If you are unable to work a full time job because of injuries or a disease, you most likely meet Social Security’s definition of disability 1 . You may be wondering, therefore, if you should go ahead and start your Social Security disability case before your claim for damages in state court has been resolved.
Usually the answer is “yes,” you should not wait to file for Social Security disability, but there are exceptions and if you do decide to file, I strongly recommend that you speak to both your personal injury lawyer and a Social Security disability lawyer before you file. Here are some of the considerations you should raise with counsel:
Time is Not on Your Side
Perhaps the most compelling reason to start your Social Security application has to do with time. First, your civil claim for damages and a potential Social Security claim are not likely to be resolved quickly. If you are not working and have no money coming in, your need for cash flow may be a good reason to file for Social Security.
While it is true that Social Security claims can take several years to be processed, some claims are approved quickly – within two to four months. For example, if you are experiencing musculoskeletal pain, your diagnosis may meet SSA’s musculoskeletal listing, which can result in a very fast approval. 2
Time is also not on your side when it comes to qualifying for SSDI, which is the type of Social Security disability that pays you a percentage of what you have paid in to the system from payroll taxes. In order to qualify for SSDI, your work history must show sufficient credits paid in within the 10 years prior to the onset date of your disability. If you wait too long, your insured status runs out and you might only qualify for SSI. SSI pays a smaller monthly benefits and, most importantly for a personal injury claimant, your settlement will cause a long term offset of your SSI. This means that you recover less money. 3
So, purely from a time standpoint, it usually does not make sense to delay your Social Security disability filing.
Reasons Not to File for Social Security While Also Pursuing a Personal Injury Claim
Before filing for Social Security disability, you should talk to your lawyers about something called a Medicare Set Aside (abbreviated as MSA). In cases where the MSA rules apply, the at fault party’s insurance company is required to set aside a portion of your settlement to cover future medical costs. The federal government requires MSAs in certain types of cases in order to avoid situations where injured claimants shift the entire burden of future medical costs to Medicare when there is another source of money that should share that burden.
MSAs are often required in workers’ compensation cases. Many other types of personal injury cases do not require an MSA but this area of the law is very fluid 4 so you should raise this issue with your lawyer before filing for Social Security.
You should also discuss with your personal injury lawyer the implications of a finding of disabled from Social Security. Will this finding and your award of benefits be transmitted to the jury? Will your status as a Social Security recipient help or hurt your negotiating status?
Finally, keep in mind that if you file for Social Security, you can dismiss your claim but you cannot purge the system of the record of your filing. In cases where it makes a difference whether or not you have filed for SSDI or SSI, your communication with SSA about filing may trigger whatever consequences apply. Again, don’t take any action with regard to Social Security without first talking to your lawyer – we are here to help you!
As your personal injury lawyer will advise you, no award of money will be enough to restore you to full health or your pre-accident status. However, the civil justice system only has money to offer so your lawyer can only advise you about tactics that will maximize your financial recovery and help you life a life filled with dignity and security.
- Social Security defines disability as the inability to engage in substantial gainful activity because of a medically determinable condition or conditions that have lasted or are expected to last 12 consecutive months or result in death. [1. See this page on my website for more about SSA’s definition of disability ↩
- Depending on the type of injury you have incurred, along with any pre-existing conditions you may have, other listings may apply as well. Closed head injuries are another common problem in serious accidents. You can learn more about Social Security’s listings here. ↩
- Click here to learn more about the differences between SSDI and SSI. ↩
- See this recent article about possible future changes to MSA law and personal injury claims. ↩