Employment Law Blog

Massachusetts General Laws c. 151 B and 152, speak directly to handicap disability under the worker’s compensation act. Pursuant to M.G.L. Chapter 152, an employee who sustains a work related injury and is capable of performing the essential functions of a job, with or without reasonable accommodation is a “qualified handicapped person” under the Massachusetts discrimination statute. Pursuant to Massachusetts General Laws c. 151 B § 1, a “qualified handicapped person is defined as; a handicapped person who is capable of performing essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.

Massachusetts General Laws c. 151 B § 4(16), makes it unlawful for an employer to dismiss from employment or otherwise discriminate any person alleging to be a qualified handicapped person because of that handicap, as long as the person is capable of performing the essential functions of the position involved with the reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose and undue hardship to the employer’s business. It is the employer’s burden to demonstrate that the accommodation sought is unreasonable because it would impose an undue hardship on the employers business. Yates v. Mass- C.E.O.P.S., 17 MDLR 1503, 1514 (1995).

A reasonable accommodation under Massachusetts law is amodification made in the way a job is conducted to enable handicapped workers to perform specific job functions. The issue of reasonable accommodation is only considered when a handicapped person is not able to perform the essential functions of the job. In areas employees need assistance, employed are obligated to make reasonable accommodation unless the accommodation would impose an undue hardship or require waiving or excusing an inability to perform an essential job function including, productivity requirements.

Employers aren’t required to provide a particular accommodation proposed by a handicapped person if there is an alternative accommodation that is available and that would enable the person to perform the jobs essential functions or if the employer can demonstrate an undue burden on the company. An employer may require proof of the existence of an impairment if a handicapped person requests reasonable accommodation. An employer is only required to accommodate an employee’s condition and isn’t required to accommodate the employee’s misconduct. An example of this is in the case of mental illness an employer doesn’t need to accommodate anti-social behavior.

An accommodation doesn’t have to be independently required by other safety or health regulations in order for said accomadation to be considered reasonable. Examples of reasonable accommodations include; changes in work schedules and assigned tasks, modification of job requirements, and provisions of adaptive equipment, a part-time or flexible schedule, and lastly light duty work.

Lastly an employer doesn’t have to undertake an accommodation if doing so conflicts with the following; contractual rights of other employees, if it causes other employees to work harder or longer hours, or requires the employer to hire new employees. The United States Supreme Court has held that an accommodation is not required under the American with Disabilities Act (ADA) if it conflicts with a company’s seniority rules, unless the employee shows “special circumstances.” http://www.mass.gov/mcad/disability1a.html#1

An example of handicap discrimination that could lead to worker’s compensation benefits is; if an employee who suffered a work-related shoulder injury while operating a truck without power steering, was discharged after being refused future assignments to trucks with power steering, and his injury prevented him from operating such trucks, the employee could state a claim under both the Worker’s Compensation Act and Massachusetts General Laws c. 151 B

The forgoing article was drafted by Ashley for the Law Office of Goldstein and Clegg, a plaintiff’s employment law firm.

Unemployment insurance (UI) provides benefits to Massachusetts worker’s who are unemployed through no fault of their own. Unemployment insurance is a temporary income protection program for workers who have lost their job, and who are able to work, available for work, and looking for employment.1.) An individual benefits from unemployment insurance is a weekly check. The weekly benefit is about fifty percent of the individual’s average weekly wage, up to the maximum set by state law. The state law maximum benefit rate as of now is $600 a week.2.) Help with health insurance. The Massachusetts Division of Unemployment Assistance (DUA) provides health insurance assistance through the Medical Security Program. This is for residents of Massachusetts who are receiving unemployment insurance benefits. Massachusetts is the only state in the nation to offer a health care plan for unemployment insurance claimants. For an individual to be eligible for the Medical Security program they must fulfill the following requirements;

• they must be receiving unemployment benefits from MA,
• The unemployment benefits must be based (at least in part) on earnings from a MA employer
• The individual must be a MA resident.
• The individual must also meet the income eligibility guidelines. This being the total family income for six months prior to the date they apply for the Medical Security Program coverage plus the individuals projected income for the next six months is required to be less than the amount shown in the Federal Poverty Income Guidelines chart.
  • It should be noted that the total family income doesn’t include the income of dependent children.

