SOCIAL SECURITY DISABILITY AWARDS COME UNDER FIRE

By Thomas P. Vecchio

Awards of Social Security disability (SSD) benefits are being scrutinized by Congress as a potential waste of taxpayer dollars.  The Wall Street Journal has recently published a series of articles questioning awards of SSD in general, and examining the particular practices of a West Virginia Social Security Administrative Law Judge (ALJ). 

A particular ALJ in West Virginia, who has since stepped down from the bench, was found to have awarded SSD in over 99% of all claims brought before him.  In fiscal year 2010, this ALJ heard 1,284 SSD cases.  He awarded SSD in all but four.  ALJs nationwide award SSD in approximately 60% of cases brought before them.  Moreover, a particular lawyer who practiced before that Judge had a remarkably high rate of success in his representation of disability claimants.   The relationship between that particular ALJ and the lawyer in question is the subject of a Congressional criminal investigation. 

Although the Florida Workers' Compensation Law formerly indicated that an award of SSD constituted proof of an injured worker's entitlement to permanent total disability (PTD), that direct nexus was modified by the First District Court of Appeal (DCA).  The First DCA held that a Judge of Compensation Claims must make an independent determination that an injured worker would qualify for SSD.  This often led to an absurd result where the JCC found that an injured worker was entitled to PTD by virtue of the fact that he would qualify for SSD, even where the Social Security Administration had already denied the Claimant's SSD claim. 

Even though the direct "SSD, therefore PTD" nexus is no longer the law, the attorneys who represent injured workers still continue to use the SSD process and the injured worker's award of SSD as one element of proving PTD.  An award of SSD, however, does not consider entitlement to disability within the confines of residuals of the injured worker's industrial accident.  An SSD applicant can be awarded benefits on the basis of preexisting medical conditions combined with injuries resulting from an industrial accident.  It is therefore incumbent upon employer/carriers to prove that the award of SSD was not related exclusively to residuals of the workplace accident.  This can be a difficult task where the Social Security Administration does not explain why it has awarded SSD, but only issues a generic award letter. 

Attorneys who represent employers and carriers need to be familiar with the Social Security Administration's five step sequential process for determining disability in order to show that residuals of the workplace accident alone would not, by themselves, render an injured worker eligible for SSD.  This enables employer/carriers to argue that although the injured worker may be disabled from the perspective of the Social Security Administration, this should not cause the JCC to automatically conclude that the injured worker is entitled to PTD as well.