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Disability Under Social Security - FAQ

What are the differences between Social Security Disability Insurance Benefits (SSD or DIB) and Supplemental Security Income (SSI)?
  • While benefits may be payable under either or both SSD and SSI, the standard for disability is the same and eligibility for either or both programs is determined by the same process. In addition to proving disability, a claimant for Social Security Disability must show that he or she had worked long enough to be “insured”. An SSI claimant must have limited assets and income. There are other differences in the eligibility rules for the two programs. 
  • There are three categories under which a person can qualify for disability payment: disabled workers under 65 who have paid enough into the Social Security system; persons disabled continuously since age 22 if one of their parents is deceased, disabled or retired; and a disabled widow or widower between the ages of 50 & 60 whose spouse was covered by Social Security at the time of death.
What is the definition of disability?
  • In general, the law defines disability as the inability to do any substantial gainful activity due to a medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for at least 12 months. The impairment or impairments that form the basis for your claim must be “severe” as defined in the law and they must prevent you from doing not only any work that you have done in the 15 years prior to becoming disabled but also prevent you from performing any gainful work which exists in the national economy. Your age, education, training and past work experience are all factors that the Social Security Administration may consider in determining whether you are disabled.
How do I apply for benefits?
  • You can call Erwin McCane & Daly at 888-EMD-LAW8 or 518-380-6310 before you even apply and we will provide a free consultation. We can help with the application process or you can call the Social Security Administration directly at 800-832-3471 or you can visit your local Social Security office.
What kind of evidence do I need to supply to Social Security?
  • You will need to provide your birth certificate and military record, if any. 
  • Your medical records will be needed in order for the Social Security Administration to make a decision about your claim. If you can, bring copies of your records with you when you file your application. 
  • The Social Security Administration will attempt to obtain medical records directly from your doctors, and other treating sources. The Social Security Administration may send you to be examined by one or more of their physicians, or a psychologist, if appropriate. 
  • You will be asked to answer questions about your education and work history for the last 15 years, including the duties and responsibilities you had on your jobs. You may also have to fill out additional forms concerning your daily activities, pain level, etc. 
  • In connection with an SSI claim, the Social Security Administration will need information concerning your income and things you own, as well as your living arrangements.
Why should I consider hiring an Attorney?
  • It is certainly possible for you to file a claim on your own and represent yourself before the Social Security Administration as there is no requirement that you have an attorney. However, an attorney who knows the ins and outs of Social Security disability rules and regulations can provide you valuable assistance in proving your case for benefits. At Erwin, McCane & Daly, we stand ready to help you at every stage of the process from prior to your application to appealing an adverse decision to the U.S. District Court, should that prove necessary. We can help by contacting your treating doctors to obtain appropriate medical records and assist you in completing all necessary forms.
What does it cost to hire an Attorney?
  • Representation is almost always on a contingency basis meaning that before a lawyer can charge a fee, a contingency must be satisfied. In a Social Security case, a lawyer is not entitled to collect a fee unless his client is awarded benefits. Fees are regulated by Social Security and prior approval is required before an attorney can collect a fee. Generally, Social Security will approve a fee of 25% of past due benefits capped at certain amount.
What should I do if my claim for benefits is denied?
  • If you initial claim is denied in whole or in part, in the New York area, the next step is to request a hearing before an Administrative Law Judge who works for the Social Security Administration. The request for hearing must be filed with 60 days from the time you receive the decision and failure to file on time can result in you waiving some of your rights. The list of claimant's waiting for a hearing is long. While you can wait until your claim is denied before seeking legal representation, it does not cost you any more in legal fees to hire a lawyer at the beginning of the process. If the lawyer succeeds in obtaining benefits for you without the need for a hearing, your attorney fee will actually be less.
How much money do I stand to receive if my claim is successful?
