What is a Social Security "Disability?"

A "disability," as far as the receipt of social security benefits is concerned, is not defined the same as for other programs. Social security disability benefits are only paid for total disability; the complete inability to work is the benchmark. At its essence, a person is disabled under the Social Security Act if he is unable to engage in any substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or is expected to last for twelve months or that results or is expected to result in death. A disability can result from either a physical or mental impairment, or a combination of impairments.

Earning Capacity

The extent to which an individual is "disabled" by workers' compensation standards requires an examination of the individual's earning capacity after the injury in relation to his earnings prior to being injured. Even if the individual realizes a reduction in his earnings after the injury, he must still prove a causal link between the earnings reduction and his injury. Failure to do so will result in a denial of benefits. If the individual achieves earnings after his injury is sustained, there is a presumption that he has an "earning capacity" in keeping with such earnings. However, the presumption can be rebutted by evidence that the individual, in fact, has no earning capacity or that the post-injury earnings he received are not an accurate, fair, or reasonable measure of the individual's earning capacity.

Subrogation

Subrogation is a tool used by employers or their workers' compensation insurance carriers to seek reimbursement from a third party for the amounts paid to an injured worker. The employer's position is that the third party who caused the employee's injury should rightfully bear the burden of compensating the injured worker. In various forms, each state provides for subrogation. Some states have instituted no limits on an employer's right to seek reimbursement, others allow both the employer and the employee to maintain actions against the third party, and still others give either the employer or the employee priority in filing an action against the third party.

Impairment Meets or Equals Listing of Impairments for Social Security Disability Evaluation

In the sequential evaluation of disability by the Social Security Administration (SSA), a major step is whether the individual has a condition that meets the twelve-month duration requirement and that is represented on the Social Security Administration's Listing of Impairments (LOI) or equal to a listed impairment. The LOI is divided into two parts. One part applies to individuals over age eighteen and one part is applicable to individuals under eighteen.

Statutory Defense of Wilful Misconduct

Approximately one-third of the states include the defense of "wilful misconduct" in their respective workers' compensation statutes. Under this defense, employers' will claim that the employee is ineligible to receive, or is only entitled to a reduced amount of, workers' compensation benefits because his deliberate action in, for example, violating a safety rule or committing an aggravated assault, is what caused his injury.