New York Worker's Compensation - Help For Injured New York Workers

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  1. #1
    Join Date
    Jun 2010
    Location
    Florida
    Posts
    46

    Thumbs down Sec 32 When Collecting both Comp and SSDI

    Is it true if a person is collecting both WC and SSDI and they take the IC SEC 32 offer that the SSDI monthly payments STOP until the SSA works out that all the money in the SEC 32 offer is used up? Also is it true that since the SSDI payments stop (if they do) that in order to keep your PART A & B medical insurance as well as your PART D coverage the IW has to pay the SSA for that coverage?
    So another words the only people that make out better is the IC and SSA if a SEC 32 offer is agreed upon not the IW?
    Thanks for any answers
    Tony
    I am here to support my Wife who was injuried on the job in 2004 and fighting the system.

  2. #2
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,930

    Default Re: Sec 32

    Quote Quoting Wifes Support View Post
    Is it true if a person is collecting both WC and SSDI and they take the IC SEC 32 offer that the SSDI monthly payments STOP until the SSA works out that all the money in the SEC 32 offer is used up? Also is it true that since the SSDI payments stop (if they do) that in order to keep your PART A & B medical insurance as well as your PART D coverage the IW has to pay the SSA for that coverage?
    So another words the only people that make out better is the IC and SSA if a SEC 32 offer is agreed upon not the IW?
    Thanks for any answers
    Tony
    The only question I can answer with absolute certainty is YES the IC will be the only entity to make out better. As for SSDI benefits there is many, MANY, posts in this forum that explains how to avoid or at least minimize the offset for the SSDI when accepting a WC settlement. Here are a few links to help you out;

    This is from a Tennessee law firm however, it is applicable for most all other states as well as The SSA is a federal program and the rules are seldom IF ever any different from one state to another where WC causes an offset to SSDI. There are a handful of states that the WC IC takes the offset but, that has NO bearing on your issues with a settlement.

    http://www.buchanandisability.com/do...9;s%20Comp.pdf

    "Attorneys who handle workers’ compensation cases already know that the Social
    Security Administration (“SSA”) will reduce the benefits paid for injured workers who
    also receive worker’s comp benefits. Most attorneys also know that their client’s Social
    Security benefits can be protected by ensuring that language is put in the worker’s
    compensation settlement order that pro-rates the worker’s comp settlement over the
    lifetime of the injured worker."

    This one is from a Georgia law firm.


    http://www.avvo.com/legal-guides/ugc...pensation-case

    Ensure that Your Settlement Agreement Includes Social Security Offset Language

    "Your settlement agreement should include language which states that it is the intent of the parties to treat any settlement proceeds payable to you as if they are to be spread out over the course of your remaining life expectancy, even if you in fact receive your settlement as a present-value lump sum amount. In Georgia, this language is referred to as "Hartmann language" (named after the lawyer who initially drafted this language for use by the Board), and this language protects your current or future SSDI benefits against being otherwise reduced or eliminated.
    3
    Ensure that Your Settlement Agreement Considers Medicare's Interests if Necessary

    In some cases, your workers' compensation settlement must also include language that protects Medicare's interests in addition to language that deals with Social Security offsets. Medicare is government health insurance linked to SSDI and specific language should be included in your settlement documents to ensure that your interests, as well as those of Medicare, are protected. The issues involved with protecting Medicare's interests in workers' compensation settlements are complex (and change too frequently to adequately address here) and should therefore be discussed with an experienced workers' compensation attorney."


    And last but certainly NOT least directly from a NY state linked web site.

    https://secure.ssa.gov/poms.nsf/lnx/0452150065#a

    "A. Life expectancy (LE) awards

    A lump sum award may specify a payment amount based on the number holder’s (NH) life expectancy determined by insurance life expectancy tables. The life expectancy of the NH is often given in weeks, months, or years. These awards usually specify a life expectancy (LE) rate.
    If the award does not stipulate a specific length of time for the life expectancy, develop for clarification, as necessary. List all life expectancy lump sum proration cases under listing code 557.
    NOTE: The mention of a monthly LE rate in a LS award does not bind SSA to allocate expenses in a specific manner.
    1. Determining the LE rate

    If the LS award specifies a rate based on LE, determine whether excludable expenses were deducted in deriving the LE rate specified in the award:
    NOTE: The requirement to consider all three proration methods in a LE case represents a change of position (COP). Implementation of the change is effective 06/29/2006. Do not reopen determinations processed before that date.
    EXAMPLE 1:

    A LS award of $100,000 is approved with a valid excludable attorney fee of $20,000 and a valid excludable medical expense of $10,000.00. The LS settlement states the NH’s LE is 2,000 weeks and a life expectancy rate of $40 per week.
    • The $20,000 attorney fee was taken into consideration to compute the life expectancy rate ($100,000 - $20,000 = $80,000 divided by 2,000 weeks = $40.00 week.)
    • The correct LE rate for proration purposes is determined by dividing the gross LS by the NH’s life expectancy: $100,000 divided by 2,000 weeks = $50.
    • To prorate the LS, the correct weekly WC rate to use is $50 (i.e., the amount to enter in the Modernized Claims System (MCS) or the Interactive Computation Facility (ICF).
    • Medical expenses of $10,000 and attorney expenses of $20,000 are then deducted from the gross LS (i.e., enter expenses in the appropriate data fields in MCS or ICF). MCS and ICF use all three proration methods to determine the method most advantageous.
    EXAMPLE 2:

    A NH receives a LS award of $45,000 with valid attorney expenses of $11,250 and valid medical expenses of $1,730.77. The award contains language indicating the settlement represents $57.63 per month for 46.3 years. To determine whether excludable expenses were deducted in deriving the $57.63 LE rate in the LS award:
    • Multiply $57.63 x 12 (months) x 46.3 (years) = $32,019.23.
    • $32,019.23 + $11,250.00 + $1,730.77 = $45,000.00 (total award amount)
    This example illustrates that all attorney and medical expenses were deducted. Therefore, we must determine the correct LE rate for proration purposes.
    • Consider all three proration methods and determine which is most advantageous. Compute the monthly rate before deduction of the expenses.
    • Multiply 46.3 x 12 = 555.6 (total months represented in award)
    • Divide $45,000 by 555.6 = $80.99 (rounded to the next lower dime) = $80.90 (LE monthly rate before expenses).
    To input into the MCS and ICF programs, enter the gross LS amount of $45000, the LE monthly proration rate of $80.90, excludable attorney expenses of $11,250.00, and excludable medical expenses of $1,730.77. MCS and ICF use all three proration methods to determine the most advantageous method.
    2. LS award language


    If the wording in an LS award appears to be unreasonable and existing Regional Office of the General Counsel (OGC) precedents, fail to provide guidance:
    • Prepare the case for policy submittal per DI 52140.015.
    • Continue to offset at the previous weekly rate to prevent overpayment but do not make any determination on the lump sum until receiving a submittal response.
    Examples of unreasonable language in a LS award include:
    • A proration period that greatly exceeds life expectancy


    • EXAMPLE: The LE period ends when the worker attains age 200.
    • Stipulation of a proration start date that precludes offset
      EXAMPLE: The terms of the settlement specify that the lump sum settlement is “for WC benefits payable beginning at age 65. (See PR 02505.046 South Dakota)
    • Settlement language cites a small monthly rate up to age 65 with a significantly larger rate beginning at age 65 and continuing
      EXAMPLE: The plaintiff’s average weekly wage is determined to be $350.00. Based on this, the rate for temporary total WC payments is determined to be $250.00 weekly and permanent total payments to be $175.00.
      The NH is found permanently and totally disabled as a result of an injury occurring on 05/08/2001 and is awarded benefits from the date of maximum medical improvement, 07/12/2001 and continuing.
      The award states the settlement represents weekly WC payments of $100 beginning the date of maximum medical improvement (07/12/2001) up to age 65 (09/02/2012) and weekly payments of $250.00 effective age 65.
    NOTE: Contradictory language in a lump sum settlement requires further development for clarification."

    I hope you find this information helpful in your decision making process to do a section 32 or not. As you can see using SS language IS the trigger that needs pulled so that your SSDI is NOT effected or is minimally effected. IF you have an attorney that is NOT familiar with "The Social Security Language" that pro-rates a lump sum WC settlement over the IW's life expectancy then I suggest you enlighten him/her or find one that does know how to properly word your settlement documents.

