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42. Persons Receiving Workers' Compensation

Under appropriate circumstances, a worker may be eligible for workers’ compensation benefits under G.L. c. 152 and UI benefits under G.L. c. 151A.  The intersection of these two areas of Massachusetts employment law can have surprising results, so practitioners are wise to keep abreast of both. In simplest terms, “worker’s compensation applies to wage loss attributable to physical disability, not to economic conditions [,while] unemployment compensation applies to wage loss caused by economic conditions, not physical disability.”  See In re Mike’s Case, 73 Mass. App. Ct. 44, 48 n. 10, 895 N.E.2d 512 (2008) (internal quotation marks and citations omitted).  G.L. c. 151A, § 25 (disqualification for benefits) and G.L. c. 152, § 36B (UI benefits; eligibility) lay out the basic rules that apply when a worker might be eligible for both kinds of benefits.  

Receipt of workers’ compensation total disability benefits renders a worker ineligible for UI under G.L. c. 151A, § 25(d) because someone who is completely disabled does not meet the “able and available for work” test required by G.L. c. 151A, § 25(d). However, a worker who receives workers’ compensation benefits for specific injuries causing disfigurement, under G.L. c. 152, § 36, may still be able to work in some capacity and therefore could collect UI if able to work on a part-time basis, with a reasonable accommodation if necessary. SRH § 1583(C). Similarly, a worker who suffers only a partial disability for workers compensation purposes may be eligible to collect UI.  However, under G.L. c. 152, § 36B of the Workers Compensation Act, “[a]ny unemployment benefits received are to be credited against partial disability benefits payable for the same time period,….” See Nason et al., Workers’ Compensation, 4 Mass. Practice Series § 18.27, p. 99 (2003 ed. & 2015-2016 Supp.).  “Section 36B calls for a dollar-for-dollar reduction in partial [workers compensation] disability benefits, even though unemployment benefits may be taxable, [thus] reducing the employee’s protection.”  Id. at 100.  Further, “[a]ny employee claiming or receiving [partial incapacity workers’ compensation benefits under G.L. c. 152], §35 who may be entitled to UI shall upon written request from the insurer apply for such benefits.  Failure to do so within sixty days after written request shall constitute grounds for suspension of benefits under section thirty-five.”  See G.L. c. 152, § 36B(2).  

In contrast to the arguably harsh limitation of UI for workers suffering partial incapacity under G.L. c. 152, § 35, the law provides that a worker who has been on workers’ compensation total disability (i.e., received G.L. c. 152, § 34 benefits) for more than 7 weeks may have her base period for calculating her UI extended by the number of weeks she received total disability benefits, up to a maximum of 52 weeks.  See G.L. c. 151A, § 1(a). This allows: (1) calculation of the worker’s monetary eligibility for UI to reach back to the period of employment that occurred before the injury and receipt of workers compensation, as workers’ compensation benefits are not counted as wages; and (2) the worker who has recovered enough to engage in a work search to go back to work to collect UI benefits.

Note: A claimant who is totally disabled, laid off and who receives workers compensation total disability benefits for at least 7 weeks should consider not applying for UI until she is looking for work and a doctor certifies that she is able and available for at least part-time work of 15 hours a week (with or without reasonable accommodation). Otherwise, the time for claiming UI will run but the claimant will not be able to receive UI while she is totally disabled. Unfortunately, DUA takes the position that a claimant who mistakenly applies for UI in this situation cannot withdraw his claim. Because the base period is extended to include earnings up to a year prior to the receipt of workers’ compensation 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. 


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