The Overlap Between Social Security Disability and New York Workers’ Compensation

Many claimants in the workers’ compensation (WC) system are either receiving Social Security Disability (SSD) benefits or applying for SSD benefits. It is important to have some knowledge of how Social Security Disability benefits can affect the WC claim and how a person’s application/eligibility for SSD can affect the WC claim.

The Meaning of Disability 

In New York, a WC claimant must produce medical evidence of a causally related degree of disability in order to receive ongoing indemnity benefits for lost time from work. A claimant can receive indemnity benefits if they are totally disabled (100%), or have any degree (1% or more) of casually related degree of disability. The claimant’s weekly disability benefit rate is affected by the ongoing degree of disability.

The Social Security Administration (SSA) does not provide degrees of disability (i.e. 25%, 50%, 75%, 100%), a claimant either meets their definition of disability, or they do not. Social Security’s definition of disability is “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” For the year 2016, the Social Security Act classifies “substantial gainful activity” (SGA) as earning more than $1,130.00 per month. Each year Social Security adjusts the amount of earnings per month which they consider to be SGA. Here is a chart for the SGA dated back to 1975.

Additionally, WC only takes into consideration disability due to the compensable injuries/conditions. Social Security takes into consideration all of the applicant’s disabilities.

Indemnity Benefits/Return to Work

It cannot be assumed that a claimant who is receiving Social Security Disability benefits is not working. While it is likely a person who is receiving SSD benefits has not returned to work in any capacity, it is possible for an SSD beneficiary to be working. As the SSA wishes to encourage people to return to work, they allow for a trial work period which does not jeopardize their SSD benefits. During a trial work period, the claimant can earn above $810.00 per month in up to nine months during a sixty month (5 year) period and still be entitled to SSD benefits. It is likely if a WC claimant is working and receiving SSD benefits, there will still be a reduced earnings claim through workers’ compensation.


Medicare Eligibility/Settlement

Social Security Disability beneficiaries automatically become eligible for Medicare two years (24 months) from the date they become eligible for benefits. The date an applicant becomes eligible for benefits is five months after the disability onset date established by Social Security. For example, the claimant receives a Notice of Award in June 2015 with a disability onset date determined to be May 2013. Due to the five month waiting period, the applicant is eligible for SSD benefits as of October 2013. Under SSD rules, the applicant will automatically be eligible for Medicare two years from the date they first started receiving SSD benefits. In this example, they will be eligible for Medicare as of October 2015.

As previously discussed, determining whether a claimant is eligible for Medicare benefits is extremely important when considering settlement which involves closing future medical benefits.

Labor Market Attachment

In New York, if a WC claimant has less than a total degree of disability they have an obligation to remain attached to the labor market. If the claimant’s treating physician(s) opine the claimant has a partial disability (anything less than 100%) or there has been a finding by the Board that the claimant has a partial degree of disability (either permanent or temporary) the claimant has a legal duty to continue to search for work within his/her restrictions.

It is possible for a claimant to remain attached to the labor market while receiving Social Security Disability benefits. Remember, there is no obligation for the claimant to actually return to work to show attachment to the labor market, but there is an obligation to search for work. However, if the carrier or defense counsel has raised labor market attachment, it is important to know if the claimant has applied for, or is receiving SSD benefits. If a claimant is receiving SSD benefits, or has applied, it is most likely this individual does not have any interest in returning to the labor market.

Declan is an attorney licensed to practice law in New Jersey, New York and the U.S. District Court of New Jersey. Declan is a Partner at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. He can be reached directly at dgourley@lois-llc.com or 201-880-7213.