| Earning Capacity |
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| 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.More... |
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| What is a Social Security "Disability?" |
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| 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.More... |
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| Social Security Disability Payments and Representative Payees |
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| When a Social Security disability beneficiary is a minor child or legally incompetent adult, the Social Security Administration (SSA) will select a representative payee to manage the beneficiary's disability payments. A representative payee, who can be either an individual or an organization, is charged with the responsibility of disbursing the funds for the beneficiary's present needs and saving any remaining funds for the future. Payment of the beneficiary's "needs" should include food, clothing, shelter, utilities, dental and medical care, and personal comfort items.More... |
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| Subrogation |
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| 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.More... |
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| Third Party Defenses to Action |
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| When a third party is sued for his role in causing an employee's injury, he may present various defenses. One such defense is the contributory negligence of the employee or his employer. If the employee shared in causing his injury, the contributory negligence defense could be wielded by the third party and be just as viable as with any other negligence action. When the employer is the employee's subrogee, the defense is as powerful against the employer. Further, in those jurisdictions adhering to the comparative negligence rule, the employer's recovery would be reduced by the amount of fault allocated to the employee. When an employer negligently contributes to the employee's recovery, it is generally held that the contributory negligent defense is ineffectual; as the employer is stepping into the shoes of the employees, its own negligence has no bearing on the "employee's" cause of action.More... |
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