3.) The Massachusetts Division of Unemployment Assistance provides opportunities to individuals to acquire training in order to be re-employed. In section 30 of the Massachusetts Unemployment Insurance law it allows the DUA to waive an active work search by claimants who meet certain eligibility requirements. Claimants can continue to collect their UI benefits while in approved training. Under certain circumstances the individual may be eligible for up to an additional 18 weeks of UI benefits while they are attending full-time training. In order to potentially be eligible for the 18 week extension the individual must apply to the DUA by the 15^th paid week of UI benefits. It is reminded to individuals that they choose the training program that is best for them and that will help find employment in their new occupation. It is crucial that the individual completes the application and has it submitted to the DUA by the 15^th paid week of unemployment insurance benefits.

4.) The DUA offers a Re-Employment Services Program. This is for individuals who are receiving unemployment benefits and are unlikely to return to their former job or occupation. This program is intended to identify the individuals who are likely to face a long-term employment. Based on information provided to the DUA by the former employer and the individual the DUA will determine if they meet the criteria. If the individual has been permanently laid-off within a week or two the individual may receive a letter scheduling them to attend a Re-Employment Options Seminar, which will give the individual information on the services available to them. The primary focus of the Re-Employment Options Seminar is to help the individual in mapping out their re-employment plan. The individual will fill out a career map inventory to help identify job search services that can help them. They will also complete an activity worksheet that lists a variety of activities to help the individual meet the needs identified by the career map inventory. The individual will also have an opportunity to work one-on-one to develop their “core program”, their career map activity plan. This includes the key activities that are mandatory for them to accomplish, based on the results of career map inventory and tailored to their needs. The individual will be required to keep track of the activities they have accomplished by completing the work search and re-employment activity log. If the individual is still unemployed after six weeks after they have attended the Re-Employment Seminar, they will have a status review interview. During this session, their work search and re-employment log will be reviewed to verify that their plan is on target. They will also learn about other services and activities that might interest of help the individual. Services include; job search workshops, assistance with writing their resume, improving their interviewing skills, and access to a computer base of job listings, both local and national job openings and training programs in their area.

5.) If an individual is receiving unemployment insurance benefits they may also be eligible to receive food stamps. The individual doesn’t have to be receiving cash welfare in order to receive food stamps. When determining if an individual is eligible for food stamps the amount of benefits received depends on the number and ages of the people in their household. The Food Stamp Program also looks both at their household income and expenses when deciding if their household can get food stamps.

6.) An individual may also receive housing assistance with Massachusetts Housing Programs. The Department of Housing and Community Development offers programs, housing and funding to communities to serve those with low to moderate incomes. In order for the individual to be eligible they will have to visit the website and look at the eligibility requirements to see if they meet the requirements and can receive housing assistance. http://www.mass.gov/dhcd/

7.) An individual may receive energy assistance. The Neighborhood Services Division of the Massachusetts Department of Housing and Community Development provides links to other agencies for things such as; heating bill assistance, heating system assistance, weatherization assistance, and other energy assistance programs such as; the Salvation Army, The United Way and Citizens Energy. In 2007, the Low Income Home Energy Assistance Program (LIHEAP) will provide fuel assistance to low-income people with annual incomes up to 200% of the federal poverty level or $41,300 for a family of four. Current benefits vary depending upon income levels. To find out exactly where an individual stands for eligibility regarding energy assistance it is recommended to view the Neighborhood Services Division’s website.

8.) The DUA has links on their website to help an individual with managing their finances. The IRS recognizes that the loss of a job can create new tax situations for an individual so the following information is provided to clarify the tax implications. The IRS has information on their website for individuals who have questions regarding tax information after the loss of a job.

9.) The DUA has links for individuals to receive financial counseling in order to help manage their finances while they are receiving unemployment insurance benefits. If an individual has problems paying their bills, credit counseling can help them. The DUA says to make sure that the individual chooses a non-profit credit counseling agency. The Consumer Credit Counseling Service of Southern New England offers such information as; tips for choosing a credit counseling agency, financial counseling, housing information, education finance counseling, and general financial information.

