Your temporary total disability check is processed each week by the workers’ compensation insurance carrier, and the check is usually processed on the same day, e.g. Friday, each week. As a result, you can anticipate consistently receiving your temporary total disability check around the same day each week.
If you do not receive your weekly check from the workers’ compensation insurance company, you may want to wait a couple of days before contacting your workers’ compensation attorney. Often a delay is caused by the insurance company having a glitch in processing the check for the week or it may simply be a delay caused by the postal service. If you have not received your check within a couple of days of the date it is expected, contact your workers’ compensation attorney’s office to let them know the check has not arrived. Your attorney will contact the workers’ compensation insurance claims adjuster to determine the status of your temporary total disability check. The problem is usually quickly corrected and the check arrives within a couple of days.
Although the delay can is frustrating and may even impact your ability to pay your bills, it is rare that an insurance company intentionally delays the payment of temporary total disability. However, if the check has not been received in a reasonable period of time, your workers’ compensation attorney can file a motion with the Executive Secretary’s Office of the North Carolina Industrial Commission requesting a 10% late penalty be assessed against the employer. The Industrial Commission is obviously concerned if an employer or their insurance company is not paying workers’ compensation checks on a timely basis. As a result, contact your attorney if there is ongoing problem with receiving your temporary total disability checks.
You cannot receive unemployment and workers’ compensation payouts or benefits at the same time. The principal behind workers compensation is that you are getting reimbursed for the wages you are missing because you are injured. Therefore, you should not be receiving any unemployment payments because then you would be theoretically getting paid two wages at one time.
Trying to collect unemployment can also affect the credibility of your workers compensation case. In theory, you can claim workers compensation because you are unable to work because of a job related injury or illness. The idea is that while you would like to work but are physically unable to do so. The policy behind employment compensation on the other hand is that you are fully willing and ready to work, however you are unable to find a paying job. So if you collect unemployment while you have an outstanding workers compensation claim it is almost like telling one government agency that you are physically ready and willing to work, while simultaneously telling another government agency that you should be collecting money because you physically cannot work.
The only exception to this rule would be if your workers compensation claim has been denied, yet you are unable to work in your old job because of your injury so you were forced to resign. If you are applying for new jobs that would be considered light work, or less physically demanding than your old job, and you are still unable to find work, then you may collect unemployment while collecting workers compensation benefits. This however is not very common and collecting unemployment can potentially have a very detrimental effect on your workers compensation case. So as a general rule you may not and should not collect unemployment while also collecting workers compensation benefits.
If your employer fires you after filing a workers’ compensation claim then you would likely have a REDA claim against them. So what exactly is a REDA claim?
The Retaliatory Employment Discrimination Act (REDA) is the statute that gives the Employment Discrimination Bureau (EDB) of North Carolina its enforcement power. REDA created an umbrella agency that could handle various employment complaints from workers’ compensation and whistle blower issues, to protecting those that suffer from certain health problems while in the workplace. When an employee files one of these various types of complaints, their actions are considered “protected activities.” This means an employer cannot retaliate if their employee files one of these complaints.
Simply put, REDA makes it possible for employees to file complaints regarding one of these activities without the fear of facing any type of retaliatory action by their employer. Therefore a REDA complaint is filed when an employer has retaliated against their employee because the employee filed one of these protected complaints.
REDA is most often applied when an employee files a workers compensation claim against their employer. If the employer decides to in some way retaliate against the employee because of the claim, or the threat of a complaint, then the EDB, acting under the authority of REDA can sue the employer for the retaliatory action. According to REDA, retaliatory action can range from firing an employee to simply not allowing them to perform an alternate job or work the hours the employee’s doctor regards as appropriate. If an employee believes that he or she is the victim of this type of retaliatory action, then they may file a complaint with the Employment Discrimination Bureau.
The EDB then investigates any complaints filed and decides whether to pursue the complaint. The important distinction for a REDA claim is that it is only viable if there is a retaliatory action. A person who simply has a dispute over workers compensation benefits, such as which doctor they choose to use, etc. would not file a REDA claim. A REDA claim will only be prosecuted if the employee can show that they were retaliated against because of some other claim or action.
The timeline of a REDA claim is that first there is an issue that makes the employee file a general complaint, this could be a workers compensation complaint, a whistle blower complaint or an OSHA complaint. Filing this initial complaint is viewed as a “protected activity.” If an employer then decides after an employee has filed a complaint or has threatened to file a complaint in one of these protected areas to retaliate against the employee, then a REDA complaint may be filed. Retaliation could mean firing the employee, taking away certain benefits, or demoting the employee. The Bureau will then investigate the complaint and decide whether or not to prosecute that particular claim. A REDA claim will not be valid if the employer can prove that their action would have occurred regardless of the employee’s actions. For example if the employee would have been fired before filing a workers compensation complaint because of past behavior, he or she can still be fired because of these previous issues. Even though the employee has participated in the “protected activity” of filing a workers compensation claim, this will not shield them for being fired for other reasons.
What’s the purpose of the Means Test?
The basic purpose of the Means Test is to determine whether a Debtor is eligible to file Chapter 7 bankruptcy. Along with other supporting requirements, the Means Test plays a major role in Chapter 7 bankruptcy. The Means Test also tells us whether a Debtor would need to pay back some of their debts in a Chapter