Can You Collect Unemployment While Your Workers’ Comp Case is Pending?
When you are unable to work because of restrictions from an on-the-job injury, but your employer’s insurance company has not yet accepted your workers’ comp claim, you may face a lengthy period without income. This is frightening.
Understandably you may search for all possible sources of income during this time, including unemployment compensation. We are often asked by potential and current clients if they can collect unemployment after filing a workers compensation claim seeking temporary total disability benefits. Specifically, these injured workers want to know if they should file for unemployment with the Virginia Employment Commission.
In most cases the answer is no.
This article explains (1) why you cannot collect workers compensation and unemployment at the same time and (2) how filing for unemployment can hurt your workers’ comp claim if your authorized treating physician has disabled you from all work.
Workers’ Compensation vs. Unemployment
Workers’ compensation and unemployment serve different purposes.
Workers’ compensation is meant to provide payments for the wages you are losing because you are injured and unable to work at your pre-injury level.
Unemployment compensation, on the other hand, is meant to provide payments for the wages you are losing because you have been fired or laid off. But there is a catch. You can only receive unemployment if you are actively seeking a new job. As stated by the Virginia Employment Commission on its website: “Each week you claim benefits, you must be able to perform work, be available for work while placing no undue restrictions on your availability, and be actively seeking work. In addition, you must accept all offers of suitable work, be registered for work with a VEC Workforce Center, accept any VEC referrals to work, report to the VEC when directed to do so, and report your income from any source.”
You cannot seek unemployment compensation if you are unable to accept a new job because of disability related to your workplace injury.
How Filing for Unemployment Can Hurt Your Workers’ Comp Case
Seeking unemployment can damage your chance of success at a workers’ compensation hearing and the value of a potential workers’ compensation settlement because it affects your credibility. This is best shown through an example.
Let’s say that you were hurt at work and chose a workers’ compensation doctor from the panel of physicians offered by the insurance company. Your doctor has examined you three times and provided a work status note totally disabling you after every examination. As a result, you filed a claim with the Virginia Workers’ Compensation Commission seeking an ongoing award of temporary total disability benefits.
At hearing your workers compensation attorney will present the medical records showing that you are unable to work. You may also testify that you are unable to work because of pain and other symptoms related to your work injury.
If you have filed for unemployment, however, the insurance company and its team of defense attorneys have material to impeach your testimony and attack your credibility. This is because they will have a document showing that you certified that you are able to work and that you will accept any job offered. The judge hearing your case may decide that you are exaggerating your symptoms and limitations based on this certification. Though your attorney can present evidence to show that you were simply doing anything you could to survive financially, this may not be enough depending on the deputy commissioner assigned to your case.
For this reason we recommend thinking long and hard before seeking unemployment when your doctor has restricted you from all work. Doing so may hurt your workers’ comp case.
A Potential Loophole: When You Can File for Unemployment While Waiting on a Decision in Your Workers Compensation Case
There is one situation where it may make sense to seek unemployment while your workers comp claim is pending.
After an injury on the job, your doctor may restrict you to light duty work. This means that you are unable to go back to your old job because of the injury, but that you are capable of performing a job at a lower exertional level. For example, a construction worker may be restricted to sedentary work (a sit-down job) after suffering a knee injury. If you are capable of performing work at the sedentary level, you may have a sufficient basis to collect unemployment benefits.
Collecting unemployment in this situation, however, presents a new problem Under Virginia workers’ compensation law, any income you receive, including unemployment benefits, is treated as income. So each dollar you receive in unemployment benefits reduces your workers’ compensation wage loss benefits by one dollar. You cannot “double dip” and receive both workers’ comp and unemployment together.
Contact Corey Pollard with Your Questions
Richmond workers compensation lawyer and Virginia Beach workers comp attorney Corey Pollard is here to help you following a work injury. We can help you understand how to maximize the value of your workers’ compensation claim and navigate all the issues that may arise during the workers’ comp claims process.
To get a free consultation, call us at 804-251-1620 or 757-810-5614 or use the contact form to your right. We’re happy to talk with you about your case and to send you a copy of our Workers’ Compensation Guide.