10.) The DUA offers Work Sharing Benefits. Work sharing benefits are based upon regular unemployment insurance benefits. There are several steps used to determine the individuals work sharing benefits. The DUA will determine your unemployment insurance benefit rate. This rate is the amount of benefits they would receive if they were totally employed. In order to do this, the DUA will need information on the individual’s earnings during the 15 months prior to them filing their claim. The earnings during the individuals two highest quarters will be added together and divided by 26 (the number of weeks in two quarters) to determine their average weekly wage. Their UI benefit rate is one-half of their average weekly wages. However the benefit rate can not exceed the maximum benefit rate set by law which is $600 a week. The individuals UI benefit rate is used to determine their Work Sharing benefits. The work sharing benefit is calculated using the percentage in reduction of the individuals working hours. If the working hours are reduced 20 percent, then the work sharing benefit is 20 percent of the individuals unemployment insurance benefit rate.

The forgoing article was drafted by Ashley, a Suffolk University student, who writes select pieces on employment law for The E-Legal Lawyer Blog

A Massachusetts personal injury lawyer Christopher F. Earley, has an informative post over at his Boston injury lawyer blog concerning the requirement to submit to an IME (independent medical exam), when a claimant slips and falls.

Recently, I have had several workers compensation clients ask me if they needed to allow the insurance companies doctor’s to examine them following their conciliation, but prior the workers comp hearing. I believe attorney Earley post sheds some light on this matter as it relates to Rule 35.

He correctly cites that if you are involved in slip and fall litigation in Massachusetts, you should be aware of the right of the defense to conduct an IME (Independent Medical Exam). This right comes from Rule 35 of the Massachusetts Rules of Civil Procedure which states: “When the mental or physical condition …of a party, or of a person …, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control.”

When an employee applies for Worker’s Compensation benefits they should think of whether they want to receive a lump sum settlement or weekly payments. A lump sum settlement is defined as “a settlement or contract between the employee, employer when applicable and the individual’s employer’s worker’s compensation insurer. This is a one time payment that will be made instead of weekly wage compensation check’s, and in some cases certain other benefits. The individuals must decide whether a lump summing their claim is in their best interests.”It’s very important for the employee when deciding whether or not they want to lump sum their case. They must weigh the present value of their lump sum against potential benefits.

If an individual was injured before November 1, 1986, they give up their rights to future weekly benefits to this injury and they will probably lose medical benefits relating to their injury and any right to rehabilitation.

If an individual was injured on or after November 1, 1986, they give up their rights to future weekly benefits. However they must establish liability for their case, meaning the insurer has agreed that it is responsible for payments, or a judge has order the insurer to pay benefits. This will determine eligibility for the individual’s future medical and vocational rehabilitation benefits. If the liability is established the insurer remains liable for future medical and vocational rehabilitation expenses pertaining to the individual’s injury. The insurer does however have the right to dispute future medical bills before, as well as after the lump sum.

By signing a lump sum settlement agreement an employer cannot tell the individual that by signing the agreement they are agreeing not to return to their employer. However signing a lump sum agreement doesn’t prevent the individual from the following; maintaining employment with the employer whose job you were hurt on, gaining employment with any employer, receiving any benefits owed to the individual by their employer, bringing any future worker’s compensation for other work related injury and lastly bringing any future claims of wrongful discharge or breach of contract claims.

When an individual accepts a lump sum settlement, they’re presumed incapable of working for their employer. The presumption continues for one month for every $1,500 included in the lump sum. The individual has no re-employment rights during this period under Massachusetts General Law’s chapter 152.

The Worker’s Compensation reform act effective December 24, 1991, requires in most cases that employers approve lump sum proposals. Where the employer has approval authority and doesn’t approve the lump sum, then the proposal doesn’t proceed and the individual will continue to receive weekly benefits if they were currently receiving them.

An individual can receive vocational training as part of Worker’s Compensation benefits if they are eligible. Vocational rehabilitation consists on non medical services. These services assist the individual who has suffered a work-related injury that results in a permanent functional limitation which doesn’t allow the individual to return to the same type of work performed before the injury. In order to receive vocational rehabilitation, either the insurer may voluntarily provide services or the department’s Office of Education and Vocational Rehabilitation may determine that the individual is suitable for services.

However, if an individual has been approved for vocational rehabilitation then their lump sum can’t be approved unless one of the following requirements are met. First the individual has returned to work for six or more months; they have completed the approved vocational rehabilitation program; they have received express written consent from the Departments Office of Education and Vocational Rehabilitation and lastly if the judge overrides any of the above mentioned requirements after appropriate notice and hearing. The individual has 104 weeks from the date of their lump sum agreement is approved to get into a rehabilitation program. If the injured party does not do so under the specific time then they forfeit the rights to any rehabilitation they may have retained.

