DISABILITY TIP OF THE WEEK: Unemployment Payments

If you file for unemployment when you leave your job due to a disability, you damage your chances of receiving Long Term Disability benefits from your insurance company and from the Social Security Administration. When you file for unemployment, you are certifying that you are capable of working. This, obviously, undermines your credibility because if you certify that you are capable of working, your insurance company and the Social Security Administration will think that you are, in fact, capable of working.

If you receive unemployment benefits and you file for Social Security Disability ("SSD"), your SSD benefits may be reduced by the amount you received for unemployment.

REMEMBER: Even though it is tempting to apply for unemployment in order to have income while you are waiting for your disability benefits, this could ruin your claims for those disability benefits. If you have filed for unemployment, make sure you let your attorney know.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

Social Security Cost of Living Increases to Be Announced on October 16th

On October 16, 2008, the Social Security Administration is expected to announce cost of living increases for Social Security Disability and other Social Security benefits. Some estimates have the COLA ("cost of living adjustment") coming in around 5%, a very high figure compared to past increases. Stay tuned for the announcement.



Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

DISABILITY BENEFIT TIP OF THE WEEK: When should I apply for Social Security Benefits?

In general, you should apply for Social Security Benefits as soon as possible. First, you want to get the process started as soon as possible. The initial decision can take anywhere from 3-6 months. If you are denied and must appeal, it can take another 3-6 months for the reconsideration. If you are again denied, it can take 12-24 months to get a hearing, depending on where you live. This means that the entire process can take up to 3 years! The sooner you apply, the sooner you can get the process started and the faster you can get your benefits.

By applying sooner rather than later, you can also maximize the amount of your benefit. Under the Supplemental Security Income ("SSI") program, your benefits are only payable from the first full month after the date you apply. For example, if you apply on September 30, 2008, your benefits would start as of October 2008, but if you wait until October 2, 2008, your benefits would not start for another month (November 2008). Just a few days of waiting can mean losing a month's worth of benefits.

Under the Social Security Disability program, your benefits are only payable for up to a year before you apply, depending on the date of the onset of your disability. Again, the longer you wait, the less money you are eligible to receive.

REMEMBER: Waiting to apply can cost you money! After getting your paperwork together and making sure your doctor is on board, you should submit your application to Social Security and get the process started.


Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

DISABILITY BENEFIT TIP OF THE WEEK: How often should I see my doctor?

One of the things that both insurance companies and the Social Security Administration use to determine if you are disabled is the frequency with which you visit your doctors. Here are a few pointers.


Long Term Disability

• Most insurance companies would like to see you treating once a month to once every two months.
• Most insurance companies have a provision that requires you to be under the "regular care of a physician." You can find out what the definition of regular care is by reading your plan document.

Social Security Disability

• Social Security generally weighs the opinion of a "treating physician" more heavily than a one-time evaluating physician. A treating doctor is one that has seen you at least three times.
• Social Security also values the opinions of specialists (i.e., rheumatologists, oncologists, orthopedists) more than general practitioners (i.e., internists and family medicine doctors).
• Most of the time, it is better to see a doctor with an M.D. or D.O. degree than a doctor of eastern medicine, a chiropractor (D.C.), physical therapist, or nurse.
• In general, you should be seeing a doctor at a minimum of once every 2-3 months, though more is better.

REMEMBER: The more frequently you treat, the more credibility you have and the more documentation you will have of your disability. In order to make sure you have proper documentation, please click here and here for additional tips.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved. Any content borrowed or referenced from another source is referenced by citation to the original source as noted in the text above.

Americans with Disabilities Act Amended

President Bush signed the ADA Amendments Act (the "ADA-AA") of 2008 into law today. The new law will be effective on January 1, 2009. This law was Congress' fix in response to a recent Supreme Court case which construed the terms "disability" and "significantly limits a major life activity" in a way that have drastically limited the group of Americans that truly can benefit from the ADA.

The ADA-AA significantly changes court interpretations of the ADA as follows:

• It explicitly removing the Supreme Court's requirement that mitigating measures (like taking medication) be considered when evaluating whether an individual has a disability within the meaning of the ADA;

• It included language in the findings and purposes section to clarify that the courts' previous interpretations of the term "substantially limits" [in the phrase "substantially limits a major life activity"] was wrong;

• It defines the phrase "major life activity" to include "operation of a major bodily function" such as the neurological, circulatory, and reproductive systems, though other bodily functions may also be included as well;

• It clarified that a physical or mental limitation that is episodic or in remission is a disability if it would substantially limit a major life activity when active;

• It ordered the courts to interpret the ADA liberally, not restrictively;
  

• It aligned the definition of "disability" under other federal laws, such as the federal Rehabilitation Act, which covers federal, state, and local government employees, to the ADA-AA. However, it did not include ERISA plans - employee benefit plans that offer disability benefits - or insurance policies in this new definition, so ERISA plan sponsors are still free to define disability however they like (so you must read an employer's disability plan or an insurance policy to see what conditions are needed to get paid disability benefits.
  

It will be interesting to see what impact this new law will have on the meanings of these terms in other disability contexts. It will also be interesting to see if the Long Term Disability insurance carriers and ERISA plan administrators change their attitude toward work accommodations, as many have long said that a disability that could be accommodated under the ADA meant that a person could work, despite language in disability insurance plans and policies that seem to say exactly the opposite.

Copyright (c) 2008 by John V. Tucker and Tucker & Ludin, P.A. All rights reserved.