1339 Pauline Dr.

Sunnyvale, California 94087

Law Offices of

A Professional Law Corporation

Phone: 408-737-2313

Fax: 408-737-2937

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  1. Can I Receive Workers Compensation Benefits, Social Security Benefits, and Long Term Disability Benefits at the Same Time?

                A disabled employee may receive Workers Compensation, Social Security, and Long Term Disability Benefits at the same time.  The disability standards for each of these is different.  The receipt of one does not assure the receipt of any of the others.  Courts in the Ninth Circuit that includes California have explicitly stated that the award of Social Security does not conclusively determine that an employee will receive benefits in a long term disability case because the standards are different.
                Every long term disability plan that we have reviewed, whether self-funded or insured, has provided for coordination of benefits generally referred to by the term “offsetting benefits.”  Under the terms of these plans, the plan will guarantee payment of a certain percentage of the employees’ salary at the time of disability (usually between 50% and 70%) offset by certain specified benefits received by the employee.  These offsetting benefits generally include benefits received as the result of disability through any governmental plan (Workers Compensation, SDI, Social Security Disability benefits, Veterans Administration benefits, PERS etc.) and any disability retirement plan (PERS, STRS, local government or county plans).  These offsets are usually described with specificity in the plan.  Some plans, for example, will only offset primary Social Security benefits payable to the disabled employee while others will include Social Security benefits also payable because of the same disability to family members, whether or not those family members actually live with the disabled employee or not (children at college who live with a divorced spouse).  It is important to review the offsets in the plan in detail.

  2. How Should My Workers Compensation Attorney Characterize My Workers Compensation Benefits So that the Plan Will Not Offset the Entire Amount?

    Your Workers Compensation attorney should designate the permanent disability award in a Compromise and Release specifically as a Permanent Disability Award.  Your Workers Compensation attorney should also designate the amount to be allocated for future medical care specifically by the dollar amount if possible.  Your Workers Compensation attorney should not combine temporary disability benefits owing with permanent disability benefits and future medical care in a general dollar amount since the insurer or plan will then attempt to offset this entire amount.  If possible, the entire amount should be designated for “future medical care.”

  3. W hat Is the Effect on a Long Term Disability Claim of Filing An Americans with Disabilities Act Claim, a Social Security Claim, Or a Workers Compensation Claim?

                Even though the plan will integrate Workers Compensation and Social Security benefits, it is in your best interest to file claims for, and obtain, Workers Compensation and Social Security benefits if possible.  Workers Compensation benefits are generally limited as to amount and time of payment, but future medical care can last a lifetime.  Additionally, Social Security benefits are subject to periodic cost of living increases.  The plan will only integrate the initial or primary payment, and not the cost of living increases, and, therefore, as the Social Security amount increases over the years, you will see increased funds.
                The filing of a claim under the Americans with Disabilities Act of 1990 (“ADA”) may not be inconsistent with a claim for disability under an LTD plan.  Most LTD plans consider disability initially from a person’s “own” or “regular” occupation and later under an “any occupation” standard.  Under the first or “own” occupation definition, the employee must be unable to perform the material and substantial duties of his or her own occupation.  Under the “any occupation” definition, the employee must be unable to perform the material and substantial duties of any occupation which he or she is capable of performing in light of his or her education, training, and experience.  At least in the Ninth Circuit which includes California, the court has held that the proper inquiry under the “own occupation” definition of disability is whether or not the employee seeking benefits can perform his or her own occupation without accommodation.  Therefore, filing an ADA claim against an employer who fails to reasonably accommodate an employee is not automatically inconsistent with filing a long term disability claim and receiving long term disability benefits at least under the “own occupation” definition.
                 Similarly, the Supreme Court has held that pursuit and receipt of Social Security Disability benefits does not automatically prevent a recipient from pursuing an ADA claim.  However, the Court held that an ADA plaintiff cannot ignore his or her Social Security contention that he or she was too disabled to work but must explain why that contention is consistent with his or her ADA claim that he or she can perform the essential functions of the job at least with reasonable accommodation.  The Supreme Court reasoned that an ADA claim can coexist with a Social Security Disability claim because the Social Security Administration does not take into account the possibility of “reasonable accommodation” in determining Social Security Disability eligibility while the ADA does.

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