A few other things that an individual should take into account when deciding whether or not to file for a lump sum settlement is that a lump sum settlement means that the individuals case is closed forever and the lump sum replaces future payments for the specific injury. Another thing to consider is a lump sum settlement doesn’t affect any other action or proceeding on any other separate and distinct injury whether the injury precedes or arises after their settlement date, and regardless of who the insurer and employer are. If the individual has a third party claim as part of their worker’s compensation claim, they should ask their attorney how it will affect their lump sum.

If an individual has engaged with an attorney, the attorney is entitled to 20% of the total lump sum amount if the insurer has accepted liability or has been assigned liability by the DIA. If the insurer hasn’t accepted liability and hasn’t been assigned liability then the attorney fee is 15% of the total amount. The fee for the attorney is lowered if the individual’s lump sum agreement includes money for a permanent loss of function and/ or scarring, an attorney cannot collect a fee on these benefits.

Another thing to consider is that by accepting a lump sum settlement it is the agreement of all parties that the individual is physically unable to return to work with the employer. Every $1,500 of the lump sum amount will equal one month for which the individual is presumed incapable of working for the employer. For example if the lump sum settlement is settled for $6,000 then the individual in incapable of returning to work for four months. However if the individual is not returning to the employer where they suffered their injury they may return to work immediately.

Lastly an individual should consider the following questions when deciding whether or not they want to settle with a lump sum settlement. First, are you able to return to work, do you still have unresolved medical problems resulting from the injury, will you be able to prove your injury is work-related, what is your income now, what are your expenses and lastly how will this affect your retirement and pension rights if you don’t return to work.

Only the individual can make the decision about whether the settlement is in their best interests. The Department of Industrial Accidents (DIA) is available to answer any questions and make sure the individual understand the proposed agreement however the DIA cannot make recommendations to the individual or negotiate on their behalf. The public information office in Boston can be contacted at 617-727-4900, or toll free at 1-800-323-3249, lastly the TTD number for the deaf and hard of hearing is 1-800-224-6196.

This article was written by Ashley

When an individual is disabled or incapable of earning full wages for five or more calendar days due to an occupational/ injury/ illness or death, the employer is required to file a form 101 with the Department of Industrial Accidents and their insurance carrier. The form must be sent within seven business days from the fifth day of disability. An insurer is required by a judgment of a court to pay to an employee any damages on account of personal injury sustained by such employee during the period covered by insurance, the insurer shall pay to the insured the full amount of such judgment and the cost assessed therewith Massachusetts General Laws C. 152 § 25.Once the insurer receives the form 101, they have fourteen days to pay the benefits or to notify the employee and the Department of Industrial Accidents (DIA), that they are contesting the claim. The insurance company can pay on a claim for up to 180 days without prejudice, during which time they can stop or modify the payments after giving a seven day notice of termination or reduction to the injured individual and the DIA, in which they must give reasons for taking such actions. After the 180 day pay without prejudice period has passed, the insurer can stop or reduce the payment only for reasons specified by the workers compensation act and regulation. After 180 days if the insurer decides to continue paying the individual past the period they must have permission from the individual and a judge to stop or reduce payments at that time.

The 180 day “Pay without Prejudice” period can be increased by the insurer to one year with the individuals written consent and on a form 105 titled “Agreement to Extend 180 Day Payment without Prejudice” The DIA must approve the form 105. The individual must make sure that they are aware of all their rights before giving consent or signing any other document. http://www.mass.gov/dia/DESKSCAN/eeguide.pdf

All orders or decisions issued in accordance with workers compensation matters shall be enforceable unless and until reversed by a decision of a member of the DIA board or a reviewing board, or a judgement or decision of a court of the commonwealth; and payment of compensation, when ordered, shall commence immediately, with the first payment to be received by the employee within fourteen days of the issuance of any such order or decision, and shall cover all periods for which compensation is due under this chapter. Massachusetts General Laws C. 152 § 17. Moreover, pursuant to Massachusetts law, if an insurance agency fails to provide compensation due to an employee ordered by the commission or an administrative law judge, the insurance company can be enjoined from issuing workers compensation policies in Massachusetts thereafter.

