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Pezzano Mickey & Bornstein, LLP

Workers’ Compensation And Unemployment

Both the temporary disability and unemployment programs provide “lost wage” benefits, but for very different reasons. You are generally qualified to receive temporary disability benefits if the authorized physician indicates that you are medically unable to return to work and are receiving active medical treatment. By contrast, you are only eligible for unemployment benefits if you were terminated from your job and you are ready, willing, and able to work. In addition, you must have worked within the last two years to qualify for unemployment benefits. Accordingly, unemployment is not an option for the long-term disabled, who should apply for social security disability.

What Happens If I Return to Work but I Am Fired Because I Am Physically Unable to Do My Job?

You should apply for unemployment benefits if the authorized workers’ compensation physician indicates that you are medically able to return to work but you are fired because you cannot physically perform all of your job duties. Your attorney may also use your termination as evidence that the workers’ compensation physician sent you back to work prematurely. However, you would not be entitled to receive additional temporary disability benefits unless you are able to prove that you also require further medical treatment.

If you return to active medical treatment, it is common for physicians to neglect to provide you with an “out of work” note given that you are unemployed. Do not allow your doctor to ignore this issue. In fact, there is no reason for you to volunteer to the doctor that you are collecting unemployment. Rather, remind the doctor of your chosen profession, and explain how you had difficulty performing your job duties. Ask your physician to comment on your ability to work. If the physician indicates that you cannot work in your chosen profession, and you need further medical treatment, then the carrier should resume payment of temporary workers’ compensation benefits and your unemployment benefits must stop. If there is any overlap between the temporary disability benefits and unemployment you must reimburse the Division of Unemployment.

If you quit your job, you are not entitled to receive unemployment benefits. Accordingly, do not quit, even if you feel that the physical demands of your job would be too much for you. If your physician released you to return to work you should attempt to do so, to avoid the argument that you abandoned your job. Otherwise, you may be caught in the unfortunate position of being ineligible for either temporary disability or unemployment.

You should attempt to return to work, and take note of those tasks which you have difficulty performing. You know your own body better than any doctor. Although you should try to work, if it is obvious that to continue with a given task will cause you further injury, then stop and inform your supervisor that you need help. You should then return to the doctor if possible to report your progress. Even if you did not receive an official “light duty” note, your employers may try to accommodate you. If not, and you are physically unable to do your job, then it is preferable for you to be fired, rather than quit, so that you may collect unemployment benefits. The bottom line is that you should not resign unless you have another position lined up.

What If I Return to Active Medical Treatment While I Am Collecting Unemployment Benefits?

If your employer terminates you because you were unable to perform the essential functions of your position, you may initially apply for unemployment benefits. You should then request a return visit to the workers’ compensation physician, and explain that you attempted to return to work as he recommended but were unable to perform your job duties. Tell the doctor exactly what tasks you had difficulty executing. If you did not do so previously, provide the physician with a copy of the job description from your employer, and ask him to reconsider whether there is any treatment available which could improve your function enough, to allow you to perform your job. You must emphatically express to the doctor that your aim is to return to the same line of work, and you are counting on him to help you so that you may return to work. If an authorized workers’ compensation physician indicates that additional medical treatment would help to improve your condition and that you are either unable to work or can only work light duty which is not available, then the workers’ compensation carrier should resume payment of temporary disability benefits, since you are no longer eligible for unemployment benefits.

As Long as I Am Being Paid, What Difference Does It Make If I Collect Unemployment Instead of Workers’ Compensation?

Unfortunately, there are many applicants who collect unemployment when they are physically unable to work because there is no medical proof that they are disabled, and they are ineligible for workers’ compensation benefits since they are no longer receiving active medical treatment. Unemployment runs out quickly, so you should be diligent in your search for work and consider accepting positions which are outside of your field, even if it means taking a substantial pay cut. You may be eligible for partial unemployment if you take a part time job. From a long-term perspective, it is preferable for you to try different jobs and stay in the workforce, then to wait for the perfect job opportunity.

If you collect unemployment benefits in New Jersey for the maximum number of weeks (currently 26 weeks), your benefits will end unless there is federal extension program in place, during periods of high unemployment. It is very difficult to persuade a workers’ compensation carrier to restart temporary disability benefits once you fall into the category of long-term unemployed. For this reason, if your condition worsens while you are receiving unemployment benefits it would be wise for you to return to the workers’ compensation doctor before your unemployment runs out. If the doctor indicates that you are disabled and additional medical treatment could improve your function, then you should stop collecting unemployment and your attorney should ask the workers’ compensation carrier to restart temporary disability benefits. The fact that you were receiving unemployment benefits will prove that you “lost wages,” because of your injury, thereby entitling you to receive temporary disability benefits again.

What if I Am Denied Unemployment Benefits?

Your employer may challenge your unemployment application if you were fired “for cause.” You cannot be denied unemployment if you were terminated because you were physically unable to perform your job due to your injuries. You should hire an attorney who specializes in unemployment appeals to fight on your behalf if your employer tries to block your application. Besides the short term problem of being left with no source of income, the denial of unemployment benefits may have long-term implications. If the Division of Unemployment finds that you were terminated “for cause,” and you do not find alternate employment, then the workers’ compensation carrier will likely deny payment of temporary disability benefits should you be taken out of work in the future due to your injury, on the basis that you have not proven a loss of wages.

Pezzano Mickey & Bornstein, LLP

Call Now For A Free Case Evaluation
(908) 923-0020