# Understanding Social Security Disability Offsets: Aiding Your Clients and Avoiding Malpractice

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4 social security offset and in most circumstances completely eliminates the potential offset. Amortization of the Lump Sum Three factors determine the correct amortization of the lump sum: The lump sum amount after deduction for allowable excludable expenses The beginning of the amortization period The claimant s life expectancy The beginning of the amortization period is the day after the last payment of temporary disability payments was made. If no temporary disability payments were made, the amortization period begins on the date of the injury or the last date the claimant worked in the industry (POMS DI ). The life expectancy can be determined by referring to life expectancy tables. The Centers for Disease Control has published these tables, which can be referenced as the National Vital Statistics Report, Vol. 58, No. 21, June 28, The claimant in the example at the beginning of this article turned 55 prior to the date of his last temporary disability payment of \$400 in July of His life expectancy is 24.7 years. His last temporary disability payment of \$400 occurred in July of 2011, when he was 55. His lump-sum payment, received in July of 2012, was \$100,000. Following is an analysis of the calculations for this claimant in determining amortization of the lump sum: 1. The amortization period begins at age Life expectancy is 24.7 years, or months ( = 296.4). 4. The monthly payment amortized over the life expectancy is \$ (\$100, = \$337.38). We know that 80 percent of the average current earning is \$2,000. Instead of using the permanent disability rate of \$230 per week, or \$989 per month, as an offset, we are able to use the much more favorable weekly amount of \$ Instead of our initial calculation of \$2,000 \$989 = \$1,011, we are now permitted to use the favorable calculation of \$2, = \$1,662. The latter amount is what the claimant would be permitted to receive in social security benefits and still remain under the 80 percent cap. Since the claimant s social security benefit rate is \$1,500 per month, he is under the 80 percent cap and there is no offset. By including language in the C&R amortizing the lump sum over his life expectancy, we have legally eliminated the social security offset and increased the claimant s combined state and federal benefits by \$5,868 per year, for a total of \$46,944 over the life of the C&R. Anthony J. DeLellis is the principal owner of DeLellis and Associates, a San Diego law firm with offices in San Diego, Riverside, and Imperial counties. The firm practices social security disability, workers compensation, and county disability retirement law. He can be reached at 2. The lump sum after excludable expenses is \$100,000. Filing/Activation Fees, and a Warning to Defendants JON C. BRISSMAN, ESQ. Colton, California Legislation effective January 1, 2013, requires medical treatment providers to pay a \$150 lien filing fee for a new lien. It also requires medical and certain other providers who filed liens prior to 2013 to pay a \$100 lien activation fee at the earliest of (1) filing a Declaration of Readiness to Proceed (DOR), (2) before attending a lien conference, or (3) December 31, Labor Code sections and ; 8 CCR section The consequence of failure to submit proof of payment when filing a DOR is that the DOR will be rejected and not processed, and the consequence of failure to pay the activation fee by the time of a lien conference or January 1, 2014, whichever is earlier, is dismissal of the lien with prejudice. While judges have information available to them, via EAMS and the EAMS public access website, documenting whether or not the lien filing fee or lien activation fee has been paid, Labor Code section (a)(4) specifically states that lien claimants that did not file the DOR must submit at the lien conference proof of payment of the activation fees. Do not assume that a judge will take the time to look in EAMS 4 WORKERS COMPENSATION

