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socrateaser, Lawyer
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I have a person working 1099 / independent contractor that

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I have a person working 1099 / independent contractor that is going to court to try and get disability income. Nothing related to any injury from work with me. He truly has serious disabilities ranging from diabetic to 14 months ago being in a coma for 11 days, being declared dead 17 minutes and revived and a portion of his brain being surgically removed which effects his memory and reasoning. He has done work for me 40 plus hours a week since last August. A 1099 was filed for 2012s income. In 2 weeks he goes to court to try to appeal previously being declined for disability. He has asked If I would sign a letter stating that he is making $200 a week or less. I do not intend to do so because he makes $450-$500 a week.
However I truly believe he deserves 100% disability or at least a high percentage. Working with me he is progressively getting worse. He has been found passed out on the floor/ ground at least once a week. Sometimes up to 3 times a week. Reasons range from forgetting to turn off breaker and getting knocked out by electric shock to him hitting himself on the head with a door, beam etc.... He has also been to the ER more then once. Last time he was using a razor knife to skin a wire and it slipped and went deep into his arm. He frequently forgets what I told him or worse remembers the subject but not that I said NOT to do a particular thing such as cutting down a bush or tree and he does cut it down. When asked he's sure I said I wanted it cut down. When I had clearly said do not trim or cut that down. He tries so hard, truly puts his everything into trying to impress me or do good at his job. But as our work load has moved on from remodeling my vacation rental to performing more random tasks, his memory issues are getting far worse. I also witness him in tears due to pain when he has to bend down for awhile and tries to stand back up. Let alone doing lifting, lawn work etc. I see him in tears from pain almost daily.
I respect him for trying so hard. If not for this I would of already replaced him. I'm willing to help him anyway I can as far as his court hearing. I have not spoken with his lawyer. But so far all they have requested I sign a letter saying he makes under $200 a week. He's thinking since I won't report his income on a 1099 until early next year, that he will get buy with this. I will not lie and sign this. But I have held off on declining to do so until I see the letter. Im asking advise on this letter situation. I'm also more interested in helping him get the disability income so he can not be forced to push himself far to hard trying to do this work for me. His previous line of work has been big rig driver, but lost commercial license due to diabetes. Next he was diesel mechanic, but due to brain surgery could no longer perform that job. He use to make $2400 a week and now struggles to get by working for me at $450-500 a week. How can I best help him to get the disability income he deserves? ( without signing a false income statement)? It's my impression by refusing to sign that letter, his case will turn against him. But truth is, he is seriously disabled. We would both benefit from him winning his case. As much as I admire his efforts and devotion to this work, he simply can not keep up with the required tasks. And it hurts me to see him put himself through so much pain trying to do so. If he looses, I will likely have no choice but let him go anyway. If he gets 80% disability or similar and is allowed to make a small income. I would be willing to downgrade his time/ tasks to things simple like mowing yard, clean pool. This means allot to me. Any and all advise is much appreciated.

I'm a bit confused by your question. By "disability," are you referring to Social Security Disability Insurance (SSDI)?

If yes, then by "court hearing" do you mean a Social Security administrative law hearing concerning the worker's disability qualification?

Thanks in advance.
Customer: replied 4 years ago.
As far as I know yes, social security disability insurance/ social security administrative law hearing concerning workers disability qualification. I do know for sure he has no other type of options available. Such as no claim to on a job injury or claim towards any kind of insurance coverage that includes any disability coverage.
I certainly cannot recommend that you sign a declaration stating that the claimant earns less than you pay him. You could find yourself being prosecuted for a federal felony fraud against the United States.

If the claimant's attorney asked you to sign this letter, that attorney could be disbarred from practicing law -- and prosecuted for the felony. It's an unbelievable request.

The claimant's greatest strength is the testimony of his physician. What you can say, assuming that it is true, is that the claimant's current job performance will require you to terminate your contract with him, because he can no longer perform the essential functions of the job, and you would suffer an undue hardship by having to continue to employ his services. That way, you are not saying anything other than what is true, and the administrative law judge will know that the claimant can no longer count on any earnings coming from you, looking forward.

Hope this helps.
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Customer: replied 4 years ago.
I have no way of knowing if his attorney is aware of his earnings. Until recently I was under the impression that I would be requested either in court or in writing to verify his limitations in regards XXXXX XXXXX it effects his work. For example passing out, found on floor/ ground. Leaving doors not just unlocked but wide open and driving away totally forgetting to lock up. Doing the opposite of what I've asked him to do. Repeating things spoken to others with no recall of saying the same thing only moments ago.
I am faced with a difficult situation/ decisions to make. Based on what you replied I would likely help his case if I terminated contract labor with him leaving him with no income. But of course even if they rule in his favor, he would likely be evicted from his house and in severe financial distress because I assume even a ruling in his favor would take many months to get him started on any income assistance let alone back pay/ reimbursement which if I understand correctly he hopes to get.
In making this decision I need to ask my risk/ liability that I may be exposing myself/ business to allowing him to work when he is now known to be so accident prone during his work at my vacation rental houses.
I also would appreciate your opinion on me asking him to allow me to speak with his attorney. I know his attorney can not discuss his case with me. But perhaps I can convince this person his attorney needs to know his true earnings and my witness to his limitations as they apply to work.
My only remanning option other then termination is truly reducing him to very limited hours with only simple tasks such as clean pool, mow lawns.
With only 2 weeks until his hearing, if his attorney is not aware of his true earnings and I refuse ( which I will) to sign letter with false statement of income, it is my belief they need a change of strategy quickly. In which case I need to address this with him asap.
As a side note, 6 years ago a drunk driver/ hit and run left me with permanent back / neck injuries, severe chronic pain, a brain injury that effects my memory and PTSD. Which makes me relate to this person and what they are going through. Ive become not just a source of income but a mentor in regards XXXXX XXXXX useful and looking beyond limitations at what life can still offer. Due to my own injuries/ limitations I now must pay others to perform these tasks for me with my vacation rentals. If not for the help and devotion of others I pay to perform these tasks/ work, my business would fail and I would be just about where he is right now. Which for the most part is unemployable. That said, its still my job to run this business. Your advise and suggestions are deeply appreciated. This is a very emotional/ difficult situation.
Thanks for the update.

