A proposal is pending to make a Social Security approval of SSDI benefits proof of total disability under the NY work comp law. Presumably, it is believed that this will reduce needless duplication adjudications of disability in work comp claims.
If so, the Board may be in for a series of rude surprises. The differences between SSDI entitlement and NY Workers Compensation law “total” are so great that they bear little resemblance to each other.
Differences in SSDI and Workers Compensation Total Disability:
- The burden of proof is different. WC decisions must be supported by a “scintilla of evidence. SSDI requires “preponderance of the evidence.
- Causes of disability may not be the same. SSDI considers the cumulative effect of all conditions. NY work comp considers only those disabilities related to the comp claim.
- Definitions of disability are not the same. SSDI permits payments unaffected by casual earning of several hundred dollars a month. Work comp permits no earnings while on total disability, except for a person’s claim that results in 100% loss of vision.
- Duration of disability requirements are different. Work comp requires evidence of permanency into the indefinite future for permanent total. SSDI requires only one year of total and none of that is required to extend into the future. At many SSDI hearings, the applicant has already returned to work.
- In SSDI, payments can overlap full work activity for nine months during a trial work period, even though the earning may be greater than the pre-disability levels. Work comp permits no trial work period with concurrent payments for total disability.
Board Should Decline Proposal
In addition, a full transcript of the SSDI hearing may be necessary and, although obtainable, the process is neither swift nor easy.
The Board may discover that the road to this goal is partly paved with good intentions, but mostly mixed with sharp edged boulders.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. [email protected]
Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: [email protected].
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