Published Articles
Legal Remedies for Disabled Workers (courtesy The South Amboy-Sayreville Times)
One of the most disturbing problems faced by working people is where to obtain income or help when you are disabled and can no longer work, or when you believe you have been unfairly terminated from your job. This article discusses benefit programs for both workers and non-workers, as well as employment-related causes of action based on Federal law.
Many people are not aware that Social Security has a disability benefits program. For people with a good work history on the books, there is the SSDI program in which benefits are roughly correlated to your average salary. For those with little or no work history, the SSI program provides a basic income for people who have few or no assets. Both programs provide benefits for spouses and children under certain circumstances. SSDI provides Medicare coverage, no matter what your age, and SSI provides Medicaid coverage.
In order to obtain these benefits, you must be able to show that, not only can you no longer do your regular work, but you cannot engage in any other work which exists in significant numbers in the national economy. It is not easy to meet this burden of proof, but those who are older, less skilled, and less educated have an easier time of it.
The first step to take in securing these benefits is to obtain an application from your local Social Security office. If you are not sure whether you qualify for either program, you should apply for both. Frequently, a Claims Representative will try to discourage you from applying for benefits, or from appealing a denial of benefits. If you believe that you can no longer work due to physical or mental disabilities, you should not allow Social Security personnel to discourage you from filing for benefits, or appealing their denial. There is a four-step administrative procedure that must be followed, and Federal Court is a last resort. It is very helpful to have an attorney or representative assist you from the initial stage. However, once you reach the third stage - the hearing before an Administrative Law Judge - it is best to have an attorney or representative at that point and beyond. This is because if you lose the hearing, you will have to wait up to 2 years before you can get another hearing. In certain circumstances, you may not be able to get another hearing if certain errors are made at the first hearing. Fees for representation are usually on a contingency basis and are limited by law to 25% of the claimant's retroactive benefits.
The most important aspect of a Social Security disability or SSI claim is obtaining adequate medical documentation of your illness or disability. It is vital that your physician or health care provider support your application for benefits. He or she will be asked by Social Security to document your limitations with respect to work. A supportive doctor can make your case; an antagonistic doctor can cause you to lose it. This situation is particularly troublesome for people who suffer from controversial or little-known illnesses such as Chronic Fatigue Syndrome or from a combination of illnesses which, by themselves, are insufficient to be disabling. Another reason to have a competent representative is so that your representative and your doctor can work together to help you win your benefits.
A more troubling aspect of these claims is that they take a long time to process. With some variation, the average case takes about 18 months to 2 years from initial application to hearing decision. It could take longer. Most claims are denied at the initial level. Of those appealed to the reconsideration stage (Stage two), about 14% are granted. The reconsideration stage has been eliminated in NY. The overwhelming number of disputed claims are won at the Stage three (hearing) level.
What can be done while these claims are pending? You should know that most working people would be eligible for the New York State short-term disability benefits program which is administered by the Workers' Compensation Board. These benefits are minimal in amount, and last up to six (6) months. They are a short-term solution. Denial of these benefits can also be appealed.
In addition to Social Security and New York State Disability, many people may be eligible for additional benefits by virtue of having worked for an employer who provides a private employee benefit plan, or by virtue of membership in a labor union. These plans are governed by a Federal statute called the Employee Retirement Income Security Act (ERISA).
ERISA is helpful to disabled workers because, singly or in conjunction with the Americans with Disabilities Act (ADA), it can be used to prevent an employer from taking action against an employee to deprive that employee of benefits under the employee benefit plan. However, not every form of discrimination or adverse action is addressed or protected by ERISA. This area of law is complex and evolving. Yet, it is important for employees and union members to know that they may have a remedy under ERISA if they feel they are being deprived of some benefit to which they believe they are entitled under their employee benefit plan.
Likewise, the Americans with Disabilities Act of 1990 provides a broad mandate against discrimination towards people with disabilities. It is important for workers with disabilities to know that the ADA requires employers to adapt work environments and job duties, in order to provide "otherwise-qualified" individuals with disabilities with an equal employment opportunity. "Otherwise-qualified" means that, except for your disability, you are qualified and able to perform the job for which you were hired. The accommodation required of the employer is to be "reasonable," which is determined on a case-by-case basis. An employer may have certain defenses, such as the proposed accommodation constituting undue hardship to the employer. To protect their rights to such accommodations, employees with disabilities must advise their supervisor or employer of the difficulties they encounter on the job in connection with their disability. It is preferable to do this in writing. They should keep a record of their employer's response, if any, to their concerns. Once the employer is put on notice that a disabled worker requests accommodation, the employer's failure to respond to such a request may render him or her liable under the ADA. The employee may benefit from having an attorney negotiate with his or her employer prior to considering any type of legal action. The ADA and ERISA represent hard-fought victories for those with disabilities, and such individuals should consider whether pursuing a remedy under the ADA and/or ERISA would be appropriate in their situation. You should also be aware that both the ADA and ERISA are "fee-shifting" statutes, which means that a prevailing plaintiff can ask the court to have his or her attorney fees paid by the defendant.
Many people also have long-term disability (LTD) insurance purchased either individually or through their employer or other group affiliation. It is surprising how many LTD carriers freely deny coverage or award of benefits to those who pursue such benefits. Most times, LTD benefits are denied on some type of coverage technicality or because the carrier believes that the insured individual's impairment is not severe enough. If this happens to you, you should consult an attorney immediately, since frequently the time in which to appeal denial of such benefits is 60 days or less. Even if you do not wish to retain legal counsel, a consultation could provide you with valuable information on how to appeal this denial and how to obtain adequate medical documentation. As a last resort, if administrative (in-house) appeals are exhausted, legal action can be brought against the LTD carrier under ERISA.
Taken in combination, or individually, SSI, Social Security Disability benefits, ADA, ERISA, and LTD insurance provide valuable remedies to those with disabilities.
Contact the Newark and Manhattan law offices of Josephine Gottesman, Attorney at Law, for a free and confidential consultation. Call us toll free at 1-888-375-3060.
Appeals In Disability Law (courtesy The South Amboy-Sayreville Times)
By Josephine Gottesman, Esq.
This edition of our column discusses Medicare appeals and appeals for denial of long-term disability benefits. The process in both situations is similar to appeals from denials of Social Security disability and SSI claims.
When you, as a Medicare beneficiary, are initially notified that a claim for either equipment or services has been rejected, or benefits have been denied, you must file an initial appeal within the time frame specified on the denial notice. Following denial of a first-level appeal, you must request reconsideration. Following that, there is a hearing before an Administrative Law Judge and an Appeals Council review similar to Social Security appeals. Only after all appeals at the Administrative level have been exhausted, you may then proceed to Federal Court. Any break in this process due to late filing may result in a final judgment against you, the Claimant, that may no longer be appealed.
An attorney who represents you in such a matter must have his/her fee approved by the Social Security Administration before payment is made. If you proceed to Federal Court, and you win at that level, your attorney may apply for a fee under the Equal Access to Justice Act. Such fee is paid by the government, not the Claimant.
If you have been denied long-term disability (LTD) benefits, or your benefits have been terminated, you will go through a similar appeal process. This time, however, you must deal with the internal appeals processes set up by the insurance carrier which is handling your LTD benefits. You must work within all of the time frames set up by the insurance carrier in its specified appeals process. Once all of those administrative appeals have been exhausted, and only then, you may proceed to Federal Court under the ERISA (Employees' Retirement Income Security Act) law.
If you are a prevailing party in Federal Court in an ERISA lawsuit, meaning that your lawsuit has either been settled or you have won at trial, your attorney may apply to have his/her fee paid by the Defendant(s) in the matter.
As in Social Security disability and SSI denials, in Medicare and ERISA matters it is best to retain an attorney sooner rather than later. It is always much easier for a Claimant to prevail on the Administrative level than to prevail in Court. Whether or not you retain an attorney, your claim must always be well-documented with supporting materials from service providers.
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