The Online Resource for Massachusetts Poverty Law Advocates

42. Persons Receiving Workers' Compensation

Receipt of workers' compensation temporary total disability benefits renders a worker ineligible for UI because someone who is completely disabled is not "able and available for work." G.L. c. 151A, § 25(d). However, a worker who is receiving partial disability workers' compensation benefits may still be able to work in some capacity and therefore would be able to collect UI if able to work on a part-time basis, with a reasonable accommodation if necessary. SRH § 1583(C).

In addition, a worker who has been on workers' compensation total disability for more than seven weeks may have her base period extended for the period of disability up to 12 months. G.L. c. 151A, § 1(a). This will allow the worker who has recovered enough to go back to work to collect benefits while engaged in a work search.

In a case where a seasonal worker attempted to have his off-season UI benefits included in his earnings for purposes of increasing a workers compensation award, the Appeals Court declined to permit him to do so. In re Mike's Case, 73 Mass. App. Ct. 44, 45, 895 N.E.2d 512 (2008).

Note:  A claimant who is totally disabled, laid off, and eligible for workers' compensation, should consider not applying for UI until he or she is looking for work and a doctor certifies that he or she is able and available for at least part time work of 15 hours a week (with or without reasonable accommodation). Otherwise, the claim will run but the claimant will not receive any benefit payments. Unfortunately, DUA takes the position that a claimant who mistakenly applies for UI in this situation cannot withdraw his or her claim.

Because the base period is extended to include earnings up to a year prior to the receipt of unemployment benefits, this is one situation where the rule about applying for UI as soon as possible after leaving work may not be to the claimant’s advantage.  Before making a decision, the advocate should consult with a member of the Employment Rights Coalition.