If the insurer decides that they are going to deny the initial claim for benefits they must notify the individual by certified mail of the denial, they must give reasons for denying the claim and also advise the individual that they are entitled to appeal the denial by filing a claim with the DIA.

The claim of the injured individual must be submitted on a form 110 titled “Employees Claim Form.” This form must be filled out completely and accurately. The form is available online at www.mass.gov/dia or available at any DIA office. Form 110 is the same form that is filed when the insurer began to pay the individual their benefits but then later notified the individuals that they are going to stop or reduce their benefits.

There are documents that need to be attached with form 110 when filing an appeal, a list of documents that need to be enclosed with the form is available at www.mass.gov/dia. It is recommended that the individual retain a copy of form 110 for themselves and their records. After the form is complete it must be sent to the DIA’s Boston office they cannot be sent to a regional office.

A letter of the appeal must also be sent to the insurer, the individual’s employer is required by law to provide the name of the insurance company and their address. If the employer refuses to give such information, or they don’t carry workers compensation insurance than the DIA needs to be notified immediately.

Lastly, when an individual comes to any DIA office for a proceeding it is recommended that they bring all paperwork they have filed and any paperwork they received from the DIA or the insurer.

If an individual is injured during the course of employment or suffers from work-related mental or emotional disabilities, as well as occupational diseases, they’re eligible for worker’s compensation benefits. http://www.mass.gov/wcac/wc-over.html Benefits that an individual can receive for worker’s compensation are; weekly compensation for lost income during the period the employee cannot work. Indemnity payments for individuals vary depending on their average weekly wage (AWW) and the degree of incapacitation. The Massachusetts Worker’s Compensation statute, http://www.mass.gov/legis/laws/mgl/gl-152-toc.htm dictates that the maximum benefit not exceed 100% of the State Average Weekly Wage (SAWW) and the minimum benefit of at least 20% of the SAWW. Also in addition to benefits, the insurer is required to provide medical and hospital services, and medicines if needed. Moreover, the insurer must pay for vocational rehabilitation services if the employee is determined to be suitable by the Department of Industrial Accidents (DIA).

There are five various forms of indemnity and supplemental benefits that individuals may receive depending on their average weekly wage, state average weekly wage and their degree of disability.

The first form is Temporary Total Disability (section 34). Compensation will be 60% of the individuals average weekly wage prior to their injury, while remaining above the minimum and below the maximum payments that are set for each form of compensation. The maximum weekly compensation rate is 100% of the state average weekly wage ($1,000.43), while the minimum state average weekly wage is $209.09. If claims involve injuries occurring on or after October 1, 2006, the limit for temporary benefits is 156 weeks.

The second form of benefits is Partial Disability (section 35). Compensation is 60% of the difference between the individuals average weekly wage prior to the injury and the weekly wage earning capacity after the injury. The amount cannot exceed 75% of temporary benefits under section 34, if an injured party is to receive those benefits. The maximum benefits period is 260 weeks but may be extended to 520 weeks.

The third form is Permanent and Total Incapacity (section 34A). In this form the payments will be 2/3 of the individuals average weekly wage following the exhaustion of temporary (section 34) and partial (section 35) payments. The maximum compensation rate is 100% of the state average weekly wage ($1,000.43) and the minimum is 20% of the state average weekly wage ($209.09). If the claims involve injuries that occurred on or after October 1, 2006, the payments must be adjusted each year for the cost of living allowances (COLA).

The fourth form is Death Benefits for Dependents (section 31). The widow or widower that remains unmarried shall receive 2/3 of the individual’s average weekly wage, but not more than the states average weekly wage and no less than $110 per week. They should also receive $6 per week for each child and this is not to exceed $150 in additional compensation. There are also benefits for other dependents. Benefits paid to dependents cannot exceed 250 times the state average weekly wage plus any cost of living increases. (COLA) Children under 18, may however continue to receive payments even if the maximum has been reached. Burial expenses may not exceed $4000.

