You are injured at work and you are unable to return to that job due to the injury. The insurance company contacts you and wants to "settle" your claim. You wonder what a reasonable value is for your claim? These are some of the factors you need to consider in Virginia. Other states will differ since each state has a slightly different compensation system.
If your claim has been accepted by the insurance company you should be receiving weekly compensation benefits and medical coverage. In Virginia the maximum compensation you can receive is as of July 1, 2009 is $895.00 per week. Your individual compensation rate would be two thirds of your average weekly salary not to exceed $895.00 per week.
Thus, if you making only $1,000.00 a week your compensation rate would only be $666.67 per week. In Virginia once you have an award you also are entitled to lifetime compensation for this injury. If you are unable to return to work, then in Virginia you could receive weekly compensation for up to 500 weeks. In certain rare instances such as a brain injury or the loss of two extremities, you can receive lifetime compensation benefits.
However, if you are unable to return to your pre-injury job but can do light duty work, the insurance company will make a strenuous effort to place you in some form of light duty employment. If the placement is successful, then the insurance company can reduce the compensation it is paying you due to the fact you are receiving a light duty salary. Of course, if the light duty salary equals or exceeds your pre-injury salary, then the insurance company no longer has to pay weekly compensation.
Virginia will provide compensation for a permanent injury to an extremity or hearing or vision. However, you cannot receive this type of compensation if you are still out completely on weekly compensation benefits. Very importantly there may be a need for future prescriptions, doctor's visits, additional medical operations, etc. Since a Virginia award means you have lifetime coverage for this injury, the costs of future medical care may well exceed the costs of weekly compensation payments.
With the above in mind, then the value of the claim is determined by:
- The salary and compensation rate;
- The number of weeks of potential compensation remaining;
- The inability to return to any form of work;
- The ability to return to some form of light duty work and the availability of such work;
- If there is a return to light duty work, the payment rate of such light duty work;
- Permanent injuries to any extremity or hearing or vision; and
- The projection of future medical bills.
The valuation can be complex and it is advisable that a claimant seek the advice of an experienced workers' compensation attorney regarding a proper valuation before you reach that final "settlement" with the insurance company.
IMPORTANT ARTICLES FOR SOCIAL SECURITY DISABILITY IN VIRGINIA
SHOULD YOU APPEAL A SOCIAL SECURITY DISABILITY DENIAL?
Social Security Disability is not available for everyone who has an impairment. If you are under age 50 and are still capable of some kind of employment in the national economy then you probably cannot get Social Security Disability. What you can do is contact your state Department of Rehabilitation and seek help in obtaining retraining or job placement. This service should be free for anyone who has an impairment. Of course, if you are still working and making $840.00 or over then you are presumed not to be disabled.
If you are over 50, then proving disability gets somewhat easier. However, your age really does not help you until you are 55 or over. If you are 55 or over, have a severe impairment that prevents past relevant work (PRW), then you are a better candidate for disability. If you have less than a high school education, are over 55, and have only a history of unskilled work, then you are even a better candidate for disability provided you have a severe impairment. As the above discussion shows, when applying for Disability, it is better to be older than 55, uneducated, and have no skills. If you lack any of these, then the case for Disability becomes harder. Alternatively, it is also helpful if the skills you acquired from your work are job specific and are not readily transferable to other occupations.
Of course, there are those cases in which the impairment is so severe that all employment is precluded even though the claimant is young or highly skilled or highly educated. But most cases involve claimants who because of their impairment cannot do their past relevant work (PRW). Then the Big Question becomes can they do other light work or perhaps sedentary (sit down work) in the national economy despite their impairment.
Where an individual case fits in the process can be determined by an experienced Social Security Attorney. He or she can evaluate the case and advise whether or not it is worth going forward.
TEN SOCIAL SECURITY DISABILITY MISTAKES TO AVOID
- You must apply for disability after you stop working. If you stop working due to a disability, then you need to apply. Social Security only gives you a window of opportunity to apply. Usually, this is five (5) years but if there is a gap in your work record it can be much shorter like one (1) or two (2) years. This is often a problem with housewives who drop out of the work force for a number of years to raise children.
- You must have enough quarters of work. If you have worked very little and Social Security says you do not have enough quarters, you may have to continue working in order to gain enough quarters to qualify.
- Your disability must last more than twelve (12) months. If you have a serious injury but you are going to recover within twelve (12) months, you are not going to qualify for Social Security Disability. A prerequisite for Social Security is that you have an impairment that disables you for twelve (12) months or that you can expect will disable you for twelve (12) months.
