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North Carolina Workers' Compensation and Unemployment Benefits

CAN AN INJURED WORKER COLLECT BOTH WORKERS' COMPENSATION AND UNEMPLOYMENT BENEFITS UNDER THE EMPLOYMENT SECURITY LAW?


In order to make a claim for unemployment benefits, the applicant must state to the Employment Security Commission that he is ready, willing and able to work if he can find a job. If a workers' compensation claimant makes this assertion, it is of course inconsistent with a claim for benefits for total disability under the workers' compensation law. If an injured worker can work, he is not entitled to workers' compensation benefits for total disability. If an injured worker cannot do any work, he or she is not entitled to unemployment benefits. These claims are therefore somewhat inconsistent.

However, with respect to an injured worker who is capable of some work but unable to return to his former employment, it is conceivable that the worker could make a valid claim for both unemployment benefits and workers' compensation benefits. A worker who can do some work is entitled to unemployment benefits provided they are actively looking for work. In addition, that same worker is entitled to workers' compensation benefits for his partial disability when he can do some light duty work, for instance, but he is unable to return to his former employment.

The North Carolina General Assembly enacted a statute which prevents a worker from receiving a double recovery for claims under the Workers' Compensation Act and the unemployment benefits. If a worker has received unemployment benefits 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 workers compensation. With respect to an injured employee who receives unemployment benefits during any week with respect to which he is entitled to workers' compensation benefits for a partial disability, the unemployment benefits may be deducted from the workers' compensation award but only to the extent that the sum of unemployment benefits and workers' compensation payable for such weeks exceeds two-thirds of the injured employee’s average weekly wage.

Workers' compensation benefits made in payment for impairment of body parts or bodily function are not subject to reduction because of the receipt of unemployment benefits.

A tactic frequently used by insurance company defense lawyers to attack the credibility of an injured worker is to ask whether the worker has applied for unemployment benefits. The lawyer knows that if such benefits were applied for the worker would have had to certify that he is ready, willing and able to work. This statement is of course inconsistent with a claim for total disability either temporary or permanent. By exposing this inconsistency on the part of the injured employee, the defense lawyer will have achieved his goal of impeaching the credibility of the injured worker.

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