Washington State House Bill 1336, sponsored by Representatives Kirby, Sells, and Appleton, was passed by the Senate on March 2nd, 2018. Governor Inslee signed the bill into law last week. Brian Wright attended the signing ceremony, celebrating the conclusion of this process over the 2017 and 2018 regular sessions.
This change amends the statute that governs the offset of workers’ compensation benefits paid when an injured worker is also receiving Social Security disability or retirement benefits, as follows:
Sec. 1. RCW 51.32.225 and 2006 c 163 s 1 are each amended to read as follows:
(1) For persons receiving compensation for temporary or permanent total disability under this title, the compensation shall be reduced by the department to allow an offset for social security retirement benefits payable under the federal social security, old age survivors, and disability insurance act, 42 U.S.C. This reduction shall not apply to any worker who is receiving permanent total disability benefits prior to July 1, 1986. This reduction does not apply to workers who had applied to receive social security retirement benefits prior to the date of their injury or to workers who were receiving social security benefits prior to their injury.
(2) Reductions for social security retirement benefits under this section shall comply with the procedures in RCW 51.32.220 (1) through (6) and with any other procedures established by the department to administer this section. For any worker whose entitlement to social security retirement benefits is immediately preceded by an entitlement to social security disability benefits, the offset shall be based on the formulas provided under 42 U.S.C. Sec. 424a. For all other workers entitled to social security retirement benefits, the offset shall be based on procedures established and determined by the department to most closely follow the intent of RCW 51.32.220.
(3) Any reduction in compensation made under chapter 58, Laws of 1986, shall be made before the reduction established in this section.
NEW SECTION.
Sec. 2. This act applies to claims with dates of injury on or after the effective date of this section.
We’ve been hearing from clients, both current and former, about the proposed changes to Social Security – and what we are hearing is fear. Our clients have been found too disabled to work under very stringent definitions of disability, but are now hearing that their already strained incomes may be cut – or taken away entirely.
They are scared.
And they are looking to us for assurances – assurances that, unfortunately, we cannot give.
We cannot promise our clients that their benefits won’t be cut.
We cannot promise our clients that their Medicare won’t be further compromised – that even fewer doctors will accept it, that fewer procedures will be covered, that the medications they need to survive and function won’t drop off the allowed formulary, that block grants will limit how much treatment they can receive in a given time frame, regardless of need or urgency.
All we can do is tell them what we do know – and, more importantly, we can remind them that they have a voice.
Please feel free to share our note with your clients or friends. Modify it to suit your needs and jurisdiction. And, please, think about our clients: when you vote, and when you voice your concerns to your legislators.
Dear Client:
First of all, no changes to Social Security have been made yet. Many things are being proposed, but budgets are subject to numerous changes before they are approved, and even once approved, they are subject to additional changes as they are implemented. And implementation doesn’t usually happen overnight – it takes place over years.
It’s true that cuts to Social Security Disability, Medicaid, and Medicare are all being discussed. However – cuts to these programs have been discussed every budget cycle for the past several decades! But nothing has actually happened yet.
At this time, we recommend that people:
Pay attention. You’re right that some changes are being talked about – be aware of what, and how that might affect you.
CONTACT YOUR LEGISLATORS. This is the most important thing! Whether your Senators and Congressional Representative share your party or not, they are still responsible for YOU as their constituent. Tell them that you rely on these programs, and how you would be affected by any changes. Tell them by whatever means you can: call, email, write, show up in person if at all possible. As we have seen on several recent legislative proposals, even deeply party-line legislators can be convinced to vote down proposals that their constituents have made clear are not in their best interests.
Don’t panic. Yes, these changes can sound scary – but remember, nothing has actually happened yet. It’s not a bad idea to make some contingency plans – could you reduce your living expenses? Can you start saving a little bit each month, to have a cushion against potential future needs? Are there any opportunities for you, within your limitations, to bring in some bit of income, just in case? – but beyond that, anything is just speculation. Panic makes it harder to advocate for what we need, so try to keep unproductive dwelling on “what if” to a minimum!