The fifth form is Subsequent injury (section 35B). An individual who has been receiving compensation and has returned to work for two or more months and is subsequently re-injured will receive compensation at the rate in effect at the time of the new injury unless the old injury was paid in a lump sum. In the old injury was settled with a lump sum settlement will only the individual will be compensated only if the new claim can be determined to be a new injury. http://www.mass.gov/wcac/ben-i-s.html

When an individual is disabled or incapable of earning full wages for five or more calendar days or dies as the result of a work related injury or disease , the employer must file a First Report of Injury. The form must be sent to the Office of Claims Administration at the DIA, http://www.mass.gov/dia, the insurer and the individual within seven days of notice of the injury. If the employer doesn’t file a First Report of Injury form it may be subject to fines.

This article was drafted by Ashley

If an individual applies for Social Security disability insurance and is denied there is an appeal process they can through in order for reconsideration of their application. If an individual wishes to appeal the Social Security Administration’s decision regarding their application for disability insurance they can do so, however they must make their request in writing within 60 days from the date they received Social Security’s denial letter. The Social Security Administration assumes that the individual receives their letter five days after the date posted on the letter, unless an individual can show them they received it later. There are generally three or four levels of appeals; the first being reconsideration, second is a hearing by and administrative law judge, third is a review by appeals council and lastly is a federal court review. When the Social Security Administration sends an individual their letter about their decision on their claim they give them instructions on how to appeal the decision.

The first level of appeals is reconsideration. Reconsideration is a complete review of the individual’s application by someone who didn’t take place in the first decision. The individual at the Social Security Administration reviewing the application will look at any evidence submitted when the original application was sent in and also any new evidence. Most of reconsideration reviews are done without the individual present, however if the individual is appealing a decision that they are no longer eligible for disability insurance because their condition has improved, they can meet with a Social Security representative to explain to them why they believe they still have a disability.

The second level of appeals is a hearing by an administrative law judge. If an individual disagrees with the reconsideration decision, they may ask for a hearing. The administrative law judge conducting the hearing is one who had no part in the first decision or the reconsideration decision in the individual’s case. The hearing is held usually within 75 miles of the individual’s home, and the administrative judge notifies the individual of the time and place of the hearing. The individual and their representative (if they have one) may come to the hearing to explain their case to the judge in person; they may look at the information in their file and give any new information that they have. In order for the administrative law judge to make his/her decision they will question the individual and their witnesses they bring to the hearing. Other witnesses such as medical and vocational experts may also give the judge information at the hearing. The individual or representative then also may question the witnesses. It is usually to the individuals advantage if they attend their hearing, however if they chose not to do so they must notify the Social Security Administration in writing that they don’t want to attend. In some situations they hearing may be held as a video conference rather than in person. The individual will be notified ahead of time if this is the case. A video conference is often more convenient for the individual, it also is usually faster to schedule a video conference than an in-person hearing. Lastly the video conference may also make it closer to their home so it would make it easier for the individual to have witnesses and others accompany them. Unless the administrative law judge believes that the individual presence is needed to decide the case he or she will make their decision based on all the information in the individual’s case and that’s including any new information. Lastly when the administrative law judge has reached their decision the individual will be sent a letter and a copy of the administrative law judge’s decision.

The third level of appeal in denial of Social Security disability benefits is an appeals council. This level of appeal happens when the individual doesn’t agree with the hearing’s decision they make ask for a review by the Social Security’s Appeals Council. The Appeals Council looks at all requests for review, they can however deny a request if they believe that the decision of the hearing was correct. If the Appeals Council decides to review the individual’s case it will either decide the individuals case itself or it will return it to an administrative law judge for further review. If the Appeals Council denies the individuals request for a review they will send the individual a letter explaining the denial, if the Appeals Council makes a decision on the case the individual will be sent a copy of the Appeals Council’s decision, and lastly if the Appeals Council returns the case to an administrative law judge for further review the individual will receive a letter and a copy of the order for further review from the Appeals Council.

The last level of appeals is federal court. If the individual disagrees with the decision of the Appeals Council or the Appeals Council denied request for a review of their case, the individual may file a law suit in a federal district court. The letter that the Social Security Administration sends to the individual explaining about the Appeals Council’s action will also have information regarding how to ask a court to look at the individual’s case.

An individual may still be eligible to receive disability insurance while the Social Security Administration makes a decision on their appeal if, the individual is appealing a decision that they can no longer get Social Security disability benefits because their medical condition is not disabling or, if the individual is appealing the Social Security Administration’s decision that they are no longer eligible for SSI payments or that their SSI payments may be reduced or suspended. If the individual wishes to continue receiving benefits they must notify the Social Security Administration within ten days of receiving the administration’s letter. If the individuals appeal is turned down they might be required to pay back any money they were not eligible to receive.