    Good luck to you.
    Last edited by SteelMagnolia; 06-15-2011 at 04:16 PM.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  3. #3
    Join Date
    Feb 2007
    Location
    Western New York State
    Posts
    1,341

    Default Re: Sec 32

    Quote Quoting Wifes Support View Post
    Is it true if a person is collecting both WC and SSDI and they take the IC SEC 32 offer that the SSDI monthly payments STOP until the SSA works out that all the money in the SEC 32 offer is used up? Also is it true that since the SSDI payments stop (if they do) that in order to keep your PART A & B medical insurance as well as your PART D coverage the IW has to pay the SSA for that coverage?
    So another words the only people that make out better is the IC and SSA if a SEC 32 offer is agreed upon not the IW?
    Thanks for any answers
    Tony
    I noticed that your location is Florida, is this question about Florida or NYS WC and SSDI?
    Knowledge is a beneficial tool for the injured worker!

  4. #4
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,930

    Default Re: Sec 32

    Quote Quoting Q-man View Post
    I noticed that your location is Florida, is this question about Florida or NYS WC and SSDI?
    Qman it is a NY state WC claim and they relocated to Florida after the injury/claim. The SSDI rules are basically universal as you know it is Federal. Basically the only difference at the state level is a handful of states where the WC takes the offset and full SSDI benefits are paid. Most states do it the exact opposite in that SSDI takes the offset and WC pays the full benefit amount.

    When it comes to the settlement SSDI can and SHOULD be minimized or totally eliminated. However, IF the settlement documents do NOT contain a very specific SS language then the IW is screwed out of potentially thousands if not ten's of thousands of $'s in unpaid SSDI benefits. IF the paper work is NOT worded correctly SSDI will do the calculations as if the weekly TTD/TPD were to remain at the same level as pre-settlement. This can cost the IW a total offset for up to the entire amount of settlement for wage replacement. That works the same regardless of what state the WC claim originates in. That is why I posted the different links for different states to show the example of how each state basically does the same function concerning SS language in a WC settlement. The last link is from The SSA web site.

    Have a great day Qman.
    Last edited by SteelMagnolia; 06-16-2011 at 06:13 AM.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

  5. #5
    Join Date
    Jun 2010
    Location
    Florida
    Posts
    46

    Default Re: Sec 32

    Sorry for not getting back sooner but YES this is a NYS Workers Comp Claim, my wife talked to her lawyer and he said it is all worded so she will not loose her SSDI PAYMENTS. We made it VERY CLEAR that if he screwed up and this doesnt happen then our next goal is to go after him and he knows we will do this. We did see how the wording was done and it looks like he did it right but one cant tell until the SSA gets there hands on it. Otherwise we will be moving in with him for the next 7.5 years for free and I am sure he doesnt want that, so we are hoping it goes off without a hitch as Tuesday is the end of the 10 day grace period.
    Thanks again for the info
    Tony
    I am here to support my Wife who was injuried on the job in 2004 and fighting the system.

  6. #6
    Join Date
    Feb 2007
    Location
    Western New York State
    Posts
    1,341

    Default Re: Sec 32

    Wow, wonderful information from Steel !!!!
    This is why the board is here helping each other without squabbling, a know it all attitude!

    Great work and good luck WS!
    Q
    Knowledge is a beneficial tool for the injured worker!

  7. #7
    Join Date
    Jun 2010
    Location
    Florida
    Posts
    46

    Default Re: Sec 32

    Steel did a wonderful job posting all those link and explaining it so the normal person can understand it, Thanks Steel that was a GREAT POST and I am sure others will be asking the same question and now know what there Lawyer needs to add to the settlement wording.
    Tony
    I am here to support my Wife who was injuried on the job in 2004 and fighting the system.

  8. #8
    Join Date
    Mar 2007
    Location
    Georgia
    Posts
    1,930

    Default Re: Sec 32

    Quote Quoting Q-man View Post
    Wow, wonderful information from Steel !!!!
    This is why the board is here helping each other without squabbling, a know it all attitude!

    Great work and good luck WS!
    Q
    Thanks Qman

    Quote Quoting Wifes Support View Post
    Steel did a wonderful job posting all those link and explaining it so the normal person can understand it, Thanks Steel that was a GREAT POST and I am sure others will be asking the same question and now know what there Lawyer needs to add to the settlement wording.
    Tony
    And thank you as well Tony. This is exactly, IMO, what this board is for. Opinions and helping others both with understanding the WC laws/rules, SSDI laws/rules, and moral support for others. Makes it all worth while, again IMO.

    Y'all have a great weekend or what is left of it anyway
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln


    Take Care and Be Well.

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