What happens to my workers compensation benefits even if I am receiving social security disability, pension or unemployment benefits?

September 21, 2021 in
Injured at Work Can I Sue | West Palm Beach Workers Compensation Lawyer | LaBovick Law Group of South Florida

There are two types of benefits that you may be entitled to if you have a compensable workers’ compensation claim in Florida.  The first one is medical treatment and related expenses.
The second one is compensation for lost earnings, often referred to as indemnity benefits.

Indemnity benefits vary depending on the nature of your disability and work status.  This article will not go into the details surrounding each type of indemnity benefit.  Generally, if you are considered totally disabled, your weekly benefit rate will be 2/3rd’s of what you were making at the time of the accident, (your “average weekly wage”).  If you are less than totally disabled, then you are considered partially disabled and your weekly benefit rate will be 80% of your average weekly wage.  But, your weekly rate cannot be greater than 2/3rd’s of your average weekly wage.  If you have reached a point in your care of maximum medical improvement, or permanent disability, then you may be entitled to compensation for future loss of earnings with an award for a set number of weeks.  The weekly rate for this type of award is 75% of your total disability rate.

The legislature enacted laws limiting your weekly indemnity benefits if you are receiving benefits from other or “collateral sources” such as social security disability, pension, unemployment, or others.  The purpose behind these offset rules is to prevent an injured employee from reaping a windfall from the work accident, and prevent the employee from being compensated more after than before the accident.

If you are receiving unemployment benefits, then you will not be entitled to ANY workers’ compensation indemnity benefits while you are considered totally disabled.  This is because in order to receive unemployment benefits an individual must be able to and available to work and must perform a job search.  If you are totally disabled according to workers’ compensation, then you would not be able to work or perform a job search. Therefore, it would be incompatible to receive unemployment benefits while receiving total disability benefits under workers’ compensation.

However, if an employee is entitled to partial disability benefits, any unemployment benefits shall be primary and the partial benefits shall be supplemental only.  In other words, workers’ compensation benefits will be reduced so that the sum of the two benefits does not exceed the amount of indemnity which would otherwise be payable.  Therefore, you will only get the amount that you would have gotten through workers’ compensation had you not been receiving unemployment benefits.  So, if the weekly unemployment amount is greater to or equal to the amount you are entitled to partial disability under workers’ compensation, then the workers’ compensation carrier does not have to pay you anything because there is no entitlement to partial disability benefits.

Under the collateral source rule, often referred to as the “Grice offset”, the combined total of workers’ compensation, disability retirement, and social security disability benefits cannot exceed one’s average weekly wage. So, unless you have a contractual agreement that says otherwise, you may not receive benefits from your employer and other collateral sources which, when totalled, exceed 100% of your average weekly wage. Any excess benefits over the amount of the average weekly wage will be offset or reduced by the workers’ compensation carrier.  Thus, an injured worker if receiving benefits from other sources besides workers’ compensation that exceed the average weekly wage, will receive no less than 100% of his or her average weekly wage in workers’ compensation benefits.

An example of what this calculation would look like is as follows:  Average weekly wage is $1000, SSD weekly benefits, $200, Pension weekly benefit, $600, workers’ compensation benefits, $666.  Adding the collateral source benefits and workers’ compensation benefits, 200 + 600 + 666 equals $1466.  The $1466 amount is over and above the average weekly wage of $1000.  We then subtract the average weekly wage from the total to get the excess, $1466-$1000= $466.  The carrier in this example would be able to offset the workers’ compensation payments by $466 weekly.  Since the weekly workers’ compensation benefits otherwise payable are $666, the carrier would now pay weekly benefits of $200 due to the Grice offset; and the injured worker would be receiving the equivalent of 100% of his or her average weekly wage.

It need be noted that federal law provides that when a claimant is receiving social security disability benefits an offset cannot be taken such that it decreases a claimant’s total benefits below 80% of the claimant’s average weekly wage, or 80% of the claimant’s average current earnings, whichever amount is greater.  Florida’s law is more lenient in that it allows for a claimant to receive up to 100% of the average weekly wage in instances where there are no current earnings.  But, if there are current earnings, and 80% of the average current earnings is greater than 100% of the average weekly wage, the federally required minimum applies.  Therefore, a claimant’s SSD benefit may be offset, but only to the extent, it does not reduce total benefits to less than 100% of the claimant’s monthly average weekly wage, or 80% of his or her monthly average current earnings, whichever is greater.

Social security benefits are converted to retirement benefits at age 62, so the offset for SSD would no longer apply after an injured worker reaches age 62.  The reduction does not apply to social security retirement benefits. The offset for SSD may not be taken until the employee has begun receiving such social security benefit payments

Based upon the rules concerning offsets, injured workers must comply with a request from the Workers’ Compensation Division or the carrier for authorization for social security disability benefits information or unemployment compensation information. The carrier does not have to make any payments to an injured worker who willfully fails or refuses to authorize the release of information.  So, a request for authorization/information should be readily complied with.

Is there an offset for social security disability-dependent benefits?  Yes, dependent benefits constitute benefits from a collateral source.  However, auxiliary benefits are those benefits received by widows and survivors for reasons unrelated to a disability.  For example, if an employee was a spouse or dependent of a deceased individual, the employee will receive social security benefits because of his or her status as a surviving widow or surviving dependent. These benefits are known as auxiliary benefits and are not being received as a result of a disability and therefore, cannot be used to offset the carrier’s liability.

Also, note that the offset only applies to an employee or dependents who are receiving social security disability benefits related to the workplace accident, and not for other conditions.

As demonstrated in this article, the rules pertaining to benefits are complex. If you have suffered a work-related injury, contact us at the LaBovick Law Group to see what benefits you may be entitled to.  We provide free consultations where we will review the facts of your case to determine the right course for you.  Call us today at (561) 625-8400 for your free evaluation.

 

 

 

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