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Can I file unemployment if my works-comp reached the said MMI and not released yet from having disability?

Laguna Hills, CA |

My lawyer said that they cannot do anything now that I reached MMI and paychecks had stopped. open case and still running.My case is not yet close from partial disability to total disability due to I can't afford to have a back surgery for leaving everything to my wife having 3 kids and to make a living. Can I file unemployment? SSI? Please advise what should we do...

Attorney Answers 5


  1. you have a lawyer. You should be asking him this question. He knows you and your situation more than any of us on AVVO.

    Having said that, if your doctor is saying that you are still temporarily totally disabled, how are you going to certify that you are ready, willing AND ABLE to work for unemployment benefits?


  2. If you think your Attorney is dumb, you should get another one. You should not try to sharp-shoot the recommendations that (s)he gives you by posting here. I will tell you that EDD will pay you SDI benefits if you have a doctor who states that you are unable to work. They will also pay the difference between the PD and TTD rate, but may take it from your ultimate recovery in the end as a Permanent Disability Advance. However, the SDI benefits are limited to one year, so you need to get it all together fairly quickly. That may or may not work for you, but the ultimate goal is to get you back to work. If you increase your benefit rate and don't lose the Apartment, it may not matter that there is not 5,000 left on your settlement. If you do not have back surgery and get back to work within a year, you WILL most likely lose everything.

    We give free general concepts to be helpful, but you should give ALL your facts to a licensed Attorney in your state before you RELY upon any legal advice.


  3. You should apply for SD but not for unemployment. As Mr. Borah stated unemployment you are stating that you are able to work but cannot find work however based on the facts you provide you are still TD. Here are the options that your attorney should be offering you instead of strangers on AVVO (1) have your PTP or QME P&S you and state surgery as future medical and that way you can get PD; (2) apply for SD but you they will most likely take from case due to the fact that you are most likely beyond 104 wks limit. I would recommend you talk to your attorney and demand options if not look for a new one. Good LUck!


  4. You've Reached Maximum IMprovement and your company refuses to put you to work?

    YES! YOU ARE UNEMPLOYED. You show up and work and ask for work, they send you home, AND YOU IMMEDIATELY APPLY FOR UNEMPLOYMENT because you ARE unemployed!

    I'm really completely disappointed with your attorney... I help, I INSIST my clients apply for Unemployment Insurance the day the doctor sends them out of the office with no return appointment (because is takes about 3 weeks to 'kick in').

    ON THE UNEMPLOYMENT APPLICATION: do NOT say 'yes' to the 'are you disabled' question!!

    That question should be phrased 'are you 100% disabled" and NO YOU ARE NOT 100% Disabled (not until the Workers Comp Judge makes a Finding & Award of 100% permanent disability).

    You are PARTIALLY permanently disabled... 85% of the workforce has some form of Partial Disability, and they can and do work...

    HERE'S THE EDD WEBSITE, APPLY ONLINE TODAY! https://eapply4ui.edd.ca.gov/ there will be a question about income; report here the $230/week the insurer sends (if the insurer has begun Permanent Disability advance payments...which it might no have yet).

    AND PLEASE THINK ABOUT A NEW ATTORNEY, one who knows when you are unemployed and how to fill out the UI Application properly. Geez Louise!!


  5. I agree that the answers to these questions require a lot more information than can be presented here.

    Here are some questions that I think you might want to ask your attorney:

    1. Are you contesting this MMI report or are you relying on it? Why? If you're relying on it can you make a demand on my behalf for Permanent Disability Advances under Labor Code Section 4650(b) and any penalties that accompany them?

    2. I don't want to delay and complicate my case and possibly reduce the value of it, but am I likely to succeed in an action for Social Security Disability?

    3. Should I apply for State Disability Insurance?

    With regards to Unemployment Insurance I would say you should probably apply for it as a last resort. One of the requirements for being eligible for UI is that you certify under penalty of perjury that you are willing, able, and available to perform your "usual and customary occupation" however what "usual and customary occupation" is for purposes of UI varies based on a case-by-case basis. In applying for UI you're not saying your able to do any and all jobs available in California, you're just saying that there is a substantial labor market for work that you are able to perform but that you cannot find within this substantial labor market of work you can do. This is consistent with your Workers' Comp claim so long as the medical evidence from the WC claim does not say you are so disabled there is no WC claim.

    http://www.judgeobrien.com/ui/index.html?p-b-462.html

    Don't apply for Social Security Disability or SSI at the same time you apply for UI though because that would be inconsistent.

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