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  1. #1
    Join Date
    Nov 2011

    Default Social Security After Two Workers Comp Claims

    My workers compensation claim was made in the State of: NYS

    I have 100 percent loss of my hand (amputation) and 50 percent loss of my shoulder. I am close to closing the case, and have the option to close them separately or together. I was told closing it together would be more benefical. I have also started social security as I will never be able to work. Any advice is appreciated.

  2. #2
    Join Date
    Mar 2007

    Default Re: Two Claims

    dd2004, Welcome to the forum. I am so very sorry to learn of your losses. I have only a 28% PPD to my upper extremity/arm and it has been very life altering for me. I can NOT even begin to imagine what you are going through with the complete loss of your hand AND 50% loss of use of your shoulder as well.

    Are you starting SSDI as in already approved and receiving the monthly benefits or have you just started the application process?

    When you are drawing both SSDI and WC you can not receive more than 80% of your AWW/Average Weekly Wage at the time of your injury from WC and SSDI combined. Usually SSDI will have WC report your WC benefit amount and offset/reduce your SSDI benefit by anything over that 80% margin. Some states do it exactly the opposite and WC takes the offset and full SSDI benefits are paid. You need to find out which way NYS does the offset.

    As far as your WC settlement goes there are two main thing you want to be careful of and make absolutely certain that you agree to nothing, nor that you sign anything, until you are 100% sure these criteria are met to your full satisfaction. First off by law you MUST take Medicare's interest into account and a WCMSA/Work Comp Medicare Set Aside proposal must be done. These are funds the WC IC will be required to put up for you that will pay for any FM/Future Medical Care you may need in connection with your industrial injury.

    The MSA is in ADDITION to any other indemnity proceeds you get from your settlement. I will give you a couple of links at the bottom of this post for your review in helping you understand what a WCMSA or MSA is and how/why/when it is necessary. Also be mindful that with the MSA, Medicare only considers what they would normally pay for, so you will need additional FM $'s in addition to the required MSA for other FM out of pocket expenses such as travel expenses, co-payments, or any item or medication that Medicare does or will NOT normally cover.

    Those additional funds need to be allocated as such and kept in a separate account from the actual MSA. Prior to WC settlement the WCMSA MUST be calculated and submitted to CMS or a certified vendor for CMS for review and approval. IF it is NOT approved do NOT accept a settlement without one that is approved. Otherwise you would be best served to settle the indemnity portion of your claim and keep FM open. Preferably on a lifetime basis. I

    F you do NOT follow through on this to the letter of the law Medicare can and WILL declare your entire settlement proceeds, indemnity and all as FM money. Having the MSA is the only protection you will have especially where you are or at least have applied for SSDI and Medicare. IF a valid and accurate MSA is not done Medicare will NOT pay one cent for treatment to your industrial injury until you can prove with receipts that you have spent every penny of your entire settlement on treatment to your injured body parts, arm in your case and any prosthetics you may need.

    Also you are NOT allowed to use PHC/Private Health Care Insurance, (your own or from a spouse makes NO difference), for treatment to this industrial injury. It is considered fraud if you do and certainly NOT worth the repercussions should you be found out and prosecuted for such. The WC IC has sole liability to continue to pay for any and ALL of your FM needs to your injury from work.

    Secondly making sure the correct Social Security Language is used in your settlement documents so ALL of your SSDI payments are not offset by your current weekly WC amount until the entire WC settlement is accounted for. IF you have a large WC settlement, (and from the sounds of your injuries it certainly "should" be a substantial amount of money), this could potentially cost you 10's of thousands of dollars in unpaid SSDI benefits IF the proper "SS Language and calculations" are NOT only in your WC settlement documents but also applied according to the guidelines once The SSA gets your actual numbers reported to them.

    What the Social Security Language amounts to is, within the WC settlement documents your payments must be expressed as the total weeks they represent, per your total weeks of the remainder of your life expectancy, NOT the actual total number of weeks the settlement is for. Those numbers come from a chart your attorney should be very familiar with and have access to. What it does is stretches/pro-rates your total lump sum settlement amount over your remaining expected life span and causes your weekly WC payments to decrease considerably on paper only.

