Written by attorney Gerald Gregory Lutkenhaus

Virginia Workers' Compensation & Social Security Disability: Can you get both?

You are disabled and you are on Workers' Compensation for your injury and you want to also obtain Social Security Disability for this injury. This article addresses whether this is possible.

Social Security Disability, is a Federal program that provides monthly income to disabled people (1) who have paid into the Social Security system while working and (2) who have proven they are disabled and unable to work. The amount of monthly income is dependent upon earnings paid in by the worker in the years prior to the disability with the maximum benefit a disabled worker could receive in 2006 being $2,053.00 per month. The worker's dependents could receive an additional 50% of his amount.

Virginia Workers Compensation. is a state of Virginia program that provides benefits for the disabled worker who is injured on the job. The amount of the benefit is two thirds of the worker's gross salary with a cap of $895.00 per week as of June 1, 2010.

The Social Security Offset: In 1965 Congress passed an amendment to Social Security enacting the Social Security Offset. Since 1965, Social Security will reduce its benefit if a combination of the Social Security benefit and the Workers' Compensation benefit exceeds 80% of the worker's average current earnings. Social Security calculates the average monthly earnings based on the best year of employment in the five years preceding the onset of the worker's disability.

An Example of how the Offset Works: John Doe receives a monthly workers' compensation benefit of $3,000.00. John Doe then qualifies for Social Security and would receive $1,500.00 a month based on his earnings record with Social Security with an additional $750.00 for his children. Social Security calculates John Doe's average earnings based on his best year in the last five years prior to his disability as $5,000.00 per month. However, the combination of John Doe's Social Security and Workers' Compensation equals $4,500.00 ($3,000.00 plus $1,500.00) and 80% of his average earnings is only $4,000.00 ($5,000.00 x 80%). Thus, John Doe exceeds the 80% cap by $500.00 and his Social Security would be reduced to $1,000.00 per month ($4,500.00 - $4,000.00) and he would receive nothing for his children. If John Doe had dependents, they could have received 50% of his $1,500.00 Social Security amount or $750.00 as their dependent check. However, due to the receipt of Workers' Compensation the dependents would not receive anything. Thus, John Doe in this example loses $500.00 per month for himself and $750.00 per month for his children in Social Security due to his receipt of Workers' Compensation benefits.

What About A Settlement to Escape the Offset? John Doe cannot easily escape the offset by doing a lump sum settlement of his Workers' Compensation Claim. Normally, if John Doe does a lump sum settlement of his Workers' Compensation Claim, the settlement will still be subject to the offset. Social Security will prorate the settlement to reflect the monthly rate that would have been paid had the lump-sum award not been made. Medical and legal expenses incurred by the worker may be excluded when computing the offset. For example, if John Doe settles his workers' compensation claim for $100,000.00, Social Security will divide this $100,000.00 by fit by $3,000.00 (his monthly workers' compensation benefit, pre-settlement) and continue the offset for over 33 more months ($100,000.00 divided by $3,000.00). An experienced Workers Compensation/Social Security lawyer may be able to avoid this offset.

In Summary, like tax planning to avoid additional taxes, a worker who is receiving both Workers' Compensation and Social Security Disability, must do careful planning to avoid a reduction of his benefits for both himself and his dependents. This is especially true if the worker does a lump sum Workers' Compensation settlement. If the worker is not careful, the worker may face a reduction of his Social Security Disability for both himself and his dependents for a long time. In the above example John Doe had an offset for another 33 months because he did a settlement without consulting an experienced attorney.

Social Security has not allowed claimants to later amend worker's compensation settlements to avoid the offset; therefore, careful planning must be done prior to the settlement.

Call Jerry Lutkenhaus now for a free evaluation: 804-358-4766

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Additional resources provided by the author

Jerry Lutkenhaus is a practitioner of Workers' Compensation and Social Security in the Richmond, Virginia area for over 30 years He was given an "AV" rating by Martindale Hubbell in 2003. Lexis Nexis listed him in the 2005 Bar Register of Preeminent Attorneys. For more information, see our websites at and or call Jerry Lutkenhaus at 804-358-4766 for a free consultation on your claim.

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