  • Whether you have been found eligible for SSI or SSD, you will receive a monthly cash benefit. The amount of benefits payable under SSD depends on the amount of money you have paid into the system by posting earnings. Additional amount are payable if you have minor children. A cost of living adjustment is calculated and added each December. SSI benefits are paid up to a certain maximum amount and in New York, are supplemented by the state.
Will I receive help with my medical bills?
  • Medicare will pay medical bills if you are found eligible for Social Security Disability Insurance Benefits but only after you have received 24 months worth of benefits. If you qualify for SSI, you should also qualify for Medicare.

Workers' Compensation - FAQ

At the Compensation Board, it seems like every one is speaking a foreign language. What do they mean by “prima facie medical”, “ANCR” and “ODNCR”?
  • One of the primary requirements for establishing a compensation claim is a statement from a doctor giving a history of an accident occurring on the job and offering the opinion that the accident caused a disability or a need for treatment. This statement causally relating disability to something that happened at work is a prima facie medical report. 
  • ANCR stands for “accident, notice, and causal relationship” and is short hand used by the judge to indicate that a worker sustained an accident on the job, gave proper notice to his employer of the accident, and there is medical evidence showing that the accident caused a disability and/or the need for treatment. Usually ANCR is stated in connection with a particular part of the body or for a particular medical condition. 
  • ODNCR stands for “occupational disease, notice, and causal relationship” and is essentially the same as ANCR but is used when the disability is related to an occupational disease instead of an accidental injury.
How is my average weekly wage determined?
  • Average weekly wage (AWW) is generally determined by looking back over the year prior to the date you became injured. The law provides a number of formulas to be used under particular circumstances. If you have not worked for the employer for at least one year at the time of your injury, the law specifies that the payroll of a similar worker should be used to determine average weekly wage. 
  • Your average weekly wage may be increased if you were working two or more jobs at the time that you were injured. Before the wages from another job can be added to your AWW, it must be shown that the second employment is one that would be covered by New York Workers’ Compensation Law. It is important for you to tell your lawyer about any other jobs you had at the time that you got hurt on the job. 
  • Your average weekly wage can be increased if you were under the age of 25 when you got hurt and you are found to have a permanent disability. The increase is supposed to reflect that amount that you would earn in your chosen field at the age of 25.
What determines the amount of money that I receive each week in compensation benefits?
  • The amount you receive in compensation benefits is limited to 2/3 of your average weekly wage up to the maximum amount set by law. This amount is payable if you are totally disabled from any and all work. If you are capable of performing some type of work, even if it is not the type of work that you were doing when you became injured, you will be considered partially disabled and will be entitled to an amount less than 2/3 of your average weekly wage. 
  • If you are not working, the amount you receive depends on the degree of disability as estimated by medical doctors or chiropractors. Degree of disability is a major area of dispute in compensation cases as insurance company doctors tend to minimize the degree of disability. Often, medical testimony will be taken by deposition to allow the Workers’ Compensation Law Judge to resolve the issue of degree of disability. 
  • If your return to work at a lesser paying job because your on-the-job injury prevents you from returning to your regular job, the amount that you receive is determined by comparing the amount that you earned before you got injured to the amount you earn after your return to work. In such a situation, you are entitled to receive 2/3 of the loss of earnings.
When should I start looking for work?
  • You should start looking for work as soon as your doctor finds you to be capable of performing full duty or light duty work even if your employer cannot provide a job. If you are partially disabled and you do not look for work, the insurance company may seek to cut off your benefits arguing that by not looking for work, you have voluntarily removed yourself from the labor market and are thus not entitled to benefits.
How often should I go to see my doctor?
  • You should see your doctor at least every 45 days, preferably once a month. However, if you are not under active treatment, your doctor may not want to see you that often. If you do not go to see your doctor regularly, benefits may be stopped for lack of medical evidence of disability. 
  • If a formal finding has been made by the Workers’ Compensation Board that you disability is permanent (if you are “classified” in compensation terms), you do not have to see your doctor on a regular basis in order to prove ongoing disability.
How long do payments continue?
