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Practice Tip: Retaining Copies of Social Security Files

4/11

Recently, the spouse of one of my former workers' compensation (WC) and Social Security disability (SSD) client advised me that Medicare was denying (or "delaying") authorization and overage for cancer care and a bone marrow transplant. In 2004, I had settles the WC permanent disability case for my client as a lump sum but not the ongoing "supportive" medical care part that still covers his maintenance medical care for various fracture injuries that he sustained after a 30-foot fall at work. The settlement had the proper WC/SSD offset wording so that his SSD benefits and those of his spouse and family were not reduced at all. At that time, I promptly filed with SSA a copy of the WC settlement agreement after the proceeds were disbursed and I gave my client a copy.

Under Arizona ethics rules, attorneys must store files for at least five years. Medicare was now telling my client that I, as his attorney, had never filed the WC settlement agreement and that, as a result, they would not cover his current hospital care. My client's spouse could not find a copy of the settlement papers or what I had filed with SSA in 2004. I had previously decided not to shred any Social Security file or any WC file that involved SSD or SSI benefits so I was able to fax the copies of the settlement agreement, on that very day, to the Medicare representative. I also was able to send my client the copies, which showed that there was no settlement of medical benefits, had the proper WC/SSD offset wording, and proof that it was filed by me in 2004.

Thus, a nightmare scenario was averted. I have heard about and noticed in my experience, handling SSD claims since 1983, that SSA loses papers filed by claimants and attorneys, but then routinely says that the papers were never filed. I would recommend to attorneys to: (1) always consider and keep the proper documentation when communicating with SSA, (2) consider never shredding any Social Security files, and (3) always use the properly worded WC/SSD offset provision for any WC settlement agreement even if the client is working or plans to return to work in the future.

By Mark S. Lucas, Esq., Phoenix, AZ