Can a worker who files a claim for unemployment and loses because of a justifiable dismissal then file for workers comp? Yes. And it happens all the time. The danger for employers is that the existence of the unemployment claim is not automatically known to the carrier or the New York Workers Comp board, causing many comp claims that could be defeated to be allowed at great expense, ultimately, to the employer.
The Act Of Filing An Unemployment Claim Contradicts Workers Compensation
Why would an unemployment claim lead to defeat of a later comp claim? This is due to the fact that many workers file a comp claim as an afterthought only after they have lost an unemployment claim. However, in filing the unemployment claim the worker alleges that he/she was working without problems and was unjustifiably dismissed, or was harassed into leaving. However, in the later comp claim, the worker alleges that lost time was solely due to an injury (and fails to mention the unemployment claim).
Such situations are far from rare, but most go unnoticed because the Board and the carrier are not alerted to the existence of a prior unemployment claim. An employer is the best source of information but many, if not most, employers think that such information is automatically available to the Board and the carrier. The power of computers is probably responsible for that misconception.
Employers Should Notify Carrier & Workers Comp Board Of Unemployment Claim
If a prior unemployment was disallowed prior to the comp claim, the employer has a simple method of preventing a claim disaster. Simply notify the carrier, with a copy to the Board, of the existence of the disallowed unemployment claim. Attach a copy of the decision disallowing the claim, plus a copy of the claim for unemployment. Send copies of the correspondence to the worker’s comp lawyer, if he has one, or to the worker, if not.
If more detailed information is required, a copy of the unemployment hearing transcript can be obtained.
Usually, that will be sufficient to defeat or limit an unwarranted claim for compensation. Why? Because the inconsistencies between the unemployment and workers compensation claims, with conflicting facts and histories, damage credibility, at the very least, or prove filing of a false claim – which is now taken very seriously at the Board since the passage of laws in the 1990s making false representations a felony.
Employers Have The Power To Significantly Enhance Their Success
Contrary to popular belief, lawyers do not willingly take on obviously dubious matters, which is why copying everyone as soon as possible with the conflicting documents is so effective. Employers have the power to enhance the chance of success by an order of magnitude – but only if they take the trouble to communicate.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
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