PLAN TO VOTE, in every single upcoming election. Watch what the politicians and candidates DO, not what they say! If they have voted to cut your benefits, they are not really looking out for you, and we all need representatives that truly work FOR us – not against us!
If you are receiving combined benefits through both Social Security and Workers’ Compensation, any changes to the Disability program will be at least somewhat mitigated, as your Workers’ Compensation benefits should increase to offset at least some of the loss in Social Security income, up to your maximum time-loss benefit. The possible impact on your Medicare is much harder to predict – we can’t say what will happen, when nothing has yet passed!
Our firm does not handle Social Security cases, and does not plan to do so. However, we are in close contact with our colleagues who still do, and we still participate in advocacy work for these programs, as we are aware of the need our clients have for them. Should changes take place that will affect our Workers’ Compensation clients, we will review the impacts and keep in touch.
Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.
Assuming you do not have an employment contract, you can only claim wrongful termination if the firing was motivated by certain unlawful reasons. Unlawful reasons include discrimination based on sex or gender – this includes sexual harassment and pregnancy – as well as race, religion, nationality and disability. In certain places and in certain situations, sexual orientation discrimination can also be unlawful. Disability in this context will often mean any serious or chronic health condition you have. Disability discrimination can also mean that you are taking care of someone with a disability.
You also cannot be discriminated against by your employer for certain activities on the job. This is commonly referred to as retaliation. One of these activities is taking extended leave under the Family and Medical Leave Act (FMLA) for your own or for a loved one’s medical condition. Other common protected activities include opposing unlawful discrimination; filing a safety complaint; filing a workers’ compensation complaint; complaining of pay practices; or complaining about other illegal activities. If you are a government employee, you might also have some claims based on constitutional law.
Essentially, not all terminations are unlawful. But if your situation fits into the categories described above, then be sure to contact an experienced employment attorney. In addition, it is wise to ask for advice about applying for unemployment, even if there’s not a wrongful termination case.
Today’s post comes from guest author Susan C. Andrews, from Causey Law Firm.
You hear it all over the place these days: there are lots of people out there who lied and cheated to get Social Security Disability (SSD) benefits. I’m here to tell you that is a myth. You don’t have to drill down very far to find out differently. I should know, from where I sit, as an attorney who handles SSD cases. Where I sit most days is in front of a big pile of medical records—I mean HUNDREDS of pages of medical records, all belonging to the same person. You see, some of my clients have just one great big medical issue—like cancer, or Multiple Sclerosis, or Parkinson’s, and many of my clients have multiple medical problems. Either way, they have spent more time in doctors’ offices and hospitals than any of us would ever choose to do.
There is a mistaken notion floating around out there that a person can just waltz into Social Security, claim to be disabled, and voila—he’s granted benefits!
There is a mistaken notion floating around out there that a person can just waltz into Social Security, claim to be disabled, and voila—he’s granted benefits! Nothing could be further from the truth. The burden of proof is on the claimant (the person claiming benefits) to show that he or she is disabled from engaging in substantial gainful activity (SGA) for a period of at least 12 continuous months. More about SGA in a bit. That proof starts with medical records, and diagnoses made by doctors. Self-diagnosing just doesn’t cut it, even if you’ve read up on your condition all over the internet, and you’re absolutely positive you know what’s wrong with you! Sometimes we get calls from people who do not have health insurance, and even though they have a serious medical condition, they have been unable to access much in the way of health care. Sadly, some of those folks who should be able to qualify for benefits do not, because they simply do not have the necessary treatment records to document the seriousness of their conditions.
As mentioned above, Social Security’s definition of disability is the inability, due to one or more medical impairments, to engage in substantial gainful activity for a period of at least 12 continuous months. Social Security defines SGA in part by a dollar figure that usually goes up a little every year. In 2013 it is $1,040. Social Security looks at a person’s GROSS earnings, not net earnings or take-home pay. So if I’m able to gross $1,040 or more per month, I can engage in substantial gainful activity and I do not qualify for SSD. This concept is important especially for individuals with progressive conditions.
