Disability

Being injured on the job may not guarantee a full disability pension without a fight.

Newspapers often seize upon scandalous stories of policemen or firefighters who, while receiving a full disability pension, perform feats of physical strength, such as running a marathon. Less often do they focus on the struggles of those who, while injured on the job, must fight for years to get a disability pension approved.

An exception is a recent account of how retired NYPD Detective Sara Salerno of the Bronx has waged an eight-year battle against the Police Pension Fund and the City of New York, which have opposed her request at every turn.

Salerno had a 12-year career with the NYPD, making more than100 arrests while working in patrol, anti-crime and internal affairs. She tore her meniscus during training for a bicycle patrol at the 40th precinct in the Bronx.

In addition, according to court filings, she served at Ground Zero, responding to the attacks and working there for many days.Technically she was on restricted duty, so her name was not recorded in the roll call. The city's Law Department contests her claim that she was there and says she cannot show that her disabling respiratory ailments and immune system problems are connected to working at the WTC site. Her supervisors and fellow officers, however, have confirmed in writing that she was there.

The case is on appeal. Meanwhile Salerno receives a regular disability pension, which is 50 percent of her salary and is taxable. A full disability pension would mean 75 percent of her last salary, tax-free.

The case is a reminder that recovering one's rightful pension can be an obstacle course. Even with a strong claim, retirees with job-related injuries need a vigorous legal advocate in their corner to receive appropriate disability payments.

Is the number of social security disability fraud claims overestimated?

Rumors of Social Security Disability fraud have been greatly exaggerated. While there are cases of people scamming the system, fraud is not nearly as widespread as some would suggest.

There is a growing narrative that the solution to fraud is to make it more difficult for people to qualify for disability. Currently, however, it is not that easy to go on disability. In fact, about 60 percent of disability applicants are denied, primarily because they have not worked long enough. A person must have worked at least one quarter of his or her adult life and also have worked 5 of the last 10 years to qualify. There must also be bona fide medical reasons: a physical or mental illness severe enough that it will either last for 12 months or end in death.

And it's not as easy to fake a disability as some contend. While some physical disabilities like back problems and mental illness are not easy to see, this is not to say they are being faked. The main causes of disability are chronic physical disorders, and many psychiatric disorders are also debilitating.

Contrary to what some believe, disability claims are not skyrocketing. While the age group of those likely to go on disability is growing (50 to 64 years old), the actual percentage of workers on disability has only slightly increased since the year 2000. Moreover, older women are more likely to qualify for disability than in years past.

Despite the calls for more stringent requirements to qualify for disability, the U.S. already has more stringent requirements than most advanced economies. The real solution to disability fraud is to detect and prevent fraudulent claims. That being said, Congress has not adequately funded the Social Security Administration's fraud prevention unit.

The fact that a person entering the work force today has a one in three chance of dying or qualifying for disability before retirement age is reason enough to ensure that disability funds continue to be available to those who qualify. If you are suffering from a debilitating physical or mental illness, a qualified attorney can help you secure disability insurance.

What can I do if I was denied a job I was otherwise qualified for on the basis of my disability?

The New York Times ran an article this week about a study recently presented by Syracuse and Rutgers Universities demonstrating that there is significant discrimination taking place when it comes to disabled job seekers. It is important to be aware that there is legal recourse available for disabled applicants who experience discrimination during their job hunting.

The study mentioned was organized in the following way:

Cover letter and resumes were sent in response to job opening ads. The applications were for fictitious candidates. There were two different resumes sent for each position, one for an experienced candidate, and one for a qualified candidate with little experience. Three different cover letters -- one purporting to be from a non-disabled applicant, one from an applicant with a spinal cord injury, and one from an applicant with Asperger’s syndrome were sent with each resume.

The researchers found that for the experienced candidates, responses from employers were significantly more likely when the employer was responding to the application of the non-disabled person. Employers were 34 percent less likely to show an interest in the disabled applicants. Researchers commented that they hypothesized this result, but that they did not foresee such a drastic outcome. The researchers also found that responses were 15 percent less likely for disabled applicants among the applicants that were not experienced, but nonetheless qualified.

Researchers were hoping to explain the steep drop off in employment rate for disabled workers. Statistics show that 34 percent of people with disabilities are employed as of 2013, whereas 74 percent of those without a disability are employed. It seems very likely that bias is a contributing factor in these hiring statistics. Particularly disturbing is that the gap is greater for people with disabilities who have more education, experience, and qualification.

For those who are disabled and experience discrimination relative to hiring or in the workplace, there are law firms that specialize both in disability and discrimination cases. If you are disabled and feel you have been discriminated against because of your disability, you should contact an attorney who specializes in disability to investigate the legal options available to you.

I have chronic asthma and suffer from frequent attacks. Could I be eligible for Social Security disability benefits?

With any evaluation of Social Security disability benefits, the SSA will review the applicant’s occupational information as well as the medical condition from which he or she is suffering. Generally speaking, benefits may be awarded to one who – due to both the nature of the job and the severity of the illness – is unable to continue working at their current place of employment without enduring a substantial health risk. Accordingly, the results of an application for benefits may vary – even within a group of applicants suffering from the same condition. However, when reviewing a claim involving a condition like a chronic respiratory issue, the SSA will take a look at certain factors across the board.

Respiratory disorders

Asthma, COPD, emphysema, and chronic bronchitis (bronchial inflammation) fall under the umbrella of chronic respiratory disorders. When reviewing claims involving these conditions, the SSA will refer to the list of qualifying symptoms as found in its Blue Book, which details the symptoms and effects of nearly all qualifying conditions recognized by the SSA. If a condition meets the symptoms listed in the Blue Book, the SSA will approve the application for benefits automatically. Nonetheless, proving that the symptoms interfere with patient functioning is not always easy.

• Chronic Pulmonary Insufficiency

  Meeting this test requires a spirometry test showing that the volume of air exhaled in one second is equal to or less than a certain amount given the applicant’s height. An alternative test may be necessary for applicants suffering from a condition impacting the oxygenation levels in the blood.

• Asthma

  To automatically qualify as an asthmatic, an applicant must show evidence of an asthma attack at least once every two months or six times per year, lasting longer than 24 hours, and requiring hospitalization.

• Cystic Fibrosis

When evaluating applicants with cystic fibrosis, the SSA will review the frequency of respiratory infections, lung capacity, and/or the number of annual episodes requiring medical intervention.

Though a patient may be troubled by respiratory difficulties, unless the patient meets the above conditions, he or she will not qualify as disabled under government guidelines. 

How do I know whether I qualify for Social Security Disability?

Generally speaking, those who qualify for Social Security Disability will have worked at a qualifying job for a certain number of years and have a medical condition that qualifies as a “disability” under Social Security rules. The “disability” will have to be one that renders the recipient unable to work for a year or more. Benefits will continue until the recipient is able to work again on a regular basis. What actually qualifies as the appropriate amount of work and what qualifies as a “disability” can get tricky.

As far as the work requirement goes -- you must have worked for a certain period of time to qualify for benefits. Social Security counts the amount of work you have done and how recently you have done it to compute the benefits you are entitled to. Generally, recipients will need 40 “credits” to qualify, 20 of which were earned in the past 10 years. Each “credit” corresponds to a value of earnings. Such values change over the years. For example, in 2015, $1220 of earnings counted as 1 credit.

The trickier part is determining what qualifies as a disability. Social Security Disability recipients must have a total disability, not a partial or temporary one. Social Security will determine if the disability prevents you from being able to work and whether such inability will last for a year or longer. Social Security will also determine whether the disability prevents you from adjusting to other types of work. The method that Social Security uses is a bit complicated. They maintain a list of conditions that qualify as total disabilities. If the recipient has one of these conditions, they qualify. If not, Social Security will attempt to relate the recipient’s condition to one of those on the list. If they are similar enough, the recipient will qualify.

If you are having trouble qualifying for Social Security Disability, or interacting with the Social Security Administration, you should retain an experienced advocate from the Seelig Law Offices. Serving clients in the greater New York City metropolitan area, we can be reached at: 212-766-0600.

What are my options when facing unlawful discrimination by the public transportation system?

As an agency of the state – and leading provider of public accommodation – public transit systems are required to adhere to the tenets of the federal Americans with Disabilities Act (ADA), equal protection laws, and all state and municipal regulations pertaining to accommodations for those with a disability.

When it comes to service animals, the ADA has set forth clear guidelines requiring accommodations and allowances for such animals – even in areas where pets are generally not allowed. For instance, a pet-free apartment complex is required to make an accommodation for any tenant relying on the assistance of a service animal, regardless of the animal’s size or breed. Likewise, a public transportation system must ensure its disabled clientele are able to board and disembark safely and with the help of a service animal if needed.

Earlier this year, a New York City woman filed a grievance with the city after the public transportation system allegedly refused to allow her to board with an animal designated as a “therapy” dog. In her complaint, the woman accused several Bronx-area bus drivers of turning her away, berating her, and even calling the police about her. According to her allegations, she suffers from severe depression and anxiety, as well as substantial vision problems. To remedy these conditions, she travels with the help of a support animal that is able to calm her fears, help her avoid dangerous situations, and even remind her to take her medication.

