Workers' Compensation

Can I draw workers’ compensation and unemployment at the same time?

As a general rule the answer is no you cannot. Technically the workers’ compensation law isn’t that clear. North Carolina General Statute 97-42.1 says “If an injured employee has received unemployment benefits under the Employment Security Law for any week with respect to which he is entitled to workers compensation benefits for temporary total or permanent and total disability, the employment benefits paid for such weeks may be deducted from the award to be paid as compensation.” Because the statute says “may” rather than “shall” the North Carolina Industrial Commission has discretion in whether or not they give the workers’ compensation insurance company credit for the unemployment benefits.

If you have a choice you almost certainly want to take workers compensation checks instead of unemployment benefits. Workers’ compensation checks are tax-free and you may receive them, or portions of them, for up to 500 weeks. Unemployment benefits may be easier to receive but they are taxable and only good for a few months. Having said that if your workers’ compensation claim is denied and you have been terminated you should definitely collect the unemployment benefits. Even though your employer and their insurance company get a credit for anything you draw under unemployment it will help may your bills while the claim proceeds with the North Carolina Industrial Commission. So while you may have started drawing unemployment you need to have that stopped as soon as you begin to receive workers’ compensation checks.

We have not seen instances where the North Carolina Industrial Commission exercises its discretion and does not award defendants a credit for unemployment benefits paid to an injured worker. The general notion is that an employee should not receive a “double recovery” by collecting unemployment and workers’ compensation checks at the same time. In most instances that would result in an injured worker collecting more money than he or she would have if they were working. Thus it makes sense that a worker shouldn’t collect both. What do you do in the case of a highly paid employee? Because the workers’ compensation laws limit how much an injured worker can receive in weekly benefits there are some claimants who receive less than 66.6% of their pre-injury wages. Currently that threshold kicks in around $71,000.00 per year. If a person makes more than that their weekly compensation check will be less, on a percentage basis, than other workers receive. In these situations we believe it is fair for an injured worker to receive a combination of unemployment and weekly workers’ compensation checks as long as the total does not exceed 66.6% of the pre-injury wage. However, the North Carolina Industrial Commission has not consistently agreed with us in this point. Thus we caution any injured worker against attempting to draw weekly workers’ compensation checks an unemployment at the same time.

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