Work Injuries and Unemployment

Dec 20, 2021 | Employment Concerns

Work injuries and Unemployment – If you’re injured, off work, and you need income, you might wonder if you should try to get Workers’ Compensation or if you should get Unemployment.

If you’re off work due to a work injury and you have restrictions, in general, you will receive more from Workers’ Compensation than through Unemployment which tends to pay less. Another big difference is that Unemployment in certain circumstances can be taxable, and Workers’ Compensation benefits are not taxable.

Work Injuries and Unemployment

Workers’ Compensation pays for lost wages if you’re off work due to an injury. It’s important to know that there are two big-time frames: before the doctors have discharged you, called Maximum Medical Improvement (MMI), and after MMI.

What should I apply for before MMI?

Before MMI, if you’re off work, you have restrictions, and you can’t do your job because of those restrictions, in general, you’re going to get temporary disability benefits, which is 2/3 of your average wage, and if you’re at work but earning a lot less you’d get temporary partial disability, which is also 2/3 of the lost wages.

However, if you’re not yet at MMI and you are off work but you don’t have restrictions and the doctor said you can go back to doing your regular duty, at that point, you can and should apply for Unemployment.

What should I apply for after MMI?

After MMI, if you’re off work with or without restrictions, you should absolutely apply for Unemployment. Wage loss under Workers’ Compensation after MMI is very difficult to get, it’s called permanent total disability, and you have to show that you are unable to earn any wages in any position at any place with any employer. For Unemployment, all you have to do is show you’re off work, and it wasn’t your fault.

In general, we strongly recommend if there’s any chance of you being able to get wage loss benefits under Workers’ Compensation before MMI while you have restrictions, don’t get Unemployment, instead get the Workers’ Compensation lost wages and save your Unemployment for after MMI when you’re off work.

What happens if I don’t apply for Unemployment on time?

There are 2 important time frames in terms of Unemployment. Number one, if you’re off work with restrictions getting lost wages before MMI, and then MMI comes and you’re shut off from temporary disability, you need to apply for Unemployment within 30 days of getting the final admission of liability, otherwise you may not get your full benefits.

Typically, when you apply for Unemployment, the government looks back to see how much wages were reported to you in the previous quarters, and based on that, they will determine how much of a benefit you can get.

If you have been off work for a long time due to your injury, you would get very little benefit, but if you’re off work with restrictions getting Workers’ Compensation and then apply for Unemployment after MMI within 30 days of the final admission, that period where you were off work doesn’t count, and they go back and look from where you left work, and you get the full benefits based on your wages pre-injury.

The second important time frame, the look-back period we just mentioned, doesn’t apply if you’ve been off work for three years or more due to your injury. In that case, they look from the day you applied.

What should I do if I’m told I can’t apply for Unemployment?

We’ve had clients trying to apply for Unemployment, and a clerk tells them they’re not entitled to it, and they can’t apply. You can’t allow anyone to tell you verbally that you can’t apply because if they’re wrong, we can’t appeal that.

If that happens, you need to ask for their name and number and tell them you appreciate their legal advice (which they’re not supposed to give), but ask to process your application anyway, and if you’re not permitted to apply to ask them to deny it in writing, that way we can appeal that denial.

Do not take no for a verbal answer about whether or not you get to apply, they may be right about you not being entitled to any benefits, but they can’t tell you that you can’t apply.

Additional Resources:

Understanding Unemployment & Workers’ Compensation In Colorado

Should I Apply for Unemployment if I’ve Been Injured on the Job?