Many mass tort clients may already qualify for an important benefits program that can help them make ends meet while their cases are pending: Social Security disability insurance (SSDI). Unfortunately, many may not know about SSDI and their attorneys may be overlooking the availability of these valuable benefits. However, referring a client for SSDI may not only be beneficial to the client, it could be advantageous to the attorney as well.

Benefits for Clients and Attorneys

It is understandable that lawyers are so laser-focused on the often-complicated multi-district litigation matters that they may never consider Social Security disability benefits for their clients. After all, the stakes are often so large in mass tort cases that the modest recovery from SSDI seems a pittance.

However, SSDI benefits can help keep the client afloat during the pendency of his case. Many may have suffered disabling effects from a mass tort and are out of work. Under SSDI, the client may be eligible for up to $2,700 per month, or more than $30,000 per year, depending on how much was paid into the system. In addition, the client would be entitled to receive Medicare in two years from the date that he is found to be a disabled individual.

The money and health insurance coverage could be a godsend for a client who is unable to work. For those clients, it could be the difference between survival and financial ruin.

Meanwhile, referring a client for SSDI helps the attorney to fulfill his ethical duty to provide quality service. Moreover, SSDI can also help the mass tort lawyer in two other ways—by providing an invaluable self-screening tool for mass tort plaintiffs and by helping to soften the blow for those clients who do not meet those requirements.

Identifying SSDI Cases

Social Security disability is not a public assistance program. It as a disability insurance program that pays benefits to those suffering from disabling medical conditions that prevent them from working. It is funded by withholdings taken from every paycheck a worker has earned.

For clients to be eligible for SSDI, they must meet Social Security Administration's definition of disabled under a five-step process: the client is out of work or earning less than $1,220 per month; the client suffers from a medical condition preventing him from working that has lasted or will last 12 months or result in death; the medical condition meets the listed requirements for that specific ailment; the client cannot perform the work they have done in the past; and he cannot perform other types of work in the national economy. Importantly, if the client is over 50 years old and performed past work that is physical in nature, their chances of success increase tremendously should they be found unable to simply perform their past work.

Unlike a tort case in which the plaintiff must prove the causation of their medical condition, SSDI has no such requirement. The qualifying medical conditions do not have to have any specific cause and do not have to result from work.

It is easy to see how many mass tort clients already qualify for benefits under these criteria. Mass torts often involve devastating injuries or illnesses for which they are already receiving medical treatment. It is especially true for those clients suffering the effects of cancer, kidney failure, extreme pain due to a faulty implant, or any number of impairments caused by defective products or medications. Most of those impairments are disabling, preventing the client from working.

A Helpful Screening Tool

When a lawyer signs up a new mass tort client, there is no certainty that the client will ever get compensation. The SSDI application process can help identify those mass tort clients with severe enough injuries to entitle them to compensation in their mass tort cases. In addition, depending on the severity of their conditions, they could start receiving benefits well before the MDL goes to trial or settles. Plus, the referring law firm or attorney also shares in the advantage of our nationwide network when referring a client.

An SSDI referral could also be useful in handling clients whose cases do not make the cut. Often during mass tort litigation, evidence comes to light that disqualifies a client from pursuing their tort case. No attorney enjoys telling clients that they can no longer pursue their cases. An SSDI referral helps soften the blow.

For instance, the client may have taking a generic version of a drug, as opposed to the brand that is the subject of the litigation. While that client may have suffered the same harm as the other plaintiffs, they face dismissal from the case. This can be devasting for them because while they have been harmed in the same way as other plaintiffs, they won't be able to pursue recourse through the MDL.

Now, instead of just rejecting the client outright, the attorney can at least offer the client an SSDI referral, affording the client a real opportunity at some sort of recovery.

No Effect on Litigation

Referring a client for SSDI will have no effect on their mass tort case. Clients can receive SSDI benefits while receiving workers' compensation benefits or if they are in litigation for any legal matter, including mass torts, personal injury or wrongful termination. Applying for SSDI will not affect their case. There are no offsets or liens for SSDI benefits.

There are potentially Medicare set asides. Set asides apply when either a Medicare recipient settles a personal injury case for more than $25,000 or if someone who can be expected to receive Medicare within 30 months of a personal injury settlement settles a case for more than $250,000.

Consider SSDI for All Your Clients

While it is easy to see how many mass tort clients may already be eligible for SSDI, all other types of clients who have suffered severe injuries or illnesses may also qualify.

While lawyers often view their clients through the lens of whatever issue they are consulting about, it is advisable to take a step back and view the client holistically—to consider all the claims they may have available to them. This will allow the attorney to maximize the client's recovery. Not only will that help attorneys to fulfill their duty to provide competent representation, but it will also help them stand out among their competitors for client service.

Thomas J. Giordano heads Pond Lehocky Stern Giordano's Social Security disability department. He is admitted to practice law in Pennsylvania and New Jersey and before the U.S. District Court for the District of New Jersey. Contact him at [email protected].