    You still get the full amount be it all at one time or into a structured settlement that pays it out over X amount of $'s per X amount of years/months. Just what ever you, your attorney, and the WC IC will agree to. Part of it will depend on your age at the time you settle with WC as to how much advantage this will be to you.

    Also it is very important that your attorney do the actual math or The SSA may not honor the language and use the full settlement amount at the current rate and withhold your SSDI benefits until the entire amount is offset. So be sure the SS Language to prorate the settlement amount is based on your remaining years of life expectancy, expressed in weeks, AND the actual dollar amount that the WC settlement would be paid for that number of weeks.

    Here is an example: Say Samantha Smith is a 47 year old female that suffers a shoulder injury that results in a 50% loss of use to her upper extremity/arm or, PPD/Permanent Partial Disability, rating, (same thing just different wordage). For the sake of this example I will use a fictitious State PPD chart. The WC IC has a chart that says the arm is worth 220 weeks so to calculate the WC settlement let's say Samantha had a TTD/Total Temporary Disability weekly WC benefit of $600/wk.

    You would take the 220 wks X .50 (50% PPD rating) = 110 weeks X $600 = $66,000 for the 50% arm PPD. OK now is where the SS language comes into play. Samantha is now 50 years old. Per the charts her life expectancy is 73.5 years old for a female. You would take 73.5 - 50 = 23.5 (years left to live) X 52 (weeks/year) = 1,222 weeks remains for Samantha's life expectancy. Then $66,000/1,222 = $54.00/week. Then $54.00 X 52 = $2,808/year / 12 (months) = $234.00/month. The $234 would be the offset for Samantha's SSDI.

    IF her full SSDI benefit entitlement plus the prorated $234/mo., does NOT exceed the 80% rule then she would have a zero $ offset. However, IF her full SSDI benefit plus the $234 exceeded the 80% rules then SSDI would offset/deduct up to the full $234/mo.

    Most all states have a pre-determined number that each body part is worth and it is expressed in weeks. Also most states have a WPI/Whole Person Impairment that is also expressed in number of weeks. I am relatively sure NYS is one of them that has both. I will check in a bit to be sure and give you a link to that at the end of this post, IF it is available to the general public such as myself.

    Have you had a PPD/Permanent Partial Disability rating done for your injuries yet? And IF so has it been contested by the IC or have they accepted it as written? I suspect you have at least had the rating to know your shoulder has a 50% PPD. My suspicion would be that you will be rated by the WPI/Whole Person Impairment as I have never heard of any state paying more than a 100% PPD for any body part.

    To split your hand and shoulder ratings would result in a 150% upper extremity/arm impairment. I do NOT see that happening as I said I have never heard of nor even read about anyone getting more than a 100% PPD rating on any one body part. That is what leaves me to believe you will be rated for WPI to get the max., allowed for your amputated hand and 50% loss of use of your shoulder.

    I'll go now and attempt to get you some more specific information as it pertains to NYS WC and your particular situation. Hopefully it will be available.

    Take care and I will be back to post any additional information I am able to find for you and links to it as well as the links for the WCMSA. Hopefully it won't take too long. If I run into very much trouble getting those links for you then it may be tomorrow before I get them posted.
    "He who is his own lawyer has a fool for a client"
    Abraham Lincoln

    Take Care and Be Well.

  3. #3
    Join Date
    Aug 2011

    Default Re: Two Claims

    dd2004 - what Steel has provided is a bit lengthy and cumbersome, BUT - please take the time to read and understand it. Not doing so will be to your peril when settling the WC claim.

  4. #4
    Join Date
    Feb 2007

    Default Re: Two Claims

    Actually... in NY State... you can petition the court to commute any remaining PPD indemnity into a cash payment, with out discount.
    Leaving the medical open.

    As to a WCMSA... that is "recommended" by CMS to protect Medicare long as the settlement documents contain language that protect DO NOT have to have a formal MSA... there is no "must" language, or "shall" in the MSPA/Medicare Secondary Payor Act.... hopefully you have an attorney fully versed in the settlement process when Medicare is at issue.

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