know a person who is 72, a widow and is collecting L&I and Social Security. (the L & I is from her husband who was hurt on the job and subsequently died from his injuries.) Is this possible for her to still be legally collecting both? It doesn’t seem right to me.

    • Yes, she can receive both benefits. Her husband either died from his work related injuries, in which case she is getting a widow’s death benefit; Or, he was found to be permanently and totally disabled and placed on an L&I disability pension benefit. Think of these benefits as replacing the workers’ wages, and contributions to their retirement and health care which can no longer be made because of an injury. Workers who are provided this benefit can choose an option to take a reduced monthly amount, which will allow their spouse to continue to receive benefits should he predecease her. And, Washington L&I offset payments for the receipt of Social Security benefits when those combined benefits exceed a maximum cap.
      The benefits injured workers and their families receive are modest, compared to their loss of earnings, or the loss of their loved one due to injury.
      If it makes you feel any better, there are many safeguards in place to make sure someone receiving benefits is not doing so fraudulently.

  11. Great information on this site!
    I began collecting SSDI
    Two years back. In the meantime I’ve been fighting a private insurance company that denied my wa workers comp claim.
    I hired a good attorney, and am on the brink of being pensioned. Can L&I offset my back award to the month I received SSDI? I know they can’t mess with my money prior to my SSDI award.
    Thanks,
    Scott

    • L&I can take the offset during any period of time the two benefits overlap. But if there has been an over payment by L&I because of the offset, they can only recover the over payment for the 6 months prior to giving notice of the over payment. Hope this information is helpful. By the way, don’t hesitate to ask your attorney these types of questions – that’s what we’re here for!

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