New York Social Security Disability Lawyer Blog

Many of our clients have Workers' Compensation cases going on at the same time we are representing them in their Social Security Disability or Long Term Disability claims. Having handled the Workers' Comp claims myself for over 20 years before turning exclusively to the other areas gives me a leg up on maximizing client benefits and explaining the interplay between the two.

Last week I had a unique opportunity to pass some of this knowledge along to the Commissioners of the New York State Workers' Compensation Board when I made a presentation to them at their monthly meeting in Albany. A link to the presentation as a webinar can be found at the Workers' Compensation Board webcasting archives (to access the presentation, click on "Guest Speaker---Lewis B. Insler, Insler & Hermann, LLP" and then click on either Dial Up or Broadband to watch).

I tried to explain Social Security using analogies from Workers' Compensation Law that they would understand. Although I was mostly policy neutral, I did try to make the point that a finding of disability by Social Security, regardless of the medical conditions under which it was found, should negate the contention that a claimant has "voluntarily retired" from the labor market. The insurance carriers make that argument in more and more cases and it is simply illogical if Social Security Disability has been approved.

The Commissioners had very few questions, as they had other business to move on to when I finished, but I was asked about fees and, interestingly, about fraud. (Later in the week the Nassau County District Attorney announced they had arrested seven people in a Workers' Compensation fraud investigation.) I told them that while some claimant fraud undoubtedly exists, Social Security does little proactively to combat it due to budget constraints.

My more important point to them was that fraud exists not only on the claimant's side, but that several IME's (Independent Medical Examiners) have been removed or are being sued for fraudulent exams or reports made on the behalf of the Social Security Administration.

In the past decade or so the pendulum in New York Workers' Compensation has swung away from the claimants. I like to think my presentation may have given it a little momentum back in their favor.

Lew Insler

About a year ago the New York Times published a report about abuses within the Long Island Railroad Disability retirement program. The gist of the report was that nearly 90% of retirees from the LIRR were supplementing their Retirement benefits with additional payments governed by the Federal Railroad Retirement Board.

Follow up reports by the Times articles authors noted that recommendations have been made to overhaul the Railroad Retirement Board's Disability evaluation processes and, although there has not been much reported about this issue for the past year, I am sure that some internal investigations have commenced.

What bothers me about the article about abuses and the subsequent follow up is how it hurts the truly needy workers. I can personally attest to the fact that since the Times article was published in September 2008, the Railroad Retirement Board has changed its practices. That is not to say that they used to approve every one of my clients' Railroad Retirement benefits applications. On the contrary, if the medical and vocational evidence didn't support a claim, it was correctly denied.

However, whereas the Social Security Administration's claims examiners seem to be stuck in a culture where they have to deny 60+% of all initial applications for disability, I never got that impression in dealing with the claims examiners from the Railroad Retirement Board. The Board's claims examiners approved the claims where appropriate and denied the claims they couldn't justify approving - but without the creative analysis used by SSA's examiners. Since last year's article, however, I have noticed more denials where the claims examiners are taking a page right out of the SSA playbook and denying many more Railroad claims.

I certainly understand why they are doing it; it's just a shame that a Federal agency which actually seemed to be focused on helping their disabled workers is now forcing them to jump through the same hoops that Social Security claimants have been forced to jump through for years.

Gabe Hermann