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Can a claimant collect unemployment benefits and represent that he is ready and willing to work and simultaneously collect disability benefits claiming he is unemployable? Yes, according to the Commission in Lewis v National Vendors, 2013 Mo. WCLR Lexis 191 [2013 Mo. WCLR Lexis 191] (Sept. 26, 2013).Section 287.170.3 [287.170.3] disqualifies an employee from temporary total disability benefits "during any period of time in which the claimant applies and receives unemployment compensation." There is no corresponding statutory provision to prohibit worker's compensation benefits and unemployment benefits when the claim is for permanent total disability. The Commission affirmed the ALJ finding awarding PTD benefits while claimant also received unemployment benefits. A dissent argues strict construction compels this finding although it produces an illogical result.The permanent disability claim against the second injury fund was based on the premise that claimant had a trigger finger injury that somehow combined with prior injuries that rendered him unemployable. It is not clear the Fund offered any medical evidence from its own expert challenging the any synergistic effect. Claimant was a career employee and worked about another year until his employer left the state and then collected unemployment benefits. The ALJ finds that claimant was not really competing in the labor market for the year after his injury because he was "heavily accommodated." Claimant settled his primary case against the employer for a 15% disability of the thumb which required a trigger finger release. The 55-year old claimant based his claim of total disability on a "convoluted and complicated" involving multiple previous work-related settlements primarily involving the arms.The second injury fund defended the case that claimant had pre-existing disabilities but they were not measurable because some of the conditions were not at MMI at the time of the primary injury. The ALJ concluded other evidence in the record established a measurable disability. The Commission noted the employer had settled the case and then criticized the employer for delays in treatment “for years due to tactics employed by the employer."
Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.
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