I have been on Workers Comp for two years. The attorney I have has not been helpful at all and I'm tired of jumping through hoops for the adjuster/insurance company and not getting any better. I was approved for social security disability, but declined it because I was told I would get more money if I stayed on WC. Am I able to stop my workers comp case and reapply for SSD?
I like Mikel's Answer, and would add an important caveat that should you decided to move forward with settlement of your workers compensation case, make sure that your lawyer knows your exact social security status, and that he PRORATES your lump sum settlement of the workers compensation claim over your life expectancy, deducting attorney's fees, future medical needs, perhaps permanent disability for the extent of permanent impairment you may have sustained, etc...in order to reduce the offset exposure that Mikel describes. Properly done, you can have a good result, JUST MAKE SURE YOUR COMPENSATION LAWYER KNOWS THAT YOU HAVE ALREADY QUALIFIED FOR SSDIB--- further, you may have to create a medicare set aside account to protect medicare's future interest in your workers compensation settlement. Your lawyer can explain this....dont try to settle this file on your own. Go have a sit down with your attorney if you feel he has not been helpful...not on the phone, face to face. Get on the same page about the case right now. If your not satisfied after a decedent face to face meeting where you both listen and talk, really communicate with your lawyer, then, if still unhappy, I am sure one of my brethren here on AVVO that is licensed in your state could help you.
" the attorney I have has not been helpful at all." I hear this on a very regular basis. Approximately 30% of my clients hire me after firing their prior attorney. The issue is almost always lack of communication. Workers Comp is not rocket science. It requires that your attorney be patient and explain, in terms satisfactory to you, how your case fits in to the matrix of the comp and social security systems.
With that said, what hoops are you jumping through? Are you currently receiving comp benefits and, if so, how much and how often ? What are your underlying social security figures? Please let me know if you would like to discuss. Thanks.
If you were recently approved medically for SSDIB, then you do not have to reapply.
In SSA, there is a rule that is referred to as the 80% rule.
If a person is receiving weekly WC, you take that number, multiply it by 52 weeks and divide it by 12 months. That is your average monthly WC rate.
Then, (A) you look at the 5 years prior to your date of disability and take the highest year.
OR, (B) if you have 5 years in a row at some other point in your working career that average (the 5 years in a row added together and divided by 5) out to be higher than your highest year from (A), then you can use the highest average year.
Take the yearly income from either (A) or (B) and multiply by .80 (eighty percent). Then divide that number by 12 months. The number you come up with is the most you are allowed to earn per month between both WC and SSDIB.
If your average monthly WC amount is above the 80% amount, which it obviously is, then you receive nothing from SSDIB even though they approved you medically.
HOWEVER, if your weekly WC checks are stopped OR if you settle your WC case by taking a redemption, then SSA will begin your SSDIB payments after your weekly WC checks stop.
You would take your WC cessation letter, Notice of Dispute or Redemption Order to the local field office, and they should automatically start your SSDIB payments.
You do not need to reapply because you were already found disabled.
Talk to your WC attorney about settling your WC case. They can draft the Redemption Order appropriately so that it should not affect your SSDIB amount.
I would not advise just having your weekly WC checks ceased until a settlement is reached.
Sorry for the long response in the form of a math lesson, but I hope this helps you to better understand why you are not receiving monthly SSDIB.
Contact your WC attorney to discuss this further.
You should consult with and retain an attorney you feel comfortable with.
Be careful about what you say about your prior attorney without specifics. For example:
1) Calling your attorney's office and not getting a return call (unless of course you call them excessively) is unacceptable and everyone will understand.
2) Unreasonable delay filing documents on your behalf by your attorney's office is also unacceptable.
3) An attorney's office that might inflame other parties (doctors, claims offices, etc...) is also unacceptable except in those rare instances where it's justified. It happens.
Remember that an attorney's office can not predict how your treatment will go. If you reach a point where you don't want to do what the insurance carrier wants you to do you (the attorney can not protect you from what the statute/law permits the insurance company to do - and it's usually a lot more than most clients think it is). If you switch attorneys you might find yourself back at square one with the same issues you are now having. Good luck.
Most attorneys don't bash other attorneys unless they don't care whether they will be bashed. Professionalism applies to you just as it does to your attorney. Good luck.
I would certainly agree that "lack of communication" from your attorney would be unacceptable (in my State it is the number one complaint to the Bar about attorneys).
However I am more doubtful about the "not been helpful at all" especially given this is a workers comp case.
In my State (Tennessee) we have to go through the Department of Labor and "exhaust the benefit review process" BEFORE we can go to court and when the newly passed "Workers Compensation Overhaul" takes effect we will have to go through the newly created Department of Workers Compensation and not be able to go to court at all. To say the Department of Labor moves slowly is the understatement of the year. For example I had an open and shut penalty case that I argued over 1 year ago and still have not received a decision even though a ten minute perusal of the Order which made the insurer pay for medical benefits would resolve the issue in my favor.
Secondly most clients do NOT understand that a workers' comp settlement amount is almost ALL MATH. Comp rate X impairment rating X a number of weeks depending on the body part injured X a multiplier. Clients do NOT recover for "pain and suffering". Theoretically pain and suffering may affect the impairment rating but typically a client is not going to get $100,000 on the basis of a slightly changed impairment rating.
At the end of the day you plug in the numbers, do the math, and that is the MOST your client is going to get. and so the client with a low comp rate and back injury does not understand WHY the lawyer is telling him that he can only recover X amount especially when he hurts a lot and, as is almost always the case, has a cousin or friend who got more money for minor injuries in a car wreck case.
The client knows it took forever, the adjustor was a jerk, and, in the end the client didn't get nearly as much as did Cousin Vinny for his bruised forearm in a car wreck case.
And yet the reality could be that the lawyer did the best job possible given the current state of the law.
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