  • If your injury is one for which the law provides a scheduled loss of use, payments generally end when you receive the scheduled payments. The schedule applies to injuries to arms. legs, hands, feet, fingers, toes and hearing and vision loss. 
  • If you are classified as having a permanent partial disability, payments can continue indefinitely, for injuries before 3/13/2007, as long as you are not working, or are working but not making as much money as you did prior to your on the job injury. For injuries after 3/13/2007, the length of time you receive benefits has been capped with number of weeks of benefits determined by the degree of your permanent disability.
When can the insurance company cut my benefits?
  • If you have not been to a hearing and thus there is no direction issued by a Workers’ Compensation Law Judge to continue payments at a certain weekly rate, the carrier may cut benefits whenever its own doctor’s estimate of the degree of your disability justifies a lower rate. 
  • If a Workers’ Compensation Law Judge has directed payments to continue at a certain rate, the insurance company must file an application to reduce benefits (done on a form “RFA-2”) unless you have returned to work at wages equal to or more than your average weekly wage, or your own doctor has issued an opinion on the degree of disability which justifies a lesser rate.
Can I work and still receive workers’ compensation benefits?
  • Yes, but returning to work affects the amount that you are entitled to receive and it is important to tell your attorney that you have returned to work. In some circumstances, returning to work can result in an increase in your compensation benefits.
What are examples of claimant’s committing workers’ compensation fraud?
  • A claimant who denied an old knee injury when questioned by an Independent Medical Examiner. 
  • A claimant who denied work or work activity on an insurance company questionnaire who was later found to be helping a friend work on his house. 
  • A claimant who denied work while “helping out” a friend collect a cover charge at a bar.
What is workers’ compensation fraud?
  • Workers’ Compensation fraud is a knowing misstatement of fact for the purpose of obtaining compensation benefits. A workers’ compensation claimant who misrepresents the occurrence of a injury, or fails to report employment, work or work activity can be found to violate the workers’ compensation fraud statute. Work is not limited to employment for wages and can be interpreted to mean any activity for which a claimant could be paid.Failure to reveal prior medical treatment or injuries to the insurance company's independent medical examiner can even be found to constitute workers' compensation fraud.
What should I do to prevent a fraud charge?
  • Do not fill out questionnaires sent by the insurance company. The questionnaires can be (and often are) used as a basis of a fraud charge. There is no legal requirement that you fill out questionnaires received from the workers’ compensation insurance company. 
  • While receiving or requesting workers’ compensation benefits do not engage in any work or work activity unless you are on the payroll and report all earnings to the insurance company and your lawyer. Helping a friend will be considered work. 
  • Notify your lawyer when you start working immediately. 
  • When asked to raise your right hand at a hearing to answer questions, this is a clue that the insurance company has conducted surveillance on you and has information about work or work activity. This is the time to ask your lawyer to go outside the hearing room and tell him what you have been doing. After you testify, it may be too late. 
  • While receiving or requesting workers’ compensation benefits, claimants should be looking for employment within their restrictions.
What can happen if I am found to have committed workers’ compensation fraud?
  • The Workers’ Compensation Judge can impose a limited period of suspension or permanently disqualify the claimant from obtaining lost wage benefits on the claim. Medical benefits will not be suspended. 
  • The claimant can be arrested and charged with criminal fraud. Fines, restitution and imprisonment can be ordered.
Can I receive a settlement from the workers’ compensation insurance carrier for my injuries?
  • If your on the job accident results in a permanent injury, you may be entitled to a settlement. The amount of the settlement and the method of determining and approving the settlement depends on whether your injury is to a part of the body for which the law provides a schedule. 
  • If the injury is to your arm or leg, or hand or foot, or finger or toe, or involves loss of your vision or hearing, you may be entitled to a scheduled loss of use. The amount is determined by applying a doctor’s estimate of percentage loss of use to the appropriate schedule set by law. Generally, a determination as to percentage loss of use cannot be made until at least one year after your injury or last surgery, which ever occurs later. Even where the law provides a schedule, there are certain types of injuries which take the case out of the schedule and result in the disability being treated as one for which there is no schedule. 
  • If the injury is to any other part of the body you may apply for a full and final settlement. Such an settlement is subject to Board approval. The amount of the settlement depends directly on the amount of the compensation benefits that you receive every week.
How much can my attorney charge me and how does he get paid?
  • All attorneys fees must be approved by a Workers’ Compensation Law Judge. Although there are no rigid rules, fees fall within certain parameters. All fees are paid to an attorney out of money that would otherwise come to you. 
  • If there is a large amount of money payable to you at any one time, the typical fee that a Workers’ Compensation Law Judge would approve ranges from 10 to 20% of the amount payable to you. 
  • For attending routine hearings, fees range up to approximately one-half of what you receive in compensation benefits every week. 
  • If you are formally found to have a permanent disability and awards are to be paid at a fixed amount of money for the foreseeable future, a Workers’ Compensation Law Judge will approve a “classification” fee equal to 10 weeks of compensation which is paid out over time at a small amount per pay period.
Can my lawyer ever ask me to pay him directly for anything in connection with my compensation case?
  • Your lawyer can never ask you to pay directly to him a fee for representing you in your workers’ compensation case. He can ask you to reimburse him for costs that he has incurred in representing you in your case. Such costs include obtaining medical records from treating doctors or copies of the transcripts of testimony offered at workers’ compensation hearings.
Are there any other benefits that I may be entitled to while I am receiving workers compensation benefits?
  • Social Security Disability Insurance Benefits. These benefits may be payable if your injury has made, or can be expected to make you totally disabled for at least one year. As a general rule, if you have been totally disabled as a result of your on the job injury for 6 months, you should consult with your attorney about the advisability of applying for Social Security Disability Insurance Benefits. 
  • No-Fault Benefits. If your on the job injury involved the use or operation of a motor vehicle, you may be entitled to no-fault benefits in addition to workers’ compensation benefits. In such a situation, it is important that you promptly file a no-fault application after you injury. 
  • Disability Pensions. If you belong to a retirement plan, you may be entitled to a disability pension. 
  • Unemployment Insurance. But only if you are partially disabled and ready, willing and able to work within your restrictions. If you are eligible to collect both workers’ compensation and unemployment insurance benefits, the total amount cannot expect 100% of your unemployment average weekly wage. You must tell the unemployment insurance division that you receive workers’ compensation benefits.
Can I sue someone for my injuries sustained in an on-the-job accident?
  • The workers’ compensation law generally prevents you from filing a law suit against your employer or a fellow employee. You can, however, sue someone else if they were responsible for your injuries. 
  • Generally, if you sue someone else, your workers’ compensation insurance carrier will have a lien against any damages that you recover in the law suit.
Do I have to attend an examination with a doctor arranged by the insurance company?
  • The insurance company has the right to have you examined periodically by a doctor of its choosing at a time and a place that is convenient to you. If you fail to attend an insurance company doctor’s examination, payments may be suspended.
How do I get reimbursed for mileage to and from the doctor’s office and for out-of-pocket medical expenses?
  • You should keep records of each time that you visit a doctor or other medical practitioner (no reimbursement is payable for trips to the Workers’ Compensation Board for hearings or to a pharmacy to pick up a prescription). You should periodically submit directly to the insurance company a list showing the date of the appointment, who you went to see, and the round-trip mileage. You should also submit copies of receipts for drugs or other medical supplies that you have paid for directly. Never submit your only copy to an insurance company. Always keep a copy of anything that you submit to an insurance company for payment. The Workers’ Compensation Board does provide a form to be used for filing a request for reimbursement.(Form C-257)
Will compensation pay me anything for my pain and suffering?
  • No. The workers’ compensation law provides a limited remedy for the damages that you have suffered. Compensation is limited to payment for lost wages and medical expenses.