An individual appealing a Social Security disability denial has the right to have a representative help them in their appeals process. The Social Security Administration offers free help with the appeals process however the individual may also opt to have a lawyer, a friend or someone else to help them. The Social Security Administration will work with the individuals representative in all the steps to appeal, the representative can act for the individual in most Social Security matters and will also receive copies of any decisions made about the individuals claim. The representative however cannot collect any fees from the individual without prior permission of the Social Security Administration. Rules about representation can be found on the Social Security Administration’s website. http://www.ssa.gov/pubs/10075.html

In order to contact the Social Security Administration for further information regarding a denial of disability insurance their website at www.ssa.gov is a very useful resource of information they also have a number of things the individual can do online. The individual can also contact the Social Security Administration directly by calling them at 1-800-772-1213.

This article was written by Ashely

The Social Security Administration pays disability benefits in two different ways. The first way is through the Social Security disability insurance and the second one is through the Supplemental Security Income (SSI) Program.For information about disabilities programs for children please refer to http://www.socialsecurity.gov/pubs/10026.html.

Social Security pays benefits to people who can’t work because they have a medical condition that is expected to last at least one year or result in death. The federal law requires such strict definition of disability, while some other programs give individuals benefits who have a partial-disability or have short-term disability, Social Security doesn’t. An individual must meet certain earnings requirements in order to be eligible for benefits. Individuals must meet two different earnings tests to be eligible for disability benefits. The first test is a “recent work” test which is based on the individual’s age at the time they became disabled and the second test a “duration of work” test to show that they worked long enough under Social Security. An individual should apply for disability benefits as soon as they become disabled because it can take a long time to process the application for disability benefits. It typically takes about 3 to 5 months. After the application is sent the Social Security Administration will review their application and make sure they meet some basic requirements for benefits such as whether they worked long enough to qualify and they will evaluate any current work activities. If these requirements are met then they will then send your application to the Disability Determination Services office in their state. This agency makes the decision for the SSA, they use their doctors and disability specialists to ask their doctor information about their condition, all facts in their case will be considered. They will also use evidence from any hospital, doctor’s office, clinics or institutions that the individual has been treated in order to obtain all other information. http://www.socialsecurity.gov/pubs/10029.html#part1 this link will provide information pertaining to the rules for the “recent work test” and also examples of work need for the “duration of work” test. Lastly individuals will also be able to find out what questions are considered in order to make the decision in which whether or not an individual receives disability benefits.

The Supplemental Security Income program http://www.socialsecurity.gov/pubs/11000.html makes monthly payments for individuals with low income and few resources who are also disabled. They also make monthly payments for individuals who are 65 and older and individuals who are blind. In order to be eligible to obtain SSI benefits, the eligibility is based on income and resources which are the things an individual owns. According to the Social Security Administrations income is defined as money you receive such as wages, Social Security benefits, and pensions. Income can also include such things as food and shelter. The amount of income an individual can receive each month and still get SSI depends partly on where the individual lives. In order to obtain information pertaining to how much an individual will receive based on the state they live in, they should call the Social Security Administration at 1-800-772-1213. Social Security doesn’t count all of an individual’s income when deciding whether or not they qualify for SSI benefits. Things that Social Security doesn’t count are; the first $20 a month of most income an individual receives, the first $65 a month an individual earns from working, and half the amount over $65, food stamps, shelter they receive from a nonprofit organization(s) and lastly most home energy assistance. If an individual is married the Social Security Administration also includes a part of their spouse’s income and resources when deciding whether they qualify for SSI, and if an individual is under the age of 18 the SSA includes part of their parent’s income and resources and if an individual is a sponsored noncitizen they may include their sponsor’s income and resources. If the individual is a student then some of the wages or scholarships they receive may not count. If an individual is disabled but works Social Security doesn’t count wages an individual uses to pay for items or services that may help them work, for example if an individual buys a wheelchair to be able to work, Social Security doesn’t count those expenses when deciding whether they qualify for SSI benefits. Social Security also doesn’t count any wages a blind individual uses for work expenses, for example transportation to and from work are not included in determining eligibility for SSI. Lastly, if an individual is disabled or blind some of the income they use or save for training or to buy things they need to work may not be counted. Resources that are counted in determining eligibility for SSI benefits are; real estate, bank accounts, cash, stocks and bonds. An individual may be able to get SSI benefits if their resources are worth no more than $2000, and a couple may get benefits if their resources are worth no more than $3000. Also if an individual owns property that they are trying to sell, they may be able to get SSI while they are trying to sell it. Social Security does not count the following in determining an individual’s eligibility for benefits. First the home they live in and the land it’s on, life insurance policies with a face value of $1,500 or less, an individuals car (usually), burial plots for an individual and members of their immediate family and lastly up to $1,500 in burial funds for the individual and up to $1,500 in burial funds for their spouse. Other rules that an individual must meet for eligibility are; to obtain SSI they must live in the U.S. or the Northern Mariana Islands and be a U.S. citizen or national. In some cases, noncitizen residents can qualify for SSI. For more information on qualifications for noncitizens please visit the website http://www.socialsecurity.gov/pubs/10026.html . For the rest of the rules an individual must meet in order to be eligible for SSI benefits please visit http://www.socialsecurity.gov/pubs/11000.html#part2 .