5 to see whether the activation fee has been paid. It would be prudent, to avoid any confusion or misunderstanding, for all lien claimants, including the one that filed the DOR, to have proof of payment of the fee at the time of the lien conference. The WCAB has proposed regulations that are currently pending in the regular rulemaking process and not yet in effect that will expand the types of appearances at which a legacy (pre-2013) lien claimant must pay the activation fee. For now, an activation or filing fee is not required for appearances at status conferences, mandatory settlement conferences, pretrial conferences, expedited hearings, rating MSCs, trials on casein-chief issues, or at lien trials when the lien conference occurred prior to Practitioners need to be aware that if a lien claimant is a party as defined by 8 CCR section 10301(x) (3), pursuant to 8 CCR section (a) and (c), any type of hearing that is set is to be construed as a lien conference, before which payment of the activation fee will be required. Labor Code section specifies a procedure for a lien claimant to recover the activation or filing fee from defendant. Prior to payment of the fee, the lien claimant must make a dollar-specific written demand, and defendant has 20 days to respond in writing. If settlement does not result and the lien claimant still wishes to pursue its lien balance, the lien claimant must pay the activation or filing fee. Certainly this must be done on legacy liens before filing a DOR to have the lien adjudicated before the WCAB or before December 31, If the final determination of the WCAB is that defendant owes an amount equal to or greater than the demanded amount, defendant is liable for reimbursement of the amount plus the fee. Unfortunately, the drafters of the legislation did not specify any mechanism for lien claimants to recover the fee when they receive a notice of hearing for a lien conference when they did not file the DOR. It is likely that regulations will be proposed to fill the gaps. Until then, lien claimants should make written settlement demands as soon as they receive a notice of hearing for a lien conference (or any type of hearing) and specifically request the WCAB to award reimbursement of the fee under Labor Code section 5811 if the demanded amount is found reasonable. The rationale of the legislation is to encourage parties to resolve outstanding liens before the jurisdiction of the WCAB needs to be invoked. However, several claims adjusters and defense attorneys are demanding that lien claimants produce proof of payment of the filing or activation fee as a precondition to lien negotiation. The tactic is contrary to the spirit of the law, which mandates that lien claimants attempt negotiation of the liens prior to filing DORs or appearing at lien conferences. On legacy liens, payment of the activation fee is not required until a lien claimant files the DOR or, if the lien claimant did not file the DOR, prior to appearance at a lien conference. Labor Code section (a)(4). For services provided in 2013 and beyond, lien filing is not required to initiate settlement discussions. Both defendants and lien claimants are required to engage in good-faith negotiations. Filing a DOR requires a statement under penalty of perjury of the specific, genuine, good faith efforts to resolve the dispute(s). Failure to comply results in taxing the time and resources of the WCAB to resolve lien disputes and circumvents the assumed purpose of the law, which is to encourage lien resolution prior to setting hearings on the WCAB calendars. Workers compensation judges will have ample justification to grant a petition filed by a lien claimant requesting sanctions, attorney fees, and costs for bad-faith actions or tactics when defendant insists on proof of activation- or filing-fee payment before negotiating. Observe that non-attorney lien claimants may request and be awarded attorney fees: under Labor Code sections 4907 and 5813 and 8 CCR section 10561, anyone who appears at the WCAB is subject to an assessment or award of attorney fees (although someone who is not a member of the State Bar likely will be awarded a lesser hourly fee). Note that 8 CCR section 10561(e) specifically states: Notwithstanding any other provision of these rules, for purposes of this rule and Labor Code section 5813: (1) a lien claimant may be deemed a party at any stage of the proceedings before the Workers Compensation Appeals Board; and (2) an attorney includes a lay representative of a party or lien claimant. Prudent lien claimants that find themselves in the position in which claims adjusters or defense attorneys are refusing to negotiate liens prior to proof of payment of a lien activation or filing fee will be collecting or documenting proof of defendants refusal to negotiate and may soon be filing petitions on the issue. Since lien claimants are considered a party at any stage of the proceedings for purposes of Labor Code section 5813 and 8 CCR section 10561, there is nothing to prevent them from filing such a petition before paying an activation or filing fee. To capture the attention of the judges, lien claimants should clearly reference 8 CCR section 10561(e) in their pleadings. It may take a few well-publicized cases where sanctions, costs, and attorney fees were assessed, or maybe a DWC Newsline press release by the Administrative Director, to extinguish the tactic of using the activation or filing fee as a precondition to lien negotiation. Defendants would be well advised to abandon the tactic now. Jon C. Brissman is an attorney based in Colton, California, whose practice represents lien claimants exclusively. WORKERS COMPENSATION 5

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