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Unemployment Due to Physical Inability to Perform Job New Jersey

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  • Unemployment Due to Physical Inability to Perform Job New Jersey

    I have some questions about collecting unemployment that I need some advice on. I'll get straight to the question and then give the details. If you are out on Workman's Comp/Temporary Disability because of an injury that occurred from your job and a doctor tells you that cannot physically perform that specific job because the injuries will just continue/get worse, can you collect unemployment because of this?

    My wife is currently recovering from an injury that occurred from an automobile accident (torn labrum, rotator cuff, biceps tendon). Of course, the auto insurance company (GEICO) sent her for an Independent Medical Examination (IME) and their doctor said that she just shouldn't life anything heavy and that surgery wasn't required to fix the injuries, despite acknowledging the tears on the MRI. So now we are tied up in PIP Arbitration case to get the treatment for her injuries covered by GEICO. My wife took a job prior to the surgery as a Special Education Teacher at a private school for special needs children. Prior to taking the job, she informed the employer that she would need this surgery and that it may effect her ability to do the job. The employer said they were not concerned.

    She was hired in July and we got a call that she was scheduled for surgery at the end of August, prior to the school year starting. She advised her employer and again they were not worried, even though she gave them a doctor note with restrictions on lifting, pushing or pulling. She had the surgery and was working and going to therapy and all had appeared to be going well until her shoulder started swelling and becoming so tender that her physical therapist would not see her until the orthopedic doctor looked at it. She saw him and determined it was another injury to the pectoral muscle and not the surgically repaired muscles. We weren't sure what had caused it.

    After a week without work due to Hurricane Sandy, her shoulder felt much better and the pain and swelling went away. She went back to work and the swelling and pain came back because one of her students had become increasingly violent on a daily basis, attacking her and the other students. She brought her concerns to the administration, but was told to "avoid the child" and "make it work" (that's a whole 'nother story). She toughed it out, and after 4 days off for Thanksgiving, the pain and swelling went away again. She called her doctor and he agreed with us that the nature of her job is what is preventing her shoulder from healing and that she just isn't physically suitable for this kind of work. For now, we have filed a claim for Temporary Disability that was granted, but have been advised by our PIP Arbitration attorney that this needs to be a workman's comp case and have started a workman's comp claim. Given that the doctor has advised her not to go back to this job, is that a useable reason to collect unemployment while she looks for a new position that she can perform?

    She spoke with employer about this and they refuse to let her go and told her she must resign. If she resigns, wouldn't she be ineligible for unemployment then?
    Last edited by Karl Hungus 53; 12-11-2012, 10:17 AM.

  • #2
    I would be careful about any "UI always does ..." statements, but I can say that quitting/resigning always reduces the chances of getting UI. And at the end of the day, UI gets to make the "does the employee get UI" decision. Not the employee, the employer or anyone on this or any other website.

    The employer can say someone must resign or must flap their arms and fly around the building like a bird, but saying something does not make it true. At the risk of stating the obvious, the employee should not resign. If the employer wants to fire her, or lie about the nature of the termination, their decision, but the employee should take no actions designed solely to help the employer at the expense of the employee. Such as resigning.

    I am not a FMLA expert, but hired last July means (to me anyhow) that FMLA is off the table. I am not a NJ expert, but I would be surprised if there is a NJ specific leave program that covers this. If I am wrong, another responder should please jump in. Which means that the employer can legally terminate the employee.

    Now whether a termination is legal and whether the employee is eligible for UI are two very unrelated issues. An illegal termination is one that breaks an actual law, and based on what you have said, the termination sounds legal. However unless the employee is foolish enough to resign AND if the employee is actually capable of working, this sounds like something UI would look favorable on. Of course, NJ-UI gets to make that decision, not me.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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    • #3
      It isn't clear if this has been accepted as a WC claim yet and what injury exactly she is alleging. Typically, there must be a discreet event which causes an objectively definied injury. WC does not cover if you have a pre-existing condition which just doesn't heal because you are working or general, "it hurts when I work" type situations. If this does somehow get covered under WC, that would be your exclusive remedy. She would receive benefits under the WC system and not be eligible for unemployment.

      Your state is unique in that they do have a state disability plan. The public schools are exempt, but as she works for a private school, she should be eligible. It sounds like she has already applied for this and been granted. If so, she would not be eligible for double benefits. That state plan will cover her while she is medically unable to work.

      She should start looking for another job now in either case.
      Last edited by ElleMD; 12-12-2012, 06:44 AM.
      I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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      • #4
        Here's a link on the N.J. state disability income program - it's for sickness & injuries not caused by the job.

        http://lwd.dol.state.nj.us/labor/tdi/tdiindex.html
        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

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