Currently, there is a differential between a “service animal” as covered by the ADA, and an emotional support or therapy animal. In the former, the animal has been trained to specifically address the unique mental or physical needs of its handler – who must suffer from a documented disabling condition. The latter, while considered an important component to mental health treatment, is not always considered within the guise of a service animal, and many individuals have experienced harassment and discrimination by uninformed shopkeepers, landlords, and the like.

If you are facing a situation involving disability discrimination in the five boroughs of New York City and you would like to discuss your options with a reputable legal professional, please contact the Seelig Law Offices LLC: 212-766-0600.

I was recently denied disability benefits by the Social Security Administration. What are my options in New York?

As more and more Americans face career-ending physical and mental disabilities, the available resources for new applicants have steadily diminished over the past several years. Accordingly, applicants report an increasingly difficult time obtaining an approval for full disability benefits from the Social Security Administration (SSA), yet are unable to return to work either part-time, or at all, due to the excruciating effects of their conditions.

Fortunately, in July, 2015, the New York State Office of Temporary and Disability Assistance (OTDA) announced an increase in funding available to those who have been denied benefits on a federal level, creating a small fund to help assist these individuals as they explore other options.

According to the press release, a total of $6.8 million has been allocated across 12 agencies statewide to provide legal assistance to applicants looking to appeal their denial or discontinuation.

In a statement by the OTDA, “providing this vital support enables individuals in need of assistance to have continued access to services without interruption…Helping eligible individuals receive Social Security benefits improves their financial situation while reducing associated costs to the state and local governments.”

The program is designed to help low-income New Yorkers receive fair and equitable access to representation through the federal appeals process. In so doing, the various legal aid societies across the state have teamed up to offer high-quality pro bono services to those who are in need of federal disability benefits but are unsure where to turn.

In addition to assisting the various legal aid groups, additional funding has also been earmarked for use by the Disability Advocacy Program, which works on behalf of disabled New Yorkers to secure vital services.

If you are struggling with your application for benefits, or have recently received notice that your benefits are being discontinued, please contact one of our knowledgeable attorneys at the Seelig Law Offices. We serve the entire New York City metropolitan area, including all five boroughs, and can be reached at 212-766-0600.

Are companies like Über and Lyft required to make accommodations for disabled individuals?

The Americans With Disabilities Act (ADA) requires business owners to make areas of “public accommodation” reasonably accessible to those with disabilities. Generally speaking, areas of public accommodation are those sections of either a public or private sector building that are available to the public at large, including the common areas of retail stores, sidewalks, rental facilities, and service centers.

Of course, with a legal term like “public accommodation,” there is bound to be a great deal of demand for interpretation given the specific and unique facts of each situation. For instance, how does the law apply to a ridesharing company like Über, which offers taxi services to hundreds of thousands of New Yorkers on a daily basis? For the 900,000 residents of New York City with a physical disability, recent protests solidified their assertion that Über has a responsibility to expand its fleet to include accessible vehicles, and Über’s vehicles should be considered areas of public accommodation.

On the flip side, Über has argued that it is too cost prohibitive to make the necessary acquisitions of accessible vehicles, especially when there is an alternative available through the city’s green taxis. However, as several hundred protestors have pointed out, green taxis are not permitted to service fares below 96^th street – a law which Über has vowed to help change.

Overall, there are just 581 wheelchair accessible yellow taxis, and approximately 1,800 green taxis in circulation to help transport the city’s 900,000 disabled residents – a number anti-discrimination activities believe is way too low.

It has yet to be determined whether Über will be mandated to include accessible vehicles in its fleet, however the law will likely exempt a private ridesharing company from mandatory compliance with ADA public accommodation standards.

If you are experiencing disability-based discrimination, or would like to discuss your recent experiences with a knowledgeable disability attorney, please contact the Seelig Law Offices at 212-766-0600.

Where does the law stand in terms of disability benefits for taxi cab drivers? 

In New York, a special short-term disability statute allows for workers across a wide variety of industries to enjoy some semblance of financial security when facing a short-term illness or injury. Unlike other states, many employers are legally required to offer short-term disability policies to their workers, provided those workers meet certain criteria.

One such criteria – which has proven problematic for the thousands of cab drivers in New York City – is reaching a status of “employee,” as opposed to independent contractor. The former status allows for a greater number of protections – including access to disability benefits – while the latter offers virtually no financial protection or security. 