It should be noted that the basic SSI amount is the same nationwide however many states add to the basic benefit. In order to find out whether an individuals state adds extra benefits call the Social Security Administration. Lastly the Social Security Administration manages the SSI program however even though Social Security manages the program, SSI is not paid for by Social Security taxes. SSI benefits are paid for by the U.S. Treasury general funds, not the Social Security trust funds.

This article as written by Ashley Gurdon, a Suffolk University student and intern for the employment lawyers at Goldstein and Clegg, LLC

In order to apply for any Social Security benefits one must find out if, first they qualify for the benefits they are wishing to receive. There are various options one has to determine if they would be eligible. One such way would be to contact an attorney who handles social security filings. Another option is take an online eligibility test at https://secure.ssa.gov/apps7/best/benefits/. The test is called B.E.S.T.- Benefit Eligibility Screening Tool. The test is not an application for benefits and it doesn’t give you an estimate of benefit amounts, ask you for your name, or social security number and lastly it doesn’t access your personal Social Security records.You can apply for Social Security benefits online however you can’t apply for all aspects of Social Security benefits online. Online you may apply for retirement, disability and spouse’s benefits. You are also able to restart an incomplete application and check the status of a claim at: https://s044a90.ssa.gov/apps6z/ISBA/main.html .You are not allowed to use the internet application if you are applying for Supplemental Security Income (SSI) benefits, however you can begin the process of applying for SSI disability for an adult of child by completing an online disability report. http://www.socialsecurity.gov/applyfordisability/ An individual cannot apply online for benefits for children, benefits as a surviving spouse, lump sum death payments and lastly apply for Medicare coverage only. Instead of applying online for the listed items above the individual must call toll free at 1-800-772-1213, and for the deaf and hard of hearing the TTY number is 1-800-325-0778. Applicants can also apply by mail or in person at any Social Security office. However they must first make an appointment in order to apply for benefits. The application process can sometimes be complex and confusing, as such, it is sometimes helpful to seek the services of an attorney. By law, an attorney can only receive a fee for SSI or SSDI benefits after you are receiving funds, and in most cases the attorney only receives a percent of the benefits you were do in the past, but not any money due in the future.

Some things that an individual would need to take into consideration when applying for these benefits are; an individual must be ready to supply the information needed in order to approve an application for benefits. The Social Security Administration also may ask the individual to provide certain documents to show that they are eligible and to assist in the decision of how much the benefits should be. http://www.ssa.gov/r&m2.htm . If an individual is considering having direct deposit they must also bring their bank information in order for the process to be started. It should be noted that if an individual has filed for Social Security disability benefits and have been denied the benefits within the last 60 days they are not to use the internet application to file an appeal. If an individual is unsure whether or not they are still within the appeal period they should call the Social Security Administrations toll free number to acquire assistance before completing the internet application. An individual is also entitled to choose a representative in order to assist them with business regarding Social Security. The Social Security Administration would work with the representative as they would work with the individual. For more information about the right to representation for Social Security, please review the Social Security Administration’s publication regarding representation. http://www.socialsecurity.gov/pubs/10075.html

This article as written by Ashley Gurdon, a Suffolk University student and intern for the employment lawyers at Goldstein and Clegg, LLC