To be frank, I think you are taking on too much responsibility here. I can certainly relate to your circumstances causing you great empathy for the claimant -- but, based upon what you allege here, if I were the claimant's lawyer, I would be subpoenaing you to testify at the hearing, because what you are describing demonstrates that this person cannot possibly work (involuntary unconsciousness, on the job is not a demonstration of reasonable earning capacity).

You can write or call the claimant's attorney and briefly explain what you would testify to were you asked to do so. After that, it's up to the claimant's lawyer to obtain your testimony at the hearing. If the attorney does not, then he/she must have a reason why -- hopefully a good reason.

Don't beat yourself up over the process or result, if it doesn't seem reasonable, because you don't know everything involved in the case. This doesn't mean that the attorney is infallible -- far from it. But, it's still not your job to practice law on behalf of your friend/worker. All you can do is make yourself available to testify. After that, it's up to the lawyer to determine if your testimony is useful or not.

Hope this helps.
Customer: replied 4 years ago.
I very much appreciate your advise on all of this. All of which I agree with completely. And I hate to ask for more of your time. But a portion of what I was trying to ask has a big impact on the decisions I face. So I will try to be more clear in regards XXXXX XXXXX I'm asking. 1: I have no liability insurance coverage for workers. If I allow someone in his condition to continue work on my properties am I exposing myself to potential liability issues? ( truly don't see any circumstance where he would try to sue me) Yet still need know my potential exposure.
2: will reducing his hours/ work now benefit his potential outcome of his hearing? 3: would terminating his work now better benefit the potential outcome of his hearing?
Again thank you so much for your help and advise.
1: I have no liability insurance coverage for workers. If I allow someone in his condition to continue work on my properties am I exposing myself to potential liability issues? ( truly don't see any circumstance where he would try to sue me) Yet still need know my potential exposure.

A: Assuming that the claimant has no workers' compensation insurance coverage, then you have huge potential liability. Because if the claimant is injured through some lack of due care on your part, then you will have to pay the claimant's damages, which could include lost wages, as well as medical -- past, present and future.

Also, the claimant could be determined to be a misclassified employee, rather than an independent contractor. The claimant can simply file a form SS-8 with the IRS, and if Uncle Sam decides he should be an employee, then you are in BIG trouble.

Unfortunately, there is no way to prevent this issue from arising, should the claimant decide that he has nowhere else to turn. All you can do is try to help the claimant get disability -- and hope that's enough to perhaps cause the claimant to feel obligated to you.

2: will reducing his hours/ work now benefit his potential outcome of his hearing?

A: That smells like conspiracy to commit fraud to me. It's not fraud on its face -- it just opens up the possibility. I can't tell you what to do, but I don't know that I would change anything until this is all done with.

3: would terminating his work now better benefit the potential outcome of his hearing?
Customer: replied 4 years ago.
Thank you for all the information. To some degree I have been holding off on cutting back on his work or terminating his work in hopes things will go well for his disability and I will no longer be his only source of income. He in my opinion is not able to perform the tasks needed without cursing himself much pain, which often leads to him being grumpy or rude to others working. I've lost a number of good workers due to this. It's all to common that he upsets other workers and they see me letting him get by with poor job performance which makes things worse. Based on what you have said cutting back on his work or terminating him all together at this time before his hearing could look bad on my part. Yet I am fully willing to testify or write letters to help him prove his disability. But by doing so I would imagine it would. bring up the question of why am I still contracting work to him if I am stating all these reasons he is not fit to work. Which it would seem may discredit my statements. So it seems it comes down to I offer my statements he's not capable of doing his job, yet I let him work anyway. Or I happen to choose to terminate his work 2 weeks before his hearing, but willing to make statements on his behalf regarding him not being capable of performing his work and is disruptive of other workers. Truth is if not for his upcoming hearing and my deep appreciation for his hard efforts over the winter remodel and emotional / mentor type position I'm in, I would of let him go months ago. I'm going into the businesses peak season and he keeps upsetting the other 4 people trying to do there work. I understand first hand how pain and lack of ability to get sleep can make someone feel/ act. But others can't. And it takes its toll on all of them. I can wait until after his hearing to reduce his work or eliminate him if that is likely best. But that does leave him working 45+ hours a week yet claiming disabled. And may discredit my statements if allowed to do so. Or I can terminate him now and offer statements as to why. Seems each has there pros and cons. But if you have an opinion you would be willing to share as to which may be better for everyone involved, please share this with me. Again thank you so much for all you have shared with me. I'm just at a loss as to how to proceed.

I've already explained your risks, and your options. And, I've suggested that you may be over-thinking the matter. It's really not up to you. It's up to the claimant's attorney. If he wants your testimony, then he will seek it. Otherwise, not. So, you can, in fact, do nothing, unless and until you receive a subpoena to testify. It's really that simple.

Best wishes.