In February of 2011, YB, a 30 year carpenter at a lumber yard, reinjured his lumbar spine while lifting a 50 pound bucket filled with cement.  He had initially injured his back in 2003, resulting in an L5-S1 micro-diskectomy for sciatica. Following surgery, he made a good recovery, and soon returned to his regular work duties, described by the Dictionary of Occupational Titles as falling within the Heavy category of work.

After the February occurrence, YB was seen by his former surgeon.  MRI studies failed to show a disc problem.  He was taken off work, prescribed medication and given injections.  This regimen failed to alleviate his pain and disability and a year later he underwent another surgery, this time a decompression of the right sciatic nerve at the piriformis fossa, a somewhat unusual procedure. 

The surgery was only partial successful, and by June, 2012, the surgeon sent YB for a Functional Capacity Evaluation, to determine his capacity to work.  The findings of this exam concluded that YB was capable of performing MEDIUM-HEAVY work, but not his former job as a carpenter which required him to regularly lift 50 pounds. His surgeon placed him on a permanent 30 pound lifting restriction, which the lumber yard refused to accommodate.  

When an employer refuses to accommodate light duty restrictions, the injured employee is entitled to receive ongoing Temporary Total Disability (TTD) Benefits.

The larger question that remained was whether there was actual employment for YB given than he had worked his entire adult life for the lumber yard, he did not have a high school education, he lacked computer skills, he remained under permanent work restrictions, he had not worked in several years, and he was now 62 years old. To resolve this question, Lipkin & Higgins hired a vocational counselor skilled in finding jobs for injured workers.  

The counselor's conclusion: there was no stable job market available for YB.  The Workers’ Compensation insurer retained its own vocational counselor, who concluded that there were numerous jobs available to YB. At the evidence deposition of this counselor just before trial was to begin, she admitted on cross examination that she had not personally contacted any employer to determine whether YB’s qualifications matched the job opening, and that her estimation that work was available for YB was based simply on looking at computerized job listings.  

Rather than proceed to trial, the Workers’ Compensation insurer agreed to settle YB’s claim for $273,000.  Under the law, an injured worker may receive both Workers’ Compensation and Social Security Disability Income benefits.  To receive both, a person MUST notify Social Security of his/her pending Workers’ Compensation case. There will be a slight offset (not dollar for dollar) of Social Security Disability Income (SSDI) benefits in light of Workers’ Compensation, but the combination of the two will exceed that of either, alone.  The Workers’ Compensation settlement contract has to employ certain language so as not to disrupt continuation of SSDI benefits.  

Being aware of how the law of Workers Compensation and Social Security Disability Income work together is essential for a proper outcome of your case. Doing so will optimize your income to provide for your long term economic needs. If you have any questions, please contact the workers compensation attorneys of Lipkin & Higgins for assistance.