Disabled soldiers: WTU earnings and Social Security disability (what you MUST know)

The touchstone in disability cases is the ability to work. More specifically, the test is whether an individual can perform a Substantial Gainful Activity (SGA). One of the first tests of whether work is SGA is earnings. In 2015, earnings of $1,090 per month (before taxes) suggests the work is SGA.

However there are exceptions to this. One of these is for sheltered work as defined in 20 CRF404.1574(a)(3). Here is what you need to know:

If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid. The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or governmental aid does not establish that you are not earning all you are being paid. Since persons in military service being treated for severe impairments usually continue to receive full pay, we evaluate work activity in a therapy program or while on limited duty by comparing it with similar work in the civilian work force or on the basis of reasonable worth of the work, rather than on the actual amount of the earnings.

The idea behind sheltered work is that an individual may not be earning all of what they are being paid. The value of the individual’s work may be half (or a different percentage) of the amount actually paid. The amount paid over the value of the work is a subsidy. Social Security only counts the value of the work and not the subsidy in determining if the work is SGA.

For may injured soldiers, before discharge from their branch of service, they may be placed into a Warrior Transition Unit (WTU) or similar program. While the soldier’s salary stays the same, the duties are greatly reduced.

Do the earnings while in a WTU count as SGA?

According to Social Security Ruling SSR 84-24 , they probably will not count as SGA:

A person in the military service who is being treated for a severe impairment usually continues to receive full pay. Therefore, for SGA purposes, it is not appropriate to evaluate his or her work activity based on the amount of pay received. Instead, it is necessary to use nonmonetary SGA criteria in assessing the work activity of a service person receiving treatment at a military hospital and working in a designated therapy program or on limited duty. That is, we compare the activity with similar work in the civilian work force and determine its reasonable worth.

Severely impaired service persons may, for example, be placed on limited duty status and put to work in a hospital, office, mailroom, laboratory, or the like. The controlling factor in these cases is an objective evaluation of the work activity itself, and not the service person’s duty status, or whether or not a formal therapy program is involved. The fact that a therapy program or limited duty status is involved necessarily suggests that special conditions may exist.

This requires that we consider the real value of the work effort within the military setting and then equate its value to similar work in a nonmilitary setting.

In short, SSA has to consider the real value of the work performed while in a light duty situation. This does not automatically mean that the work performed is not SGA. However, it many cases, especially when a soldier’s main duty is showing up on post and performing very minimal duties, it is quite likely that the work performed as part of a WTU will not be considered SGA, even though the earnings are over the SGA threshold. However, it is important to document the following:

  1. When a soldier enters a WTU program,
  2. The duties performed in the WTU, and
  3. The date of separation from the military.