Tag Archives: Benefits

Can Social Media Participation Impact Your Benefits?

Many of us are enamored with social media. It is a wonderful way to communicate with those across the country, around the world or right around your block. It is a way to keep with touch with friends, acquaintances and even professional colleagues. However, in our world of ever increasing technology, there are ever increasing risks. We have seen time and time again on the nightly news reports stories of cyber crime, internet scams, child predators and the embarrassing things people post on the world-wide web. We often try to impart this knowledge to our children as their youthful indiscretions can come aback to haunt them as they start applying for jobs as employers regularly now google potential candidates. Websites such as MySpace, Instagram, Twitter and Facebook, while entertaining and useful, can also put injured workers at risk. It is easy to forget that a photo posted on social media can come up on many internet searches. It is easy to forget that the internet is not part of the private sphere but is the public square. It is also easy to forget that anyone can create a profile and seek to join anyone else’s network of “friends” on one of these sites.  That includes investigators who work for insurance companies and defendants attorneys.

By applying for benefits, you are stating that you are injured and are unable to work or only able to perform part-time or intermittent work. Information available on the internet that appears to contradict your application for benefits can result in your being denied benefits or even result in a fraud charge being leveled against you. This could be information about your professional or personal accomplishments, a home-based business, or even volunteer activities, which may be no longer current or may not accurately reflect your level of functioning since your injury. Those pictures of you on vacation in Jamaica doing the limbo might be entertaining but they could also put you at great risk if you are indicating a disability. These types of stories appear regularly in the news media. Furthermore, and even more importantly, recent court decisions around the nation and even in New York have ruled that plaintiffs may have to permit defendants access to their social networking sites and even their hard drives for analysis.

Therefore it is imperative that if you are applying for benefits based upon a disability be it workers’ compensation, social security disability or even for negligence to be cautious when posting anything about yourself on the internet.  This includes photographs, statements, travel plans, and commentary about your own social activities.  Furthermore, we cannot stress enough to take care when accepting new persons into your internet social networks.  Make sure you actually know who you are opening up yourself to, for they may not be the person you think they are, and could be in the employ of an insurance carrier.

Finally, it is extremely important that all persons using social networking websites such as Facebook and MySpace make sure that the privacy settings for their profiles are set to the maximum. On Facebook this should prevent a person’s profile from being found even if their name is searched. The bottom line is if you are disabled, you should never engage in any activity contrary to your injury as one funny moment in time on social media can impact you for your entire life. 

Prior results do not guarantee outcomes.
Attorney Advertising.

Occupational Disease: New Cancer Study and Firefighters

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

Worker’s compensation has provided benefits or coverage for occupational diseases for generations.  In Wisconsin an occupational disease is one acquired as a result of working in an industry over an extended period of time. An occupational disease cannot result from a single incident, but rather it is the result of a disease process. Wisconsin has not excluded any occupational diseases from its worker’s compensation benefit provisions. One of those disease processes is cancer. 

Studies are done regularly to determine the cause of disease as medical science advances. A recent study concludes that smoke and chemical exposure by firefighters may cause higher rates of cancer among firefighters. Firefighters, while usually healthier than the general population, have a higher incidence of cancer. A presumption of employment connected cancer exists for firefighters in Wisconsin. The statute applies to any State, County, or municipal firefighter who has worked for ten years with at least two-thirds of the working hours as a firefighter who has cancer of the skin, breast, central nervous system, or lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive symptoms. For that firefighter whose disability or death is caused by cancer, the finding is presumptive evidence that the cancer was caused by employment. Note, however, no presumption exists for firefighters who smoke cigarettes or use tobacco products for claims after January 1, 2001. Benefits for firefighters include Temporary Total Disability, Permanent Partial Disability, and if the disease (either heart or lung) precludes a return to work, duty disability payable at 75% of the firefighter’s salary, may also apply. 

As medicine and science evolve, there may be more recognized “occupational” diseases and more workers and their families compensated for harm caused by the workplace.

