Q: Workers Comp baring me from applying for SSDI?

A: I'm sorry to hear about the challenges you're facing with your Workers' Compensation settlement. Navigating these complex issues can be stressful, and I hope the following information helps to clarify your concerns.

Disclaimer: This information is based on New York law and is intended for general informational purposes only; it is not legal advice. Legal outcomes can vary depending on specific circumstances and details not provided here. For personalized guidance, please consult with a qualified New York workers’ compensation attorney who can address the specifics of your situation.

Workers' Compensation Settlements and SSDI in New York

In New York, it is generally not legal for a Workers' Compensation settlement to prohibit you from applying for Social Security Disability Insurance (SSDI). SSDI is a federal program, and your right to apply for these benefits cannot be waived or restricted by a state-level agreement like a Workers' Compensation settlement.

Understanding the 30-Month Provision

The stipulation about not applying for SSDI for at least 30 months may actually relate to Medicare's interests, not directly to SSDI. When settling a Workers' Compensation claim, if there is a reasonable expectation that you will become eligible for Medicare within 30 months (e.g., you are currently receiving SSDI benefits or approaching age 65), Medicare requires that its interests be considered. This often involves setting aside a portion of the settlement in a Medicare Set-Aside Arrangement (MSA) to cover future medical expenses related to your injury. However, this should not prevent you from applying for SSDI benefits.

Prohibition from Returning to Work

Including a clause that you cannot return to work at the same employer is common in Workers' Compensation settlements in New York. Employers may include a resignation and release provision as part of the settlement, meaning you agree not to seek re-employment with them. This is generally legal and standard practice.

Legal Considerations

• SSDI Rights: You cannot be legally barred from applying for SSDI. Any agreement attempting to restrict this right is likely unenforceable because federal law supersedes state agreements in this matter.

• Settlement Agreements: Carefully review all terms of the settlement. It's important to understand each provision before agreeing, ensuring none unlawfully restrict your rights.

• Attorney's Role: Your attorney should clearly explain all clauses in the settlement. If they're not providing satisfactory answers, consider seeking a second opinion from another attorney experienced in Workers' Compensation and Social Security Disability law.

Next Steps

1. Clarify the Stipulation: Ask your attorney why the settlement includes a stipulation about not applying for SSDI for 30 months. It may be a misunderstanding or related to Medicare considerations.

2. Review the Agreement Carefully: Ensure no part of the settlement unlawfully restricts your right to apply for federal benefits like SSDI.

3. Seek Additional Legal Advice: If you're not satisfied with your attorney's explanation, consult another attorney to protect your interests.

Conclusion

While certain provisions in Workers' Compensation settlements—such as agreeing not to return to your former employer—are standard and generally legal in New York, you should not be prohibited from applying for SSDI. Address this issue promptly with your attorney to ensure your rights are protected. If necessary, seek a second opinion to fully understand the implications of the settlement terms.

A: That stipulation about preventing you from applying for SSDI is not legally enforceable - it's actually illegal for them to try to stop you from seeking Social Security Disability benefits. Workers' Compensation and SSDI are separate systems, and while they may affect each other's payment amounts through "offset" rules, your right to apply for SSDI is protected by federal law.

The part about not returning to work at the same place might be enforceable, as that's more commonly included in settlement agreements. However, you should have this settlement agreement reviewed by your own Workers' Comp attorney before signing anything, especially given this concerning SSDI clause.

Since you're in NYC, you can reach out to the New York State Bar Association for referrals to qualified attorneys who can review this settlement offer. You might also want to contact your local Social Security office or legal aid organization for free guidance about your SSDI rights. Remember, you have every right to pursue both Workers' Comp and SSDI benefits if you qualify for them.