The current laws surrounding employment and disability status for taxi cab drivers are somewhat controversial. A recent change to the laws as relating the similarly-situated car wash industry, however, has offered taxi cab drivers (and their advocates) a renewed hope that the laws will soon turn in their favor, resulting in employment and benefits equality. 

Recognizing the limitations imposed by the independent contractor status, the Taxi Workers Alliance began imposing a $0.06 fee on all fare payments tendered by credit card. Over time, this amounted to a sizable $1.4 million savings account reserved for those drivers who needed financial assistance during a time of short-term disability. However, in April 2014, a Manhattan trial court judge struck down the fund, holding that the TWA did not have the authority to impose the fee. 

As the issue lingers on, taxi workers and advocates are hopeful that the recent classification of car wash workers as employees rather than independent contractors will help these hardworking employees obtain the disability and employment benefits they deserve. As a result of the recent ruling by the New York City Council, car washes are now subject to labor compliance oversight, random inspections, and severe penalties for failure to follow labor regulations. 

If you are concerned about your short-term disability benefits, or would like to speak to a reputable attorney about the matter, please contact the New York City lawyers at the Seelig Law Offices today by calling (212) 766-0600. 

If I am denied Social Security Disability benefits, can I appeal?

Social Security disability benefits are often denied wrongfully, or due to an incomplete application and medical record. Oftentimes, an applicant who receives a Notice of Denial is able to successfully reapply and receive much-needed financial assistance. However, denials may also occur as a result of a glitch or issue in the Social Security Administration’s system – as was the case for hundreds of Kentucky residents who have happily had their wrongfully-denied benefits restored.

Eligibility Review Issues Spark Unprecedented Suspension for Disabled Beneficiaries 

Across several counties in West Virginia and Kentucky, as many as 1,000 disability beneficiaries received an unexpected and life-shattering notice from the SSA that their benefits were being suspended pending an ‘eligibility review.’ For most of these individuals, loss of their benefits would mean virtually no income for an indefinite period of time – leaving many to wonder how they would pay for food, shelter, and medicine.

In an immediate move by representatives from the area, residents’ voices were heard and benefits were immediately restored pending the outcome of the reviews, which were calculated by the SSA to determine if residents were still eligible to be receiving disability benefits under current guidelines.

Classifying the matter as ‘life or death,’ U.S. Representative Hal Rogers urged the SSA to restore funding to these residents until the review process concluded – as opposed to making them wait for payments while agents processed each file. According to local reports, as many as three residents from the area are believed to have ended their own lives over the thought of complete destitution – a fact with which local residents and lawmakers cannot live.

The eligibility reviews were prompted by an investigation into a Kentucky-area lawyer believed to be falsifying medical records in order to win approvals for his clients. Nonetheless, representatives for the beneficiaries reiterated the injustice of suspending benefits without giving them an opportunity to prove eligibility

As experienced and knowledgeable NYC disability attorneys, we are well-versed in the eligibility criteria required by the SSA, and can help you prepare and defend your application for benefits. To get started, contact Seelig Law Offices by dialing (212)766-0600.

Are Psychological Ailments Considered A Disability?

A police officer began to suffer from anxiety and depression after responding to the 2012 Newtown shooting at Sandy Hook elementary school.  The officer has been on disability due to a diagnosis of post-traumatic stress disorder and has not worked since the day of the shootings when twenty children and six educators were killed.  

Newton’s police chief originally suggested firing the officer because he is unable to return to work.  The chief later withdrew that statement, but brings to light the negative connotation those on disability face when they are unable to return to work because of an injury.  This officer was one of many who responded to a horrific scene at the school that day.  The officer originally supervised the evacuation of children from the school’s side doors but later went into the classroom where many of the children were shot dead by the gunman.  The officer says the things he saw that day continue to affect his mental faculties and ability to adequately perform his job.   

The officer testified in front of Connecticut lawmakers during a General Assembly’s debate on granting worker’s compensation and disability payments to first responders suffering from PTSD.  The town’s insurance company is responsible for paying 50% of the officer’s salary through June.  The State Board of Mediation and Arbitration ruled the officer’s contract with Newtown requires the town pay the officer half of his salary until retirement.    

A first responder’s job often involves witnessing horrific accidents and crime scenes..  New York provides short and long-term disability when people become physically or mentally ill. But, filing for and successfully claiming disability can be tricky and tedious.  The lawyers at Seelig Law Offices have years of experience helping people claim disability benefits and getting a maximum payment while the individual is unable to work. Contact our experienced New York City disability lawyers today at (212) 766-0600 for a consultation.