Prior results do not guarantee outcomes.
Attorney Advertising.

Is Worker’s Comp Profitable Because Disabled Workers Don’t Get Benefits?

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

I recently wrote an article in the national magazine for the Worker’s Injury Law Advocacy Group (WILG), the Worker’s First Watch, Fall 2013 reviewing the worker’s compensation resources research report indicating that the worker’s compensation industry is extremely profitable.  I began representing injured workers in 1976.  It seems every year since then worker’s compensation insurance carriers have complained they are not making profits and the culprit responsible is increased benefits paid to workers.  In fact, over the last 20 years the insurance industry has been profitable in 16 of 19 years and broke even in one year.  Several factors account for this profitability, including worker’s compensation insurance carriers successfully pursuing deregulation and “reform” measures to restrict eligibility. 

The net result of increasingly restrictive rules for compensability in many State worker’s compensation systems as a result of “reform” resulted in many workers with disabilities caused by work who did not receive worker’s compensation benefits.

The general trend since the early 1990s has been to restrict coverage through State statutory and administrative “reform”.  Many workers face lengthy litigation and frustration.  More restrictive regulations may preclude claims where the worker lacks “objective” medical evidence for his injury, or is unable to medically document persistent pain, or has a disease resulting from multiple causation that cannot be distinguished from workplace disease, or has job stress related disorders.  One significant problem is that many injured workers fail to file for benefits.  (For those of us in the trenches daily, these pose obstacles to compensability.)  Among the many reasons for failure to file are:

  • Ignorance of worker’s compensation and eligibility.
  • Ignorance of the work-relatedness of the condition.  (Many workers know they suffer an impairment but do not know the health condition is caused by work.)
  • Reimbursement for medical care or Short Term Disability benefits available.  (Many workers use Short Term Disability or group medical insurance rather than worker’s comp.)
  • Belief that the injury is lacking in sufficient severity.
  • Many workers fear job loss or other forms of retaliation, who do not want to report a condition as work-related.
  • Workers do not want to be perceived as complainers or careless.
  • Deciding not to file based on the negative experience of co-workers.
  • Fear of the stigma associated with being a worker’s compensation claimant.  (Much of this stems from the intense focus on fraud perpetrated by the insurance industry, resulting in increased levels of stigmatization, decreasing the likelihood injured workers will file for benefits.)
  • Pressure from co-workers on safety incentive programs.  (These programs, sometimes called “Safety Bingo” create incentives not to report.)

Those of us who have hearings daily that involve the non-reporting of an injury, or significant time delay between the occurrence of an injury and the reporting of an injury, can refer to the above list for some ammunition on the “non-filing” or “late filing” issues.

Prior results do not guarantee outcomes.
Attorney Advertising.

How Do Social Security Disability And Workers’ Compensation Benefits Work Together?

As a practitioner in the workers’ compensation field for almost 25 years, I have represented thousands of injured workers. A large percentage of those injured workers are also entitled to Social Security Disability (SSD) benefits which are benefits based upon disability and not age. My Partner, Barbara Tilker has practiced in the area of social security disability for over 35 years and she has provided me with important information regarding SSD. But what exactly are these benefits and who is entitled to them? In order to qualify you must have the requisite work credits. The number of work credits you need depends on your age. Generally speaking you need at least five years of work (20 credits). You will often hear people say you need to have worked five of the last ten years. You also must have substantial gainful employment – having minimum earnings of $1070 per month. The maximum SSD rates are based on individual income and FICA tax paid.  They are running around $2500 per person max and $4000+ if there is a dependent family

Filing for SSD can be a lengthy process. Every case is different, and some are processed faster than others. However, we’ve found that it takes the Social Security Administration (SSA) between four (4) to six (6) months to make an initial decision. If that decision is unfavorable (and about 70% of initial decisions are denials), it can take between eight (8) to twelve (12) months to have a hearing before an Administrative Law Judge (ALJ) scheduled. A year to a year-and-a-half wait is not uncommon.

