Published May 27, 2011
By Robertson H. Wendt Jr.
No one plans a disabling condition, but it has the potential to cause distress in every area of your client’s life. As attorneys, we often see clients dealing with a multitude of issues that result from this unfortunate situation. Here are a few things attorneys should consider when advising someone who is dealing with a disability:
- If it appears that the disabling condition will last a year or more (or is expected to result in death), clients should apply for Social Security Disability, or SSD. Applying is relatively easy and may be done online, by phone or in person at the local Social Security Administration office. Those who qualify receive a monthly benefit based on earnings history, with annual cost-of-living increases and Medicare coverage for as long as they remain disabled. When recipients reach full retirement age, their benefits will convert to retirement benefits at the same rate. Dependent children of disabled clients are also eligible for monetary benefits, excluding Medicare, until they reach the age of 18.
- Clients should understand that, even if they are receiving other benefits such as workers’ compensation, they may also be eligible for SSD and should apply as soon as possible. The SSD process can take a long time, so the sooner the application is in, the quicker the benefit may be awarded.
- Clients who wait too long to file for Social Security Disability may receive fewer retroactive benefits, may delay their Medicare entitlement (which has a two-year waiting period), and in some cases may put the entire claim at risk. Most clients lose their health insurance at some point after becoming disabled. If the client no longer can afford treatment, it becomes difficult, if not impossible, to obtain the opinion of the treating physician, which is usually critical to getting the claim approved.
- It is important to know the qualifying criteria when applying for SSD, including the legal definition of a disability and the earnings record under which a client may qualify. People may qualify under another wage earner’s earnings record, such as a parent, spouse, or in some cases a divorced spouse. The system can be very complex and is more easily navigated by attorneys who regularly practice in this area of law.
- Clients should explore other disability benefits available to them. Some may be covered under short-term and long-term disability plans through their employment or under a private policy. State and local government employees may be eligible for disability retirement benefits and, in some instances, continued group health insurance coverage through the S.C. Retirement Systems (SCRS). Some federal employees are eligible for disability benefits through other federal plans, such as the Federal Employees Retirement System (FERS) or the Railroad Retirement Act. Clients who are veterans may be eligible for disabled veterans’ benefits, including non-service connected disability and free medical care.
- Disabled people also should check into options such as credit-disability policies, a common feature with many credit cards and lending institutions, which may cover payments in the event of a disability. Additionally, some federally insured student loans may be waived in the event of a disability.
- State retirement disability claims pose a dangerous trap for the unwary because the application must be filed within 90 days of the client’s termination. If your client is a state or local government employee (including public school teachers), you should counsel him or her to file the disability application immediately. In fact, the S.C. Retirement Systems allow the filing of a disability claim while the client is still working, and if the claim is approved the client may then retire.
- Some clients eligible for S.C. Retirement Systems disability are so desperate for income when they lose their government job that they wish to cash in their contribution. Clients should be strongly cautioned against that course of action because the potential loss of benefits, including continued health-insurance coverage in some cases, far exceeds the amount of the client’s contribution. Advise such clients that SCRS claims are processed relatively quickly, and that the legal standard is easier to prove than for Social Security Disability.
- While it’s possible to navigate the Social Security Disability system as an individual, clients should be aware that hiring an attorney can greatly enhance their chances of approval should they need to appeal. Statistics published by Social Security show that the approval rate for appeals is higher when the client is represented by an attorney.
- Clients should make sure their attorneys have experience in handling Social Security Disability claims and are able to handle the case through all levels of appeal. Out-of-state lawyers are allowed to handle Social Security claims at the administrative level anywhere in the United States. However, if the case has to be appealed to federal court, the out-of-state lawyer is usually not admitted to practice in the South Carolina District Court and can no longer handle the claim.
- People should be aware that Social Security allows non-lawyers to represent claimants at the administrative level only. Clients should be careful, as many people and companies offering representation in SSD claims are not actually attorneys.
- Clients should be advised to fully research and evaluate any so-called free representation offered by a long-term disability carrier. In most cases the “free” representatives are not attorneys, and because they are being paid by the insurance company, they may have a conflict of interest. Don’t let your client sign up for representation without consulting a SSD specialist to explore the potential consequences.
With disabled clients, an awareness of all of the claim options and details is of vital importance, as the settlement of one may adversely affect another if the process is not managed well from the outset. Statutes of limitation and policy limitations can take a client by surprise with severe adverse consequences, so timing can be crucial as well. The coordination of various claims is key, and a qualified SSD attorney can make sure that application for and receipt of all benefits to which a client is entitled are handled in the most effective and efficient manner.
Clients will be well advised to obtain representation with significant experience in the area of disability benefits law, ideally someone who is board certified. Since Social Security disability fees are limited by regulation, getting a more qualified attorney doesn’t translate to bigger fees, just a better result for the client.
Robertson H. Wendt Jr., who practices law in Charleston, S.C., is one of 59 Social Security Disability specialists certified by the National Board of Legal Specialty Certification. He serves disability clients throughout South Carolina and can be reached at firstname.lastname@example.org.