Most injured workers do not realize that they have a right to have their workers compensation benefits reinstated merely becase they were laid off work from their job by their employer. If you were working under restrictions from a work injury at the time of lay off, you are automatically entitled to have your benefits reinstated. Others may also have thet right. Below is a summary of what you have to prove depending on the status of your benefits at time of lay off:
A. Presently Suspended Benefits Due to Light Duty Work
– If your compensation is presently in suspension by virtue of having returned to work at “light duty” or “modified duty” at wages equal to or greater than your time of injury wages, you are entitled to reinstatement of total disability benefits if you can show:
1. Your loss of earnings has reoccurred due to no fault of your own (i.e., layoff) and;
2. A residual physical disability continues that relates to the same area of the body that was originally injured.
– You need not prove a causal connection between the original work injury and present medical disability. This connection is presumed by virtue of the suspension which is the Employer’s admission that a medical disability exists.
– You don’t have to show your medical condition changed or worsened or reoccurred.
– The Employer can only reduce or eliminate liability by showing the availability of suitable alternative employment or by successfully filing a termination petition and proving a full recovery from the work injury.
– Statute of limitations – you have 9.6 years to file for reinstatement from the date benefits were suspended.
– Your benefits will be considered to be in suspension if a Supplemental Agreement was executed that does not contain the words “terminated” or” fully recovered” typed on it or if a judge issued an order suspending benefits. If no paperwork was completed after returning to work, then you are at least in as good a position as if papers were signed suspending compensation.
B. Presently Terminated Benefits
– Your benefits may have been terminated in one of three ways:
1. A judge’s order terminating compensation;
2. Your signing of a Final Receipt;
3. Your signing a termination agreement.
– If your benefits have been terminated, you have three years from the termination to file for reinstatement and you must prove:
1. Your physical disability has reoccurred (i.e., a change in your physical condition for the worse);
2. Your present disability relates to the original work injury; and
3. If you signed a Final Receipt you can have it set aside by showing you were not fully recovered at the time you signed it or that it was obtained through fraud or misrepresentation, intentional or unintentional (i.e., “you have to sign this to get your last compensation check.”), or that your disability has reoccurred.
C. Presently Unrecognized Claims
– If you have had a work injury whether or not you lost time from work that was not recognized as work related with a Notice of Compensation Payable, you have three years from the date of injury to file a Claim Petition.
– If as of the date of layoff you weren’t fully recovered from the injury, you might be entitled to total disability since there would be no job availability as of that date.
D. Presently Receiving Partial Disability Benefits
– If at the time of layoff you were receiving partial disability
benefits based on the fact that you were making less than at the time of your work injury due to some physical restriction from your work injury, you are entitled to reinstatement of total disability benefits upon layoff.
E. Presently Receiving Total Disability
– When your employer closes down while you are on
total disability you will continue to receive total disability up to the maximum period of time permitted by the Act.
F. Presently Suspended Benefits Due to Return to Work At
Time of Injury Position
– In light of recent new case law, an injured worker should be prepared to show that restrictions still exist from the work injury or that the work injury place the injured worker at an economic disadvantage when competing in the labor market. If the inability to find work after the layoff is shown to be related to the work injury, then the earning loss is attributable to the work injury and should be compensated for through workers’ compensation. Evidence of being turned down for jobs for reasons relating to the work injury should be documented. In addition, expert vocational testimony may be needed to help prove that the work-related restrictions place the laid off injured workers at a disadvantage in finding employment after the layoff.
– If you returned to your time of injury position under a suspension with restrictions and are subsequently laid off, you are entitled to a presumption that your disability (i.e., loss of earning power) relates to the work injury. If you have returned to work without restrictions, it will be your burden to show that the work injury is causing a loss of earnings.
Unemployment Compensation Beneits do NOT bar you from collecting workers’ compensation. You can collect both.
This is not intended to address all possible rights to workers’ compensation benefits. Furthermore, the law governing workers’ compensation is constantly changing. If you think you might have a possible claim, you should contact an attorney as soon as possible. This contains general statements regarding the law. You should have the facts of your case reviewed by an attorney before deciding whether or not to pursue a claim.