Due to the lengthy process, you should file for SSD as soon as possible. You should file as soon as you know that you will be out of work for at least twelve (12) straight months OR if your condition is expected to result in death. You should talk to y our doctor to see how long he/she expects you to be unable to work. Your doctor’s support is incredibly important to your case so talk to him/her before making the decision to apply.

In order to make sure that you get the maximum amount of benefits you’re entitled to, your application must be filed within 17 full months from the time that you become disabled and unable to work. If you’ve already been out of work for a year or more, consider putting in an application right away to prevent any loss of benefits you would otherwise be entitled to. 

In New York, Social Security disability benefits are offset by workers’ compensation. There is an 80% ceiling on concurrent WC and SSD translates as follows:  A disabled individual (including dependent family benefits) cannot exceed 80% of highest gross income of the last five years worked, together with workers’ compensation benefit. This is computed on a monthly basis. If exceeded, social security is offset. Many of my clients have multiple concurrent medical issues – they may have a back injury as a result a work related accident but they may also have diabetes or a prior leg condition. Social Security takes all of these medical conditions into account to determine whether or not you are entitled to benefits. Your entitlement to SSD is based upon your overall medical condition and not just your workers’ compensation claim. While no one plans on getting injured or disabled, you should plan on knowing what you are entitled to before the unthinkable occurs.

Prior results do not guarantee outcomes.
Attorney Advertising.

Workers’ Compensation May Cover Weight Loss Treatment, Surgery

Gastric bypass is one type of weight loss surgery

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Obesity is a disease that affects Americans in many ways.

Workers’ compensation is affected by obesity as well. A work injury or disease, coupled with chronic obesity, frequently becomes much more difficult to deal with. The usual methods of treatment may not be possible for an injured worker living with chronic obesity. 

Thomas A. Robinson, a noted expert on workers’ compensation, recently posted a great discussion on obesity treatment. The well-written article discusses how various state workers’ compensation systems deal with these problems. The short answer is some states award benefits for treating obesity as part of the work injury, and some don’t. Nebraska and Iowa have cases denying gastric bypass surgery based on factual findings that it was not necessary to treat the work injury, but leaving to door open with more proof of medical necessity. 

Our firm has had at least one case where gastric bypass surgery was paid voluntarily when it was apparent the surgery was necessary to enable proper treatment of a serious work injury. A workers’ compensation trial award was entered in early January awarding gastric bypass surgery as necessary to reduce weight so a back surgery could be performed safely. This award reinforces that with proof of medical necessity to treat a work injury, weight loss treatment and surgery may be covered by workers’ compensation in Nebraska.

Prior results do not guarantee outcomes.
Attorney Advertising.

Six Tips for Safe and Fair Holiday Employment

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

This time of year, many people get holiday jobs to earn extra money. That means some people will get injured at work and run into other difficulties working holiday jobs. Here are six tips on how to deal with the workplace challenges arising from holiday jobs. These tips for safe and fair employment apply just as well to any second job, not just a holiday job. 

  1. Just because you have a “holiday job” doesn’t necessarily make you a seasonal employee: In some states, including my home state of Nebraska, employees can have their benefits reduced if they are a “seasonal employee.” However, even if you have a holiday job, your job may not be seasonal. In Nebraska, “seasonal employment” is defined as a job that is dependent on weather or can only be done during certain times of the year. For example, if you hurt your back working at an electronics store at your holiday job, that employment is not seasonal because you can work at an electronics or really most any retail store at any time of the year.
  2. You can’t be paid workers’ compensation for how your holiday or second job affects your regular job: If you are off work at your regular job because of an injury at your second job or holiday job, you are only paid income-replacement benefits for the income you lost at your holiday job or second job. For example in Nebraska, if you were hurt at your holiday/second job that pays $120 per week and you are unable to do your regular job that pays $600 per week, your only income benefit would be two-thirds of your second/holiday job, which would be $80. Employees should be extra cautious in second jobs or holiday jobs for just that reason. Employees should also consider applying for private disability plans if they plan on having a second job in order to account for the possibility of losing income due to an injury at their second job. In short, employees should do a thorough cost-benefit analysis before taking a holiday job or second job.
  3. Your permanent disability benefits could be better than your temporary benefits: In full-time employment, permanent and temporary disability benefits are generally fairly close. But with part-time employment, permanent disability benefits may be much higher than temporary benefits. In my state of Nebraska, temporary benefits are paid based on a typical work week. For example, if you are a part-timer working 12 hours a week at $10 per hour, your temporary disability pay would be $80 a week. However, in Nebraska and some other states, permanent disability is based on no less than a 40-hour week. So if you are a part-timer getting paid $10 per hour, your permanent disability rate would be $266.67 per month. This is good for employees, because serious injuries will usually have permanent effects that can permanently affect an employee’s ability to earn a living.

