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This is a very common question I get from clients. First of all, before addressing the question, let’s recall that workers’ compensation has generally two components: payment of medical bills and the payment of lost wages. So, if your injuries do not interfere with your ability to work and the insurance company is only paying medical expenses, you may absolutely work. The insurance company would remain liable for your medical expenses while you work. Nothing wrong with working and treating your injuries at the same time.
The more complicated question is whether you can work while receiving workers’ compensation lost wage benefits. I will address this question in two parts. I would first like to address this inquiry for clients whose lost wage claim has been denied by the insurance company. In other words, there is an injury and the insurance company has refused to pay your lost wages, despite you being out of work as a result. The topic of “can I work” is something clients and I frequently discuss. The simple answer is “yes.” I always recommend that this conversation starts with your doctor. If you and the doctor conclude that you do have the ability to work in some capacity and you are capable of finding this type of work – whether it is with the employer that you got injured working for or a new one. If this happens, the recovery I am seeking will just change. For example, if you are injured on February 1st and return to work on November 1st, then we are seeking nine (9) months of lost wages, as opposed to an open-ended claim. Of course, if you were making $800 per week before your injury and your new job pays $500 per week, then we can pursue that difference in pay. So, using my previous example, we could pursue nine (9) months of total wage loss and then an ongoing claim for “partial” wage loss as of November 1st. If you do make an attempt to return to work but the job is short-lived, either because you cannot physically perform it or the job itself is of limited duration, then our pursuit of total wage loss can commence again upon you stopping work. Returning to our example again, if you work from November 1st to December 15th, then we can pursue nine (9) months of total wage loss, six (6) weeks of partial wage loss, and then an ongoing claim for total wage loss again as of December 16th.
The second situation that I should address is when you are out of work and the insurance company has accepted liability for lost wages and you are being paid. Can you work in this situation? Again, the answer is “yes.” However, there are strict rules in terms of how this must be reported. Assuming your physician clears you to work in some capacity and you return to work, this must be immediately reported to the insurance company. Even if you return to the pre-injury employer, do not assume that they inform the insurance company. They may, but they may not. It is still good practice to tell the insurance company in this situation. Obviously, if you return for a new employer, that employer has no relation to the insurance company and it would be your duty to inform them. If your return to work is at wages greater than or equal to what you made before the injury, then your lost wage benefits will be “suspended.” This does not mean forever ended. It just means they will stop for the time being. Even with lost wage benefits in a suspension status, the insurance company must pay for medical treatment still. I cannot stress enough the importance of having counsel in this situation. The insurance company will furnish a document that may or may not require your signature to stop your wage checks. It is good to have a lawyer review this. You do not want to compromise your future rights in the event that your injury causes you to stop working again. The wording and timing of these documents sent by the insurance company are very critical. You do not want to get tricked here. I should quickly also note here that it is illegal to return to work making greater than or equal to what you made previously and continue to collect workers’ compensation checks. You can get in a significant amount of legal (criminal) trouble for doing this.
If you return to work making less than what you made before your injury, you are entitled to ongoing partial wage loss checks. I always tell my clients in this situation to send me their paystubs and I will work with the insurance company to make sure you continue to get the right amount of pay from them. Again, transparency is critical here. My office will always handle this the proper way and most insurance companies already know that about us. I will also return here to a point I made above – if you return to work making more, the same, or less than what you did before, and then subsequently have to stop – you have the right to have your total lost wage checks reinstated. This usually involves some push back from the insurance company and may require litigation.
There is nothing wrong with contemplating a return to work following a work injury. It is something that I encourage my clients to think about and consider as we move along. There are many strategical components to this and it is something to discuss well before you can actually return. My relationships with my clients promote these conversations and you will be fully informed in making any decision along the way.
