What Other Benefits May Be Available If I Am Unable To Work?

Sometimes, in the course of a Workers’ Compensation case, other statutory benefits may be available. Examples include:

• Unemployment Benefits,
• Family Medical Leave Act,
• COBRA,
• New York State Retirement Benefits, or
• Social Security Disability.

Unemployment Benefits

In the event that you have a partial disability but your Employer will not allow you to return to your regular work or offer light work, you may be entitled to Unemployment Benefits.

Alternatively, if your doctors opine you to be totally disabled and you are receiving Workers’ Compensation benefits at the total rate, you are likely not eligible for Unemployment benefits.

While you can collect both Unemployment benefits and Workers’ Compensation benefits at the same time, you cannot collect more than your Average Weekly Wage from both benefits. For example, if your Average Weekly Wage is set at $500.00 per week, your unemployment benefits will go down if you are collecting more than this from both Workers’ Compensation and Unemployment. Your Workers’ Compensation is set first and your Unemployment benefits are adjusted accordingly. Therefore, you must report your Workers’ Compensation earnings to the Unemployment office.

Family Medical Leave Act

Generally speaking, the Family Medical Leave Act (“FMLA”) of 1993 provides eligible employees up to 12 weeks of unpaid, job-protected leave. FMLA can and often runs concurrently with your New York State Workers’ Compensation Benefits. While FMLA does not provide for a money benefit, it does protect your right to return to your job for the applicable period.

Typically, Employers that are subject to FMLA will provide written notice to injured workers of their rights at about the same time the Workers’ Compensation case is commenced. In addition to protecting your job while out on Workers’ Compensation, FMLA may also apply in situations of birth, adoptions, or serious health conditions of you or a family member.

COBRA

The Consolidated Omnibus Budget Reconciliation Act of 1985, known as COBRA, allows employees to continue the health coverage they had while working. COBRA covers employees, their spouses, former spouses, and dependent children when group health coverage would otherwise be lost due to certain specific events. Typically, COBRA comes into play when an injured worker is terminated or unable to return to work because of the Workers’ Compensation injury.

COBRA continuation coverage is often more expensive because the Employer no longer pays a part of the cost of employees’ coverage. Your Employer is required to give you notice of your COBRA rights.

New York State Retirement Benefits

If you are a member of the New York State Local & Retirement System, you may be entitled to a benefit if you are injured at work and unable to return to work. The benefits vary depending on the time you entered the State’s system and the type of work you performed. At MCV Law, we recommend that anyone in the State’s system become familiar with the benefits they may be entitled to by virtue of the State Retirement System. A good place to start is the New York State’s Comptroller’s website.

Social Security Disability

Social Security Disability Insurance (“SSDI”) is a part of the Federal Social Security Law. Injured workers who expect to be or are out of work in excess of one year may consider filing for SSDI. Generally, to qualify for SSDI you must prove that, given your age, occupation, and disability, you are unable to return to your past, relevant work and, given the same factors, you are unable to perform substantial, gainful employment.

If you are granted SSDI, you are paid a monthly benefit similar to what you would have otherwise received at your regular age of retirement. Your Workers’ Compensation payments are taken into account when calculating your monthly Social Security Disability benefits. This is called your “offset.” If you are on SSDI, it is important to keep the Social Security Administration up to date with regard to your weekly Workers’ Compensation benefit amount and any changes thereto.

Two years after your SSDI onset date, you become eligible for Medicare coverage. Medicare coverage is similar to health insurance. The monthly premium is deducted from your SSDI benefits. There is no Medicare coverage for family members. Care should be taken in deciding which plan best suits you and your family’s needs.

It is illegal to transfer your medical care from the Workers’ Compensation system to Medicare under the Social Security system. Often, when considering a Section 32 settlement, questions arise regarding future medical treatment. Typically, an allocation or a formal Medicare Set-Aside account is established when settling your Workers’ Compensation case to satisfy and protect the Medicare system.

At MCV Law, we guide our clients as to what other benefits they may be eligible for. In addition to the examples above, some injured workers have private disability policies or supplemental coverages, such as AFLAC.