Take, for example, a person diagnosed with Parkinson’s. One famous example is the actor Michael J. Fox. His Parkinson’s affects his functioning, but he is still working. Many people with progressive conditions continue to work for some time after receiving their diagnosis. At some point, progression of the disease may force some of them to go to part-time work. When the hours worked decrease, their earnings may no longer qualify as SGA. Or—and I see this a great deal in my practice—some people begin to have more bad days than good days, and work performance is impacted. There are days so bad that they really have no choice but to call in sick. Then this begins to happen more frequently than a couple of days a month. In my experience, at that point most employers become very unhappy campers. Not only are the employees taking sick leave faster than they are accruing it, they can’t tell their employers ahead of time which days they will wake up with an exacerbation of symptoms that keep them in bed, or at least in their bathrobe, all day.
Which brings me to my final point: Many of my clients look okay to the casual passer-by. Take the guy with a serious heart problem. Well sure, if I followed him around for half a day, I’d see that he can barely exert himself without getting out of breath. But if I just passed by, he might look fine. And the day he spends at home in his bathrobe because he can hardly catch his breath—I’m not going to see him at all when he’s having one of those really lousy days. His condition may be largely invisible.
To sum it up, I’d say there’s a bit of wisdom in being slow to judge. Thank goodness we take our good health for granted—it’d be a miserable existence if I spent too much time worrying about getting sick before it actually happened. But, of course, serious illness can strike any of us when we least expect it. And on the other side of that defining moment, the world can look a whole lot different.
Applications for Social Security Disability now can be filed online.
We get many calls from folks who have been off work for a while, and are wondering if the time is right to place an application for Social Security Disability benefits. There are several program rules that should be kept in mind in making this decision.
The first thing to know about Social Security Disability is that it is a program for people who have one or more health issues that prevent the person from working for a period of at least 12 continuous months. If you have not yet been off work for that length of time, but anticipate that may be the case, you may want to go ahead and apply, since the entire process can take months and, in some cases, a year or more, before a final decision is made. On the other hand, if you are fairly confident you will be able to get back to work before 12 months has passed, then holding off makes more sense.
…benefits can go back no more than one year from the date of the application. This is a matter of concern for those who hold off too long and, as a result, lose out on benefits to which they are entitled.
To collect any benefits at all, one must satisfy the above-described 12-month duration requirement. That said, once a person has satisfied the 12-month rule, it also is helpful to know that benefits cannot begin until five full months after the date of the onset of disability. So, for example, if I am diagnosed with a cancer and, because of my treatment, I must stop working on June 7, 2013, (and I know, because of the course of proposed treatment, that I am likely to be off work for more than 12 continuous months), then I could apply right away, but benefits would not begin until December of 2013. The five full months that I must wait for benefits to begin (in this example, July through November) is called the waiting period. The month of June cannot be counted because it is not a full month. Thus, if there is some possibility I might be able to return to work before 12 months has passed, depending on how my treatment goes, then I might want to hold off initially, to see how it goes.
The other rule to keep in mind is that benefits can go back no more than one year from the date of the application. This is a matter of concern for those who hold off too long and, as a result, lose out on benefits to which they are entitled. So in the example above, I stop working due to cancer treatment on June 7, 2013. That is my onset of disability date. I think I will be able to go back to work in less than 12 continuous months, so I do not apply. Complications ensue, and I am still off work one year later, past June 7 of 2014. Maybe at that point I am feeling really exhausted and unwell from all of the treatment and/or the cancer, so I just cannot get organized to apply for benefits. By the time I apply, it is March of 2015. Benefits can go back no further than March of 2014, even though I satisfied the five month waiting period in December of 2013. Assuming my case is approved for benefits, I lose out on benefits for that month and January and February of 2014 because I waited too long to apply. To avoid this consequence, one should apply no more than 17 months after stopping work due to the disabling health problem.
Applications for Social Security Disability now can be filed online. While this eliminates the need to go in person to a Social Security office to apply, the process, before all is said and done, still can be quite daunting. For this reason, we are available to assist you with the online application. The Social Security Administration has an informative website, where you can access the online application. If you are thinking about applying for benefits, it is worth taking a look. If you have questions, feel free to give us a call. Here is the link:
