If I have a workers’ comp injury, can I still claim long term disability?

Sometimes we are asked the question if my client has a workers’ comp injury, are they still allowed to file a claim for long-term disability or disability retirement? The answer to that question is they certainly should check because it may be possible to proceed with both claims or even all three claims.

Here’s an example…

  • Ed worked in a sawmill that had a lot of older equipment.
  • While he was working one day, his coworkers began to goof around.
  • Though Ed did not participate in the horseplay, his hand slipped on the saw, and unfortunately, the mechanism that should have protected him from the blade had been altered, causing his hand to be severely mangled from the blade.
  • Ed filed a workers’ comp claim; however, for some reason, the HR department did not notify Ed that he could also file a claim for long-term disability.
  • His employer disputed the validity of the workers’ comp claim since there were employees goofing around, and they assumed Ed had been involved.
  • Depositions were taken, and in the deposition, the defense attorney asked Ed if he had filed a claim for long-term disability. This was the first Ed had heard that this was a possibility.
  • Afterward, Ed investigated and learned that he could and should file a claim for long-term disability. Luckily, it was still within the time requirements, so Ed filed a claim for long-term disability.
  • Some time passed, and since the workers’ compensation claim had been disputed by his employer, he was not receiving any money.
  • However, since he filed the long-term disability claim and he was very clearly injured, he began receiving money from the long-term disability claim, which was a blessing.

If your client has a workers’ compensation injury, don’t assume that they cannot file for a long-term disability claim. You should immediately obtain their policy and check the policy.

It is possible that a long-term disability policy could exclude coverage for injuries caused in the workplace that are covered by workers’ compensation, but many of them do not. It is also possible a disability retirement benefit could be in place in connection with a pension or other type of retirement benefit.

By filing a long-term disability claim or a claim for a disability retirement benefit, your client can receive support while they are waiting on their workers’ compensation claim to be resolved.

One caveat…

There are often offsets, so if a long-term disability claim has a provision offsetting any money your client receives for workers’ compensation, they will need to keep that in mind.
Also, in many workers’ compensation statutes in various states (for example, in Alabama), there is an offset in the statute that offsets long-term disability benefits. If the employee pays for the long-term disability benefit, then the workers’ compensation benefit won’t offset their long-term disability benefit. If the employer paid part of all, then there will be some offset. However, generally, there should be a resolution of some sort of pro rata sharing of the benefits, so that there is not a problem.

If your client has a workers’ comp injury and their HR department claims that they cannot file a long-term disability claim, ask to see the plan document because a long-term disability claim could provide the much-needed support your client needs in a very difficult situation. Contact us today if your client has an ERISA long-term disability, short-term disability, life insurance, or retirement benefits claim.

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