    If you are an injured part-time worker and your insurance company is trying to force you to take a settlement based on your part-time wage rate, you should consult with an attorney in your state.

  4. Your employer/insurer may be low-balling your wage rate: Say you get paid $8 an hour as a barista but you have an agreement to share tips, or you work in retail but you get store credit, or you teach exercise classes at a health club but you have an agreement that you get a free membership. In any of those scenarios, you could possibly use those benefits to increase your loss-of-income benefits. 
  5. You are still protected by most fair-employment laws: Part-timers are still covered by most fair-employment laws. The most glaring exception is likely the Family and Medical Leave Act (FMLA), which provides 12 weeks of unpaid leave and job protection for employees with a serious health condition, to care for a close family member with a serious health condition, or take care of a close family member who is affected by a military deployment. FMLA requires 1,250 hours worked in the last calendar year and 1 year of employment. That 1,250 hours a year translates to roughly 24 hours a week. Many people working second jobs don’t meet the eligibility standards for FMLA. 
  6. Independent contractor, independent conschmacktor: Many holiday employees do fairly low-wage work that doesn’t require any specialized training or education. If this describes your holiday job or second job, then you are an employee, despite the fact that your company may have classified you as an independent contractor. Since you are an employee, you should be covered by workers’ compensation law. If you are misclassified as an independent contractor, you should look for other employment and consider reporting your unscrupulous employer to the United States Department of Labor or to your state’s department of labor.

Prior results do not guarantee outcomes.
Attorney Advertising.

Disability, USA? A Different Point of View About Social Security Disability Benefits

imageYou may have seen a recent report on 60 Minutes regarding the Social Security Administration’s disability program.  If, after watching that report, you became concerned that either a) Social Security would soon run out of money, or b) Social Security was paying disability benefits to either outright frauds or those who just aren’t disabled, I wouldn’t blame you.  That’s not because those things are true, but because this “report” was extremely biased and inaccurate.  The truth is that Social Security is well-funded and will be able to pay benefits well into the future, if not indefinitely.

It’s true that applications for Social Security disability benefits increase when the unemployment rate goes up.  What’s not true, however, is that otherwise healthy people are drawing a disability check during bad economic times.  The Center for Retirement Research at Boston College recently published a report that concluded that applications for benefits did rise when the unemployment rate went up, but that most of these “extra” claims were denied.  Those who were approved tended to be older individuals working physically demanding jobs whose bodies were just worn out after years of hard labor.

Applications for disability benefits have increased recently, and a large part of that increase can be attributed to the fact that Americans are simply getting older.  One of the consequences of getting older is that your body doesn’t work as well as it used to, and you become much more likely to get a chronic disease such as diabetes.  It’s no surprise that disability applications will increase as more and more Americans enter the most disability-prone category of their lives.

People might worry that this increase in applications means that Social Security will soon run out of money to pay benefits.  60 Minutes didn’t do anything to allay those fears, stating several times that the trust fund is going broke in the next few years.  The disability trust fund currently only receives a fraction of the amount collected in payroll taxes, with the vast majority going to the retirement trust fund.  There is a simple fix for this problem – the government can either give more of each dollar to the disability fund, or transfer some money from the retirement fund to the disability fund.  In fact, this has been done several times, but with the money going from the disability fund to the retirement fund.  Social Security is well-funded and in no danger of going broke – don’t let anyone tell you otherwise.

