Happy 2015 to everyone out there. A recent law change has made a change to the workers’ compensation offset age. A prior post here discusses the basics of the offset. Currently, the Department of Labor & Industries takes the offset until a worker reaches age 62. Then the offset shifts to the Social Security Administration (SSA) at age 62. The change in the law is the age in which the offset reverts BACK to the Department of Labor & Industries. Previously, the offset switched back at age 65. Now, the offset from SSA will apply until the worker reaches their “full retirement age.” “Full retirement age” is currently 66 but it is gradually increasing to 67 for those born after 1958. You can find your “full retirement age” here. Questions? Let us know.
Social Security Disability
Government shutdown and your Benefits
I’ve avoided posting anything about the Federal Government shutdown, because I had hoped it would be short-lived. Now that we are dragging into week 3, it seems some basic information may reduce some concerns.
The Federal Government shutdown does not affect your Washington State L&I benefits in any way. So, you have nothing to be concerned about.
If you have a Federal Employees Compensation Claim (FECA) and you receive benefits, these benefits will also continue, at least for now. OWCP personnel assigned to the FECA side of OWCP have been designated essential, and are continuing to work so that benefits and claims can be timely processed. No idea if this will change if the shutdown was to drag on for months, but we’re going to be optimistic here.
If you are receiving benefits under a Federal Longshore and Harbor Workers claim, Black Lung claim, Non-Appropriated Fund claim or Defense Base Act claim, your benefits will continue. Although these claims are created by Federal Law and may be overseen by an agency of the Federal Government, your checks come from a private insurance company so are not affected by the shutdown. If you are receiving benefits from the Special Fund, some personnel have been designated as essential and checks will be processed. However, the Administrative Law Judges who hear these types of cases have been furloughed. This means Hearings are being cancelled as they approach, Decisions & Orders are not being written, settlements are not being approved, subpoenas are not being issued, Motions are not being heard. . . you get the picture. Likewise, all personnel on the Longshore side of OWCP have been furloughed. This means referrals to the OALJ are not being made, Informal conferences are being canceled, Informal Recommendations are not being made, disputes surrounding medical treatments are not being evaluated, and ALJ Orders are not being served. In a nutshell, if you are already receiving benefits, you will not see an impact. If you are awaiting some action or adjudication on your claim, everything is on hold.
If you receive benefits from the Social Security Administration, your benefits will continue, again, for the foreseeable future. Hearings are moving forward where they were already scheduled, although I understand new Hearings are not be calendared at this point.
Social Security Disability Hearings: Should you accept a video hearing if offered?
The Office of Disability Adjudication and Review (ODAR – where the administrative law judges who do hearings are assigned from) has a program where they offer hearings at remote sites where the judge and many times medical or vocational experts appear via video or audio connections. Is this a good idea?
This technology has been used for several years but seems to be picking up steam as means to save travel costs for judges in a time of tight budgetary constraints (yes, even some federal agencies have to tighten their belts). In this technology the claimant (and representative if he/she has one) appear at one hearing site and the judge is at another (in this area usually Seattle, although sometimes to help reduce the backlog a judge from some other region will participate via the video process).
When these first started the technology was very poor and the images were choppy, the sound sometimes a little garbled and frankly they were a very poor way to have a hearing on something as important as ones right to disability benefits, a decision making process that would very significantly affect the claimant’s future. However the technology has improved some to where the flow of images and sound is fairly consistent and clear. Certainly not yet the equivalent of cable TV (analog not even close to digital or HD) but better technology has arrived to the point where consideration of the video hearing might be appropriate if the positives might outweight any negatives from doing it in that manner.
I have often described to my clients that the hearing process is that time where the judge, serving as the final gate keeper to the social disability benefit access, must carefully listen to the claimant and look him/her in the eye and make a decision (assuming the medical evidence will also support a favorable decision) about putting the claimant on disability benefits for what might in most cases be for the rest of their lives. This is an important decision not only for the claimant but for our social security system. We all want to reserve the system for those who truly are qualified and deserving, denying those who chose not to work and seek some form of government support. So, I have always put great importance in how my clients have presented to the judge and have made sure that they understand that the judge is that final gate keeper and he/she will look them in the eye and make very important mental impressions and later decisions about whether to believe what they are told about the nature and extent of disability the claimant has. When my clients have the time to prepare how to describe how their medical conditions prevent them from even living a normal life, let along working, and then look the judge in the eye and with conviction convince the judge of the truth of what they say it almost always results in a favorable outcome (assuming we’ve been able to gather medical evidence that describes the conditions and offer medical opinions about the general limitations imposed by them).
All of this is lost with a video hearing. Even with large projection screens (they’d be great for a football game or the World Series) the judge is usually a relatively small figure and with unprofessional lighting (using the lighting already in the hearing room with no effort to properly light the participants so they are better visible to those watching in remote sites. While I’ve not been on the other side, I can only assume my client and I are similarly relatively small and with no additional lighting make a less than ideal image to try to look my client “in the eye” and judge his/her credibility. This does a disservice to the entire hearing process.
In addition, many times the medical expert (hired by ODAR to help the judge understand the sometimes complicated medical evidence presented in support of a claim) or vocational expert (also hired by ODAR to advise the judge on vocational issues including better understand the claimant’s past work and trying to identify work the claimant can do given any limitations the judge feels are appropriate given the medical evidence and the claimant’s testimony) are also appearing by video or even audio connections (telephone). When they are not at the same site with the claimant the benefit of the claimant’s testimony is largely lost. A medical expert was unable to benefit from watching the claimant testify and being able to “see” the pain in their faces as they testify is going to be less sympathetic in advising the judge about limitations that might be medically appropriate for the claimant. A vocational expert not present is probably less likely to have an opportunity to testify in a manner favorable to a claimant who he/she believes is honestly presenting their condition, but there are times when a claimant’s physical/mental abilities might be close to performing a job, but where the vocational expert might offer some barrier to the position based on his/her perceptions gained through the course of the hearing and thus eliminate it from consideration. A little sympathy cannot hurt and it is lost without the ability to see the claimant in person.
So, that’s a long way of suggesting video hearings are generally not a good idea. The only benefit is possibly to be able to get a hearing scheduled sooner than waiting for judges to travel to remote sites, but if the net result is to have a greater chance to lose the hearing then there really is no benefit. At this point, I’d only consider advising my clients to agree to video hearing if I’ve been able to develop overwhelming medical and vocational evidence supporting their claim and can see not real way that the outcome would not be favorable. Otherwise, I advise ODAR that we’ll wait for a “live” hearing. The delay does not have to be significant. As an example in late May 2008 we were notified we’d been scheduled for a video hearing for June 30 (we were to appear in Olympia, the judge and vocational expert would be in Seattle). We advised the judge that was not acceptable and were then able to wait and have a “live” hearing in Olympia in mid September. While that is a 2½ month longer wait, when hearings take up to two years to achieve, a small additional wait is well worth improving the changes of success. One additional note, by insisting on a “live” hearing we did lost the availabilty of the initial judge we had scheduled in June. That can cut both ways depending on which judge I might consider more conservative (less likely to award benefits) or more liberal (more likely to award benefits), but that is a good subject of another blog another day…
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.