Can You Apply for Unemployment While Waiting to Receive Workers’ Compensation?

February 8, 2021
Stern & Cohen

This is a question that we are often asked by our clients – and it makes sense. You are unable to work because of an injury and now, in addition to being in pain and dealing with your injury, you no longer have an income to support yourself or your family. Work injuries place financial strains on individuals and their families.

For starters, if your Workers’ Compensation claim is denied by the insurance carrier for some reason, we have to litigate a “Claim Petition.” This Petition gets your case into Workers’ Compensation court so we may pursue your lost wages and/or medical expenses. We understand that not everyone can endure being without an income for an entire year, the amount it typically takes to litigate a case (this topic was discussed in a previous blog – check it out HERE). If you fall into that category, the answer is “yes”, you should apply for other sources of income.

Under Workers’ Compensation laws, an injured worker can receive benefits, such as unemployment compensation. However, if we are successful in litigating your Claim Petition, your employer has the right to reduce your Workers’ Compensation benefits based upon the net amount of unemployment benefits you have received.

Let’s break this down. To be clear, the receipt of unemployment compensation benefits by the employee is not a bar on the receipt of Workers’ Compensation benefits. In other words, we understand that when filing for unemployment, you have to certify that you are available and able to work. How does this reconcile with the fact that you are currently litigating your claim alleging you cannot work because of your work injury and are entitled to Workers’ Compensation benefits?

The answer is fairly simple. You can be “disabled” under Workers’ Compensation and entitled to full disability benefits, meaning you are unable to perform your pre-injury job with your employer because of your work injury – but that does not mean you are not capable of performing some other type of job. If you are partially disabled and you may be able to perform light duties, then you are qualified to receive unemployment compensation benefits and for the same period, be entitled to benefits for total disability under Workers’ Compensation.

How might this look in a case? Let’s say, for example, that you are a carpenter, and you break your leg on the job. It seems fairly obvious that you will not be able to continue your job as a carpenter while you are treating your leg and waiting for it to heal. Under Workers’ Compensation laws, you are disabled because you can no longer perform your pre-injury job duties as a carpenter. However, if you were accommodated and given a sedentary customer service type job, or a work-from-home job that involved mostly being on the phone, you could maybe work, even while recovering from your work injury. If your employer has not offered you a job accommodating your injury, which is likely the case if their insurance carrier denied your claim, you are entitled to apply for and receive unemployment. Further, in many instances, like the one above, if you work for an employer and your job involves physical, manual labor, oftentimes there is no “light-duty” job to offer. In that case, you can still apply for unemployment benefits.

Here is a simple example of how this might look in a real case. Let’s say you were injured on January 1, 2019, and your claim was denied. We litigated your Claim Petition, and in the interim, you applied for and received unemployment for a while. On January 1, 2020, the Judge determines you were injured and unable to work because of your injury and you still have not recovered. In this case, you would receive Workers’ Compensation wage loss and medical benefits retroactively from the date of your injury to now, in addition to future wage loss benefits weekly. Your employer’s insurance carrier will be able to get a credit for the net amount of unemployment benefits received that were paid in a time period that is attributable to your work injury. Simply put, you cannot “double-dip” and receive unemployment benefits and Workers’ Compensation benefits for the same time in an amount greater than if you never stopped working.

To sum it all up, applying for unemployment, i.e., agreeing that you are willing and able to work, does not mean that you are admitting you are not injured. Rather, you are agreeing that you could work in some capacity, but not what you used to do.

There are specific strategic decisions that should be discussed with an attorney.

Contacting An Experienced Workers’ Compensation Attorney

If you or a loved one has been injured in a work-related accident, call us at (215) 999-1443 or contact us by using the assistant or by filling out our contact form. The initial workers’ compensation consultation is free-of-charge.