60 Minutes also made it appear that disability benefits are there for anyone who applies, with no need to present any medical documentation to back up their claims.  Those who have been through the process know that this is just false.  The standard of disability for Social Security’s program is extremely high.  Only those who are truly disabled – and who have the documentation to back it up – are awarded benefits.

There are some people who try to game the system and get benefits that they are not eligible for.  Due to Social Security’s strict standards, most of these people are denied benefits in the first place.  For those that do resort to fraud, Social Security has an investigative unit dedicated to finding these individuals.  Once caught, they face stiff penalties, including restitution and jail time.

Despite what 60 Minutes would have you believe, Social Security’s disability program is well-funded, and only pays benefits to those who can prove they deserve them.  Don’t be fooled by sensationalistic programs designed to mislead rather than inform.

Prior results do not guarantee outcomes.
Attorney Advertising.

Your Social Security Benefits After The Defense Of Marriage Act (DOMA) Decision

Nearly two months after the Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA), the Social Security Administration has announced that it will start to pay benefits to some individuals in same-sex marriages. In order to be eligible for benefits, these individuals must meet the same criteria as individuals in opposite-sex marriages, in addition to several other requirements.

Only applications for spousal benefits are being approved right now. Spousal benefits are payable to a spouse who either 1) did not work enough to be entitled to Social Security benefits or 2) worked enough to be entitled to Social Security benefits but would be entitled to a larger benefit on their spouse’s earnings record.  This is generally the case when one spouse earned significantly more than the other spouse over the course of their working lives. The individual on whose earnings record the claim is made (the number holder, in SSA’s terms) must also be entitled to old-age or disability benefits from Social Security. In order to receive spousal benefits, you must be at least age 62 and have been married to the number holder for at least one year.

The individual applying for benefits (the claimant, in SSA’s terms) must show that he or she was married to the number holder in a state that permits same-sex marriage and that the number holder is living in a state that recognizes same-sex marriage either 1) when the application for benefits is filed or 2) while the application is pending a final determination. It does not matter what state the claimant lives in. What matters for SSA’s purposes is the state the number holder lives in. This only matters when spouses live in different states.

Below is a chart from SSA that shows which states recognize same-sex marriages performed in other states, and when those states permitted same-sex marriages.  If a state is not listed, it does not recognize same-sex marriages performed in other states or permit same-sex marriages to be performed.

Before filing a claim for benefits or moving to a different state, you should consult with an experienced attorney or with the Social Security Administration to determine your eligibility for benefits.  As SSA continues to pay benefits to more individuals in connection with the Supreme Court’s decision, we will provide updated information regarding who may be eligible for these benefits.

State

Date Same-Sex Marriages from Any Other State Was Recognized

Date Same-Sex Marriages Were Permitted in the State

California

June 17, 2008 – November 4, 2008

June 26, 2013 – present

June 17, 2008 – November 4, 2008

June 26, 2013 – present

Connecticut

November 12, 2008

November 12, 2008

Delaware

July 1, 2013

July 1, 2013

Iowa

April 30, 2009

April 20, 2009

Maine

December 29, 2012

December 29, 2012

Maryland

February 23, 2010

January 1, 2013

Massachusetts

May 17, 2004

May 17, 2004

Minnesota

August 1, 2013

August 1, 2013

New Hampshire

January 1, 2010

January 1, 2010

New York

February 1, 2008

July 24, 2011

Rhode Island

May 14, 2012

August 1, 2013

Vermont

September 1, 2009

September 1, 2009

Washington

December 6, 2012

December 6, 2012

Washington, DC

July 7, 2009

March 9, 2010

 

Prior results do not guarantee outcomes.
Attorney Advertising.