Representing the Older Disabled Worker


Representing the older worker requires familiarity with the many diverse legal rights and benefits systems. The lawyer should be familiar with unemployment compensation, workers' compensation, social security disability, private disability insurance law, group disability insurance (ER1SA) law, the Family Medical Leave Act, the American's with Disabilities Act, age discrimination laws and the like. This article will overview how many of these laws interact in the event of a work injury.

Workers' Compensation & Unemployment Compensation

Workers' compensation pays wage replacement and medical benefits for disabilities thai "arise in the course and scope of employment." Arguments by the employer that the disability is caused by a preexisting condition rather than the work itself arc more frequent in the cases of older workers, for obvious reasons, [f the older worker suffers a work injury that is questioned by the employer or its workers' compensation carrier, (he first problem is securing a replacement for the lost income incurred while the workers' compensation case is being pursued. A workers' compensation case can lake nine months to one year to reach a final decision.

If the older worker can secure a medical release from his doctor, but the employer cannot accommodate the restrictions given, the worker is eligible for unemployment compensation benefits, as well as workers' compensation, lie is "ready and available for suitable employment" by virtue of the release but is considered to have "quit for necessitous am! compelling reasons" because the employer cannot accommodate the restrictions.

Unemployment compensation is ordinarily paid swiftly in such situations, providing the worker with at least 26 weeks (currcntiy 39 weeks) of replacement income. Upon successful completion of the workers' compensation claim, the unemployment compensation benefits paid arc a credit deducted from the workers1 compensation due. By properly coordinating the two benefit systems, the older worker secures benefits more quickly than she would by pursuing a workers' compensation claim alone.

Other Disability Benefits, Social Security Disability & ERISA

In the event of more protracted injuries or disabilities, applying for disability benefits under private or employer provided disability contracts should be considered.

Consideration also should be given to applying for social security disability benefits. Like unemployment compensation, these benefit sources can provide income replacement benefits while awaiting protracted workers' compensation litigation.

Employer provided group disability contracts ordinarily pay benefits for the first two years of disability if the worker is unable to perform her customary and usual occupation. After this "own occupation" period, the worker must demonstrate that she is disabled from "any occupation" for which she is suited. Such contracts are governed by ERISA. Claims are most often administrated by the insurance company contracted to provide benefits. Appeal procedures are very restricted.

The social security disability program requires that the worker prove disability from any suitable occupation. As the worker approaches retirement age, other work must require less and less adjustment to be suitable. Therefore, it becomes progressively easier to prove disability as the worker approaches traditional retirement age. Appeal procedures are more liberal.


Importantly, social security disability recipients are entitled to Medicare coverage two years after the tlrst month of entitlement to disability benefits. Medicare provides coverage for all medical problems unlike workers' compensation which just covers only the work–related disability. Most disabled older workers cannot afford to continue employer provided health insurance under COBRA, making the coverage provided by Medicare a significant benefit.

Retirement Benefits

Older workers often consider early retirement when they cannot work due to disability. Early retirement is not always an appropriate option. Early retirement reduces the amount of social security benefits paid. In comparison, a social security disability recipient automatically converts to retirement benefits when she reaches retirement age and receives her full retirement benefit.

Workers' compensation benefits are reduced by 50% of each dollar of social security retirement benefits received. Employer provided retirement benefits can reduce workers' compensation benefits dollar for dollar, to the extent that the retirement benefit was funded by the employer. The effect of these credits must be assessed in order to determine when it is appropriate for injured older workers to retire. Application for retirement benefits might best be deferred until the workers' compensation claim is resolved. The impact of retirement upon entitlement under disability contracts must also be assessed.

Coordination of Multiple Benefits

Attention must be directed to the proper coordination of multiple benefits. Social security benefits are reduced ("offset") by workers compensation benefits received. Disability contracts reduce the benefits paid based upon social security disability benefits received. Workers'compensation carriers may claim a credit for disability payments made pursuant to employer provided insurance contracts.

Despite these difficulties, application for multiple benefits is an important and desirable technique. Entitlement to ultiple benefits sources reduces the impact of the termination of any one income source. Establishing entitlement to other beneths, especially social security disability, makes it easier to resolve the workers' compensation claim.

Settlement of the Workers' Compensation Claim

Settling the workers' compensation claim provides certainty to claims that are subject to litigation and possible termination. Settling workers compensation claims in cases where social security benefits are being reduced ("offset") clue to the receipt of workers1 compensation can mitigate or eliminate that offset and provide the okler worker with a larger social security disability benefit and a lump sum of cash, maximizing the benefits received by the older worker.

When the settlement documents arc drafted, special provisions should be included to reduce the offset applied against social security benefits. Several techniques are available to reduce the offset. For older workers closely approaching retirement age, additional techniques may be employed to eliminate the offset.

In addition, techniques exist to legally shift the responsibility to pay for work related medical expenses from the workers compensation earner to Medicare. Caution should be exercised when the injured worker requires significant medication. Prescriptions are reimbursed in full by workers' compensation but are not reimbursed by Medicare.


By properly orchestrating the older worker's multiple rights and benefits, the attorney can maximize the older worker's income and legal recovery. Such maximization is critical to the older client who becomes disabled as he is concluding his normal working years.