LEGAL   REPORT 

By: Milan Rada, Esq. with John Hewson, Esq.

As you are well aware, there are a number of disability benefits that exist to protect members of law enforcement when they experience a work related, line of duty injury.  However, one of the benefits that we typically discuss less frequently is the Social Security Disability benefit. Social Security Disability benefits can be another lucrative disability benefit that police officers with injuries may be eligible for in addition to a disability pension.  However, as with anything in life, a different system means a different set of rules and standards. Of course, Social Security is no different.

In general, we all pay Social Security taxes throughout our working careers.  It is essentially government mandated insurance to cover us financially once a person reaches retirement age or becomes disabled within the meaning of the Social Security Law.  One of the misconceptions about Social Security is that it is a tax when, in fact, it really is insurance for both retirement and disability. Further, the Social Security system also covers disabled children, disabled widows, and adults with disabilities since childhood.  The Social Security Disability program provides two main benefits, a monthly check and medical coverage in the form of Medicare.

The monthly check Social Security provides is the most commonplace understanding of the Social Security system.  For disability purposes, this is no different. Social Security provides a monthly monetary amount to a person found to be disabled that is based purely upon what that claimant has paid into Social Security during his or her lifetime.  Typically, these amounts vary from as low as $500 per month to as high as about $3000 per month.  Given the salaries of police officers, the typical applicant in our office receives between $2800 to $2950 per month.  In addition, Social Security will also provide auxiliary benefits for children under the age of 18. This benefit is in addition to the monthly benefit the disabled member is already receiving, and the auxiliary benefit may be as high as one-half of the member’s benefit.  

Of course, the government attempts to prevent Social Security Disability benefits from being a windfall or appearing as though the injured worker just won the lottery, so these benefits may come with some offsets towards other benefits, such as any Workers’ Compensation payments being received.  However, the earnings of police officers typically are high enough so no offsets ever exist. Plus, there is no offset at all between the Accidental Disability Retirement benefits (3/4 pension) or Performance of Duty Disability Retirement Benefits (50% pension) and Social Security Disability Insurance Benefits.

In addition to the monetary benefits that Social Security Disability provides, an approval also guarantees medical coverage for the disabled worker in the form of Medicare.  If a member is approved, that member becomes eligible for Medicare benefits 29 months from the date of the onset of disability. Though not as important for Nassau County police officers with medical benefits post-retirement anyway, these medical benefits are often times one of the major reasons that people apply for Social Security Disability benefits in order to continue to receive medical care for their conditions.

Being approved for the benefit is always the goal of any claim that we file, but there are distinct differences between the development and standard for a Social Security Disability case as opposed to a disability retirement benefit from the New York State Police and Fire Retirement System.  Understanding and appreciating these differences is often the most difficult part of the explanation that we provide to clients because qualifying for benefits is very different from qualifying for Workers’ Compensation benefits and disability retirement benefits from the NYS Police and Fire Retirement System. Add in the stress of being injured along with the agency making it difficult to obtain these benefits and you wind up with a an often confused and frustrated client.  

As you recall from past Legal Reports, when it comes to a disability pension claim for an accident or an incident, the Retirement System is evaluating an applicant as to whether or not he or she is permanently disabled from the full duties of a police officer.  Therefore, the injuries suffered and how they affect the activities and duties required by a full duty patrol officer are crucial to the determination. A severe injury to an officer’s trigger finger might never allow that officer to safely discharge his or her weapon in a high-risk police scenario, and thus, that officer could be rendered permanently disabled from the full duties of the job simply on that injury alone.  The applicant’s injury and impairment matters most when it comes to that applicant’s ability to do the job, regardless of age, years on the job, or education level. The Social Security system, as you might have guessed, is entirely different.

Social Security Disability is predicated mostly upon an analysis of the employability of the applicant rather than the impairments alone.  Of course, the impairments play a crucial role in an applicant’s ability to work in the national economy, but the Social Security Law and Regulations rely heavily upon the age, education, and past relevant work of the applicant as well.  Most important to our police officers is that Social Security is not concerned only with the inability to perform the full duties of a police officer but the ability to perform any other work in the national economy as well.

For instance, that same police officer from the example above might not be able to fire a weapon safely and effectively due to his trigger finger injury.  If that same officer is 35 years old and has a college education, Social Security may acknowledge his inability to be a full duty police officer but find that this officer could perform other work activities within the economy.  In fact, an officer on restricted assignment limited to only performing desk duties could win a disability pension but at the same time be denied his Social Security Disability benefits because he is clearly capable of performing restricted assignment.  The devil is in the details and knowing which analysis and medical opinions apply to which benefit is crucial to succeeding in either claim.  

Shockingly, we see a large number of members of the Department who fail to even evaluate their ability to receive these benefits when they retire.  In all likelihood, it comes down to a few common misconceptions that the person has. One such common misconception is that one needs to be receiving a disability pension in order to file or obtain Social Security Disability Benefits.  This is simply untrue. As long as a person is under his or her full retirement age for Social Security purposes (typically, 66 or 67) and that person is incapable of performing any work that exists in the national economy in any capacity, he or she may be able to obtain benefits.  If the combination of age, education level, past relevant work experience and impairments would render a person unemployable, he or she should apply. The only requirement is that a member must have obtained enough recent quarters of coverage in the Social Security system in order to file.  Typically, this requires a member to file within five years of the last time he or she last worked. Also, from a legal fee point of view, there is no downside to the applicant because fees are contingent upon the applicant being approved for benefits, and the fee must be approved by the Social Security Administration.  This fee does not exceed 25% of the past benefits due to an applicant. Also, usually the only out of pocket expenses the applicant may incur would be any costs associated with medical development of the file. Thus, our advice has always been that any member of the force that is retiring should explore their right to apply for Social Security disability benefits, even if they are retiring on a service related pension for working 20 years or more in the Department.  The only two exceptions would be if the member is over 66 or 67, or that member plans on returning to work in some other capacity after they retire. Beyond those exceptions, each member should be exploring their right to the money they have already paid into the system!

If you have any questions regarding this article or any other disability related questions, please do not hesitate to contact our office anytime at 516-941-4403 or mrada@fbrlaw.com.  We are happy to answer any questions regarding not only your own claims, but we also are proud to assist on the claims or issues involving family, friends, or officers too shy to call on their own behalf. We also invite officers to refer colleagues from other departments who may have questions or concerns regarding any disability matters. Lastly, just an FYI – don’t forget Valentines’ Day! 

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