Whether you’ve applied for a job with a current disability or you’ve been working for an employer for a period of time and have developed a disability, it’s important to understand what you are entitled to in terms of benefits. It’s equally important to understand the accommodations your employer is obligated to provide that will allow you to continue working, if it is feasible.
In the event you discover your rights are being violated, a Charleston disability lawyer can help.
If you’re being discriminated against at work because of your disability, or you’re struggling to get your employer to approve disability benefits or accommodations, DiPiero Simmons McGinley & Bastress, PLLC can help.
We’re a team of experienced Charleston disability attorneys who are dedicated to helping hardworking West Virginians when they need it most.
How Can a Charleston Disability Attorney Help You?
The SSDI program started in 1957 and was designed to help workers who became disabled and unable to work. It also provides benefits to spouses and children of disabled workers. According to the Social Security Administration, around 8.3 million Americans receive SSDI benefits. Although this is a good plan in principle, it is not without its flaws.
Applicants for Social Security Disability Insurance face intense scrutiny. That is why, by some estimates, over 70% of initial applicants for SSDI are rejected, and often those rejections are for minor application errors.
The problem is that even with one error, an application must be rejected. At that point, you can file for a Request for Reconsideration, but you might not always know the original mistakes and could make them all over again. That is why it is helpful to retain the services of an experienced Charleston disability lawyer like DiPiero Simmons McGinley & Bastress, PLLC, to help with the process from the start.
This is how our firm can help:
Initial Application Assistance
One of the most common errors on a SSDI application is insufficient medical evidence that supports your disability claim. Our attorneys can ensure that your claim is accurate based on the information you provide. We’ll also help identify the proper medical documentation you need to back up your claim.
Communication with the Social Security Administration
Recent cuts in the Social Security Administration (SSA) have made speaking to a representative extremely difficult and challenging. We can step in and handle all interactions with the SSA and make sure all the filing deadlines are met. Our goal is to reduce the risk of rejection with the first application.
Preparing for Appeals
If your claim has already been denied, we can step in and provide guidance and representation at a hearing before an administrative law judge. We will be at your side, representing you at reconsideration hearings and before an administrative law judge (ALJ). Our experienced attorneys will gather expert testimony, present compelling evidence, and advocate for your rights.
Collecting Medical and Vocational Evidence
You need to fortify your disability claim with substantial evidence. We’ll be able to work closely with your doctors and vocational therapists to collect the relevant information you need for your claim.
Above all else, we can provide support and guidance through the entire process. We’ll be your advocate, and that can bring a lot of peace of mind.
What Is the Americans with Disabilities Act?
There are state and federal laws that protect individuals from disability discrimination. Federally, the Americans with Disabilities Act of 1990 makes it unlawful to discriminate against an employee because of a disability. Job discrimination is illegal if practiced by private employers, state and local governments, employment agencies, labor organizations, and labor-management committees.
When you apply for a job, an employer is not allowed to ask you if you are disabled or about the nature or severity of your disability. Nor can they require a medical examination prior to offering you a job.
They can, however, ask if you can perform the duties of the job with or without reasonable accommodations and make you a conditional offer based on passing a required medical examination—assuming all other employees entering that job category have to take the examination as well.
If you’re injured on the job, disability insurance pays wage replacement benefits when you are unable to work due to non-job-related injuries or illnesses. In the event you are injured on the job, you would be eligible for workers’ compensation benefits. An experienced Charleston disability lawyer will help you file that claim.
What Are the Medical Requirements to Qualify for Social Security Disability Insurance?
The Social Security Administration (SSA) is the federal agency tasked with determining who is eligible for SSDI benefits. One trip to the website, and it is understandable to be overwhelmed. Having a particular disability does not always mean automatic approval. As the applicant, you must meet certain qualifications and provide proof that includes detailed medical records.
Here are the factors that the SSA will examine for each applicant:
- Duration of the medical condition
- Current job and salary
- Severity of disability or condition
- Possibility of performing the same or similar work
- Ability to perform work-related activities
- Results of medical evaluations and treatment plan
- Confirmation that the disability is on the SSA’s list of qualifying impairments
Although the qualifications and applications are the same, each applicant is handled individually by the SSA. That is why it is vital to make sure your application is as strong as possible.
What Are the Determinations for Social Security and Disability?
The process of determining whether or not disability benefits are owed to an employee is rather complex. That’s why it’s best to work with an employment law lawyer who will have the experience and resources needed to ensure your claim is successful. When you apply for disability benefits, a case is opened and forwarded to the Disability Rehabilitation Service. There, they will decide whether your situation meets the medical requirements of disability.
According to the rules of Social Security, eligibility is determined when a person is unable to perform any work for at least 12 months due to physical, mental, or combined physical and mental impairment.
It’s important to note that Social Security pays for total disability, which implies an employee is unable to earn more than 80% of their pre-disability earnings. Their available coverage is based on two different plans.
- Plan one includes 50% of the first $6,000 of your monthly pre-disability earnings, with a maximum monthly benefit of $3,000.
- Plan two is 70% of the first $8,571 of your monthly pre-disability earnings, with a maximum monthly benefit of $6,000.
What Is Short-term Disability?
If your disability is temporary or partial, the Social Security program assumes that working families have access to other resources to provide support during those times—like workers’ compensation, insurance, savings, and investments.
West Virginia considers an employee short-term disabled when they are unable to earn more than 60% of their pre-disability earnings. Weekly benefits provided are 70% of the previous earnings.
In the event an applicant is found 25% disabled, their claim would be handled under the rules for workers’ compensation or veterans’ benefits—depending on the circumstances. If you are eligible for disability benefits, Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) may be available.
The former pays benefits to you and certain family members if you’ve worked long enough and paid Social Security taxes, while the latter pays benefits to children and adults who have limited income and resources.
A significant number of claims for disability benefits are denied. If your claim is denied, you have the right to appeal the decision. You’ll want to work with a skilled legal representative through this process, which will increase your chances of receiving benefits.
Frequently Asked Questions About Disability Benefits
If you’ve become disabled and your ability to work has been impacted, Social Security Disability Insurance can be your lifeline to financial stability. That is why it is vital to get the right information you need to move forward with the application process.
The support provided by DiPiero Simmons McGinley & Bastress, PLLC begins with the answers to the following frequently asked questions:
How long will the application process take?
The SSA estimates that an SSDI application can take anywhere from 6 to 8 months to process. If that application is denied and you file an appeal, the process can extend to over a year. This is why it’s important to get the filing process started as quickly as possible.
Is there a waiting period for receiving benefits?
You will have to wait five months before receiving SSDI payments. That time starts on the Established Onset Date (EOD). Even if you filed an application the day after you were injured and it was instantly approved (highly unlikely), you would still have to wait five months before you would receive your first benefits.
Can I receive back payments?
You may be entitled to back payments, but they must take into account the five-month waiting period. For instance, if your EOD was January, your five-month waiting period would be up in May; however, you might not receive approval until November. You could receive a lump sum payment for the months in between the EOD waiting period and the approval date.
Is there a deadline for filing?
If you are eligible, you can file at any time for SSDI. You need to start from the basis of having a physical or mental condition that’s expected to last a year or longer. That means you don’t have to wait a year after becoming disabled, but you have to prove that you wouldn’t be able to work for that year.
Can I work while I’m waiting for SSDI?
You can work while waiting for SSDI benefits to be approved, but it gets complicated. Your earnings will be subject to the Substantial Gainful Activity (SGA) limit. In other words, you can’t make more than the limit, which is around $1,620 per month.
What To Do If You’re Not Receiving Benefits?
Whether your employer is not providing reasonable accommodations, or they’ve ignored or denied your request for filing for disability compensation, you can start by putting your request in writing, addressing your manager and the human resources department, and specifically mentioning the ADA. Explain your legal rights and see how your employer responds.
In the event your rights are continually violated, it’s time to seek legal assistance. A skilled Charleston disability attorney can look into the situation and determine what you are entitled to. Depending on your situation, you may pursue a disability discrimination lawsuit.
If you pursue litigation, you will file a complaint with the ADA. They will review your complaint and inform you of the actions they decide to take. This could include requesting additional information, referring your complaint to the ADA Mediation Program, the United States Attorney’s Office, or another federal agency, investigating your complaint, or considering it for possible litigation by the Department of Justice.
Work With DiPiero Simmons McGinley & Bastress, PLLC
Employers have a responsibility to their employees to provide reasonable accommodations and benefits in the event of a disability. When an employee’s rights are violated, legal action is available to them. Going up against an employer can seem intimidating, which is why it’s important to have a reliable legal representative by your side.
To learn more about filing a disability claim, get in touch with a Charleston disability attorney from our law firm. We’ll review your situation and help you determine how best to proceed based on your unique circumstances.
Contact us today to learn more.
