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Workers’ Compensation Handbook

VI. You May Be Entitled To More Than Just Workers’ Compensation Benefits

Unemployment Compensation

Unemployment compensation benefits are available to employees who have lost their jobs unless the job was lost as a result of the willful misconduct of the employee. If you are injured at work, given work restrictions by a physician for modified duty, and your employer does not have you return to a modified duty job, you may sign up for unemployment compensation. You must advise the unemployment compensation office that you are ready, willing and able to work within your physical restrictions. If you receive unemployment compensation benefits and subsequently receive workers’ compensation benefits for wage loss, your workers’ compensation benefits for wage loss will be reduced by any unemployment compensation benefits you received. Both unemployment compensation officials and the workers’ compensation carrier should be advised of the amount and receipt of benefits.

Sickness and Accident Benefits, Short Term Disability and Long Term Disability Benefits

You may be entitled to Sickness and Accident benefits while your claim for workers’ compensation benefits is in litigation. There may be a credit taken later against workers’ compensation benefits, but it may be a good idea to apply for this benefit. Many union contracts make provisions for this type of benefit even for injuries that are work-related. Some employers offer short or long term disability programs to employees who are unable to work. If you are disabled, you should check with your union representative to see what options are available to you. Often the disability insurance carrier requires to be paid back amounts once workers’ compensation is received.

Social Security Disability

If you have a physical condition or a combination of physical conditions that prevent you from working, you may be entitled to Social Security Disability benefits. Your condition or conditions do not have to be work-related to receive this type of benefit. You must anticipate being disabled from any work for a period of at least 12 months. You must also have a prior earnings record with the Social Security Administration in order to qualify for benefits.

Application for benefits can be made by filling out a form with the Social Security Administration office in your locality. You may also apply online. You should apply for Social Security Disability benefits if you anticipate being off work for a year or more. The initial application is often denied. If you are denied, you only have 60 days to file an appeal. You should appeal a denial and request that a Social Security Judge review your case. When deciding your case, the Social Security Judge will consider your physical conditions, your age, and the types of jobs that are available to a person with your educational training and background.

After your initial denial, it is advisable to contact an attorney to handle your appeal.

Americans with Disabilities Act

The Americans with Disabilities Act provides injured or disabled employees with rights, which are enforceable in Federal Court. If an employee has an impairment or record of impairment either from a work injury or non-work related injury, the Americans with Disabilities Act obligates the employer to offer a position to the employee if the employee can perform the essential functions of the job. The Act also obligates the employer to make a reasonable accommodation or minor adjustment to the job so that the employee can perform the essential functions of the job. If this reasonable accommodation creates an undue hardship on the employer then the employer is not required to change the job so that the employee can do the job.

Clarifications have been made by the Courts in regard to the Americans with Disabilities Act, in that a disability must affect the person’s activities of daily living. Also, an accommodation does not have to be provided if such accommodation would violate the seniority rights of other workers, whether through the collective bargaining process or an employer’s seniority system. If you believe that you may have rights under the Americans with Disabilities Act, you should contact an attorney experienced in this area of the law.

Family and Medical Leave Act

The Family and Medical Leave Act provides employees with up to 12 weeks of unpaid leave during any 12 month period for the birth of a child, the adoption of a child, the acceptance of a child for foster care, to care for a spouse, child or parent who suffers from a serious health condition, or for your inability to work due to a serious health condition. Serious health conditions are defined as any condition requiring either inpatient care at a hospital or inability to work and two or more treatments by any healthcare provider.

You can choose to take the 12 weeks of unpaid time all at one time or you can break it up in different time segments. Employers are not required to pay wages during this time period, but they generally cannot terminate your job, terminate your health and pension benefits or otherwise discriminate against you for taking the leave.