worker injured on duty

Many of our most seriously injured workers’ compensation clients can receive Social Security disability benefits and end up applying for it because their permanent physical restrictions from their injuries (combined with a host of other factors) are such that no reasonably stable job market exists for them. For example, imagine that you are a 55-year-old man who has worked in the construction industry for nearly 40 years. You hurt your back while working and you end up having a multi-level lumbar fusion surgery. At the end of your treatment, your surgeon places a number of permanent physical restrictions on you, including lifting no more than 25 pounds.

It won’t come as a surprise to anyone that most construction companies have little use for a worker who can’t lift more than 25 pounds. Unless you’ve acquired some special expertise that makes what you know more important than what you can do physically, there’s a good chance that your employer will not have you come back to work with those physical limitations. If the employer you were working for has no interest in accommodating your restrictions, rest assured that no other company is likely to do the same. With these facts, our law firm would certainly pursue a claim for total and permanent disability benefits under the South Carolina Workers’ Compensation Act. This is the most liberal award available under South Carolina’s workers’ compensation law, with the value of the recovery varying from case to case depending on factors such as the injured worker’s weekly compensation rate and how many weeks of temporary disability benefits have been paid before the disability case is settled.

Should I Claim SSD Benefits Before Workers’ Compensation?

In many instances, our workers’ comp clients inquire about also applying for Social Security disability benefits while they are still receiving their weekly workers’ compensation disability benefits. We usually advise our clients to hold off on applying for SSD benefits until their workers’ compensation case is settled. Why do we do that? Applying for Social Security Disability Insurance benefits can significantly hamstring any efforts to maximize someone’s settlement in a workers’ compensation case, in other words, if you receive SSDI benefits, your workers’ compensation will be reduced and vice versa. Here are some of the factors we consider in advising our clients on how to proceed with the SSD benefits application.

First, there is a deadline for applying for SSD benefits (similar to a statute of limitations for filing your workers’ compensation claim) but it is a liberal one. You must file for SSD benefits within five years of your having last held gainful employment. That’s a pretty liberal standard. Certainly, we do have some workers’ compensation cases which take more than five years to resolve but it’s pretty rare for that to happen. One of the things we docket for our workers’ compensation clients is this five-year deadline for submitting an SSD application.

It is true that you could lose some entitlement to back-owed SSD benefits as the back pay can only go back for a period of 12 months. If you’re out of work for three years between the date of your work injury and the settlement of your workers’ compensation case, you arguably are losing two-plus years of SSD benefits by waiting to apply for the benefits after your workers’ compensation case is settled. However, do understand that the actual amount of lost benefits is somewhat nominal because the SSD monthly benefit is significantly reduced by the amount of your weekly workers’ compensation benefits. Under the Social Security Administration’s guidelines, the combined amount of your workers’ compensation benefits and SSD benefits cannot exceed 80% of your average current earnings before you became disabled.

So How Would SSD Work in South Carolina?

Let’s assume that your average weekly wage at the time of your work injury was $600 (this works out to $2,600 per month). Under South Carolina law, your weekly workers’ compensation disability benefit is 2/3rds of your average weekly wage, so it would be $400 in this scenario. A $400 weekly disability benefit works out to $1,733.20 a month. 80% of $2,600 is $2,080 so your SSD monthly benefit would be limited to $346.80 a month ($2,080 minus $1,733.20). Now I know what you’re thinking. $346.80 of extra benefits each month can still be a huge help, especially when your workers’ comp benefit is likely less than what you were bringing home each month while you were working. So why hold off on applying for SSD benefits?

The primary reason is that applying for SSD benefits while your workers’ compensation case is pending limits our ability to maximize your workers’ compensation case by settling it on a clincher basis. A clincher settlement is a universal settlement which resolves ALL of your entitlement to further benefits under the Workers’ Compensation Act, including future medical care. In many instances, a primary driver of the final settlement figure in workers’ compensation cases is the projected future medical costs the injured worker is likely to incur. Typically, we have a nurse consultant or a certified life care planner give us a detailed report with these projected costs. Now one of the beauties of our workers’ compensation system is that unlike a car accident injuries claim, you do not have to give up your future medical rights related to your work injury (nor can our Workers’ Compensation Commission make a monetary award to you for future medical coverage if your case goes to a hearing).

Under Which Circumstance Should I Apply SSD?

In some cases, we strongly advise our clients that it is in their best interest to keep their future medical coverage intact. When I handle one of those cases, I often urge my clients to move forward with their SSD application early on. However, most clients prefer to have the ability to see what the workers’ compensation insurance company will offer to completely settle their case before they decide on keeping their medical coverage intact or closing it out. When you consider that South Carolina’s workers’ compensation law gives the insurance company complete control over deciding who will treat an injured worker, it makes further sense that many workers prefer to close out their medical coverage so they can take control over who they will treat with. If an injured worker has already applied for SSD benefits before their workers’ compensation case is settled, federal law dictates that the lawyer (and his client) has to take Medicare’s interests into consideration in settling the workers’ comp case. That’s a complicated process that is best suited for a separate article but in a nutshell, a portion of any workers’ compensation clincher settlement would have to be deposited into a Medicare set-aside account and there are very strict rules about how these funds can be used by the injured worker.

In some cases, all of this is moot because of the age of the injured worker. If you are 62 and ½ years old or older when your workers’ compensation case is settled, the law requires that Medicare’s interests be considered even if you have not applied for SSD benefits. Therefore, whenever we have an older worker who has suffered disabling injuries, we advise them to move forward with their SSD claim as soon as possible.

I’ve tried to simplify this issue as much as I can but as you can gather, it’s a complicated issue. This is one of many reasons why I have always said that if you have suffered a disabling work injury, it is a no brainer that you need to hire an experienced workers’ compensation law firm.

About the Author

Ken Harrell joined Joye Law Firm in 1994, and has been the managing partner since 2006. With 30 years of experience, he protects the rights of injured South Carolinians, including cases involving workers’ compensation, car accidents, and defective products. Ken also leads the firm’s referral practice, helping to ensure that our clients receive the best possible representation. He is a past president of South Carolina Injured Workers’ Advocates, and has served as the co-chairman of this organization’s legislative affairs committee for 12 years.

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