In California, can a person receive both Worker's Compensation benefits and Soc. Security Disability benefits at the same time?

I have an ongoing Worker's Compensation case in California in which I have been receiving WC benefits since November of 2007. This case is not yet settled. I've exhausted my CA State Disability benefits some time ago. I've been seen and treated by a Psychaiatrist and also by a Mental Health counselor since 2008. With the testing and scoring of two QME's, my disability rate is at a 93% disability. Am I eligible to receive both Worker's Compensation benefits as well as my Social Security Disability benefits before my my Worker's Compensation case is settled? In other words, if I apply for my Social Security benefits, will it effect my Worker's Compensation case in any way?

Charlottesville, VA -

Attorney Answers (4)

George Ellis Corson IV

George Ellis Corson IV

Workers' Compensation Lawyer - Orange, CA
Answered

Generally, no. SSDI will offset for your WC benefits if you receive PD advances, but you will get a supplement if the math works out. You REALLY need a good Attorney if have the slightest inclination to settle your future treatment, because that can be very sticky with Medicare.

We give free general concepts to be helpful, but you should give ALL your facts to a licensed Attorney in your... more
David J. McCormick

David J. McCormick

Workers' Compensation Lawyer - Milwaukee, WI
Answered

You should be discussing this with a worker's comp. attorney before you do anything.

Good luck.

DISCLAIMER: David J. McCormick is licensed to practice law in the State of Wisconsin and this answer is being... more
Joseph J. Ranone

Joseph J. Ranone

Workers' Compensation Lawyer - Warwick, RI
Answered

Typically Social Security will take a credit for what you are receiving from comp since they are the primary payor for your injuries. For example, if your SSDI benefits would be $500.00 per week and your comp check is $400.00 per week, SSDI would be offset by the $400 and you would recieve $100 from SSDI.

In Rhode Islad, if you settle your case, the settlement amount will expressed as a weekly payment based upon your life expecatancy and that will become the SSDI offset.

The one thing you need to be aware of, and I assume it is the same for CA, is that if you settle your comp case, you will likely require a Medicare set aside which is a source of funds that is to only be used for future treatement associated with your comp case so that Medicare doesn't have to pay those meds.

No question you should consult with a local comp lawyer.

Nancy J Wallace

Nancy J Wallace

Workers' Compensation Lawyer - San Bernardino, CA
Answered

My colleagues left out the most important answer: You'll need an MSA.

When you are a Medicare/SSDI recipient, any final resolution requires a Medicare Set-Aside (MSA).

Without an MSA, Medicare 'presumes' the entire amount of any lump-sum award is for treatment and demands you turn over that amount.... so if you settled for $250,000, Medicare would demand you write them a check for $250,000 before getting any more Medicare benefits!!!

So, in California Workers Comp settlement documents for a lump-sum settlment (the Compromise & RElease Agreement, the equivalent of a divorce), you either (1) promise you won't apply for SSDI or Medicare in the next 30 months (2.5yrs) OR (2) set up a chunk of cash in a savings account ready to turn over to Medicare when Medicare asks for it.

That chunk is the Medicare SetAside, and it's done by agreement.

You'll have to wait for Center for Medicare Services -- CMS -- to tell you the amount Medicare will accept as the set-aside in the agreement... that's been taking about 6 months.

So the 'effect' is an extra 6-month wait on CMS and a savings account for Medicare.

You CAN settle by Stipulations With REquest For Award, but that's just an agreement as to Permanent Disability and that there "IS" need for Future Medical... then you get to go to war over each medical procedure the insurer 'non-certifies' for the rest of your life.

It's pretty tricky to fight for medical procedures 2,500 miles away...

SO: IF YOU NEGOTIATE A LUMP-SUM 'Compromise & Release Agreement', and you stay away from Social Security for 2.5 years, you get to keep all the Comp Payments for yourself, then you can go get Medicare and SSDI and they won't try to attach it.

Most of my clients in your position can't wait the whole 2.5 years, but if you can, it's a LOT more money in your pocket.

Related Advice

Questions? An attorney can help.

Ask a Question
Free & anonymous.
Find a Lawyer
Free. No commitment.