- You cannot be working when you apply. If you think you can work part time and qualify for Social Security Disability, you probably are not going to win your case. Social Security considers earned income an automatic disqualifier in most cases. In 2006, Social Security considers $860.00 per month as substantial gainful activity and an automatic disqualifier. So, if you make this amount even working part time, you cannot qualify for Disability. Also, even working part time, shows you have the ability to work.
- The Social Security doctor will probably not declare you to be disabled. Assuming a Social Security Doctor will examine you and agree you are disabled is a common misconception. Most often Social Security Doctors rush people through like an assembly line. The exam is often very cursory and the examiner may not have the medical expertise to really understand your ailment. Usually, they give very little credence to subjective complaints.
- You fail to file a timely appeal of a denial. Only about a third of claimants are granted at the initial level. After a denial you have 60 days to appeal. Your case cannot be given additional consideration unless you appeal.
- You fail to get medical treatment. Failure to obtain consistent treatment for your ailment is a common problem. Most social security judges will give little credence to an ailment that you have not sought medical treatment for. Thus, if you have a chronic pain complaint, you should at least make an attempt to manage the pain through a pain clinic or some other approach.
- You fail to have your own doctor's support. Social Security Rules give a lot of weight to a well written opinion by the claimant's own treating physician. Thus, if you believe you are disabled, you need to first consult your own physician for his/her opinion.
- You fail to consult a specialist. It may be well and good to have an opinion from your family doctor but if you have an impairment that requires the opinion of a specialist then you need to see one. For example, a lung problem may require a breathing test and the opinion of a pulmonologist. A heart problem may require a stress test and the opinion of a cardiologist.
- You fail to consult a Social Security specialist. Social Security Law is a unique area of the law. If you have a brain tumor you would not see a family doctor you would see a specialist. Likewise, for Social Security Disability you need to see an attorney who specializes in that field.
In Summary, many of the above mistakes listed above can be avoided if the claimant consults early on with an attorney who is a specialist in Virginia Social Security Disability law.
SSI V. SOCIAL SECURITY DISABILITY: HOW THEY DIFFER
Social Security Disability (sometimes called SSDI) and SSI are confused by many people. I have been a Virginia Disability Lawyer for over 30 years. None of my clients know the difference between the programs. These are the most important differences between these programs:
- In order to obtain Social Security Disability, you must have an earnings record and show you are disabled.Housewives come to me and say "Why cannot I get disability?" I reply, "Where is your earnings record?" Self-employed people call me and say, "Where is my disability?" I respond, "Did you ever file taxes and pay into Social Security?" People who are paid in cash or under the table contact me and request Social Security. I say, "You only get out what you paid in, it is not a free ride."
- For SSI, you do not need an earnings record. You only have to show you are disabled. But SSI is a welfare program and even though its full name is Supplemental Security Income it probably should have been called "Welfare Disability." As a welfare program, there is a means test. This means even if you are disabled you cannot receive SSI if you have either assets or income. In 2006, you cannot have more than $2,000.00 in cash assets and expect to qualify for SSI. The same housewife who could not obtain Social Security may also not be able to obtain SSI because (1) she has other unearned income; (2) her husband has too much income; and (3) she or her husband has too many assets.
- The Social Security benefit is dependent on the earnings the worker paid in and could be as high as $2,053.00 per month. Many ask me, "Why isn't my benefit higher?" My answer always is, "You get out what you paid in." Working at a minimum wage job is not going to result in a very high benefit. Not working for a number of years is also going to result in a lower benefit. On the other hand, the maximum SSI amount an individual can receive in 2006 is $603.00 per month but this does not depend on earnings.
- An individual on Social Security Disability can also expect a payment to dependent children up to age 18 or until the child graduates from high school. The dependent children share equally about 50% of the parent's benefit. On the other hand there is no dependent care benefit for a recipient of SSI. People on SSI will often call me and say "Where is my child's check?" Regretfully, I have to tell them SSI has no child benefit.
- Social Security Disability & SSI are similar in one way: the disability test is the same.
- When you file for Disability, Social Security will first check if you are eligible for Social Security Disability before allowing you to apply for SSI. Generally, if your Social Security check is higher than $603.00, you would not be eligible for SSI. On the other hand if your Social Security check is lower than $603.00, you may be able to receive a small SSI check so your total benefit is about $603.00 per month.
In Summary, when a person says I am on "disability" or I want "disability", there is a big difference between SSI and Social Security Disability. Remember SSI is a welfare benefit & Social Security Disability is an earned benefit.