SOCIAL SECURITY ADMINISTRATION

PRESSURES EVALUATING DOCTORS

By Thomas P. Vecchio

Faced with an enormous backlog of claims for Social Security disability (SSD), including 3.2 million new applicants in 2011 alone, the Social Security Administration (SSA) is pressuring physicians who evaluate SSD applicants to move claims through the system much more rapidly, according to a recent report from the Wall Street Journal.  

The SSD office in Baltimore, considered to be the leading SSD office nationwide, recently convened a meeting of 140 disability evaluation physicians to cover the new requirements.  Forty-five of the 140 physicians stopped performing SSD evaluations within months.   

The SSD system is being overwhelmed with new applications based on high unemployment, an aging population, and inconsistencies in the disability evaluation process.  It may be the first major federal entitlement program to become insolvent.

Physicians are being required to expend less time in evaluation of each case.  A particular physician in Alabama was reported to review between 80 and 100 files per day.  Another Alabama physician "signed off" on 30 cases in an hour.

Physicians who evaluate SSD applicants are now examining people with illnesses and injuries far outside their field of specialization.  Examples include an ophthalmologist evaluating back pain cases, dermatologists reviewing neurologic injuries, and a gastroenterologist evaluating hearing loss.  The SSA is advising these physicians that they are indeed capable and competent to make the appropriate assessment with respect to the claim for SSD.  Many physicians are complaining that SSA bureaucrats are encouraging them to change their opinions regarding the nature and extent of an individuals' disability.

Claims for SSD and claims for permanent total disability (PTD) under the Florida Workers' Compensation Law are significantly intertwined.  Although the current version of the Florida Workers' Compensation Law no longer contains the provision that an award of SSD constitutes proof of entitlement to PTD, claimants still continue to raise awards of SSD as an element of proof in proving PTD.  This can be very persuasive before certain Judges of Compensation Claims who might reason that a federal determination of disability implies that the claimant should be awarded workers' compensation PTD benefits as well.  Moreover, a claimant who has been awarded SSD is much more inclined to litigate a PTD claim, rather than settle, because SSD benefits provide sufficient financial support over the time during which the workers' compensation claim is being litigated.  Of course, SSD can be awarded for a wide variety of medical conditions, some of which may have no relationship to the industrial accident.

The workers' compensation systems of all states are affected more generally by liberal awards of SSD.  The SSA may come to realize that the precipitating factor which led to the award of SSD was a compensable workplace accident.  This could cause the SSA to implement changes that will shift the financial responsibilities of disability claims back to state workers' compensation systems.  Older Florida cases addressing the SSD offset refer to shifting the financial responsibility for disability to the "broader shoulders" of the federal government. 

Given the aggressive method by which the Centers for Medicare and Medicaid Services establish values on Medicare Set-Aside allocations, it is a virtual certainty that the SSA will look carefully at methods to shift the financial responsibilities for disability/wage loss payments back to the state workers' compensation systems.  CMS rarely accepts the initial MSA estimate submitted by the Employer/Carrier, and generally demands that a significantly higher sum be allocated for future medical treatment.  This demand often encompasses payments for medical treatment that has no relationship to the industrial accident.  If CMS exhibits this type of "heavy handed" approach in the method by which medical settlements must be funded, it certainly stands to reason that a similar approach with respect to disability payments could be implemented soon by the SSA.

The article that formed the basis of this column appeared in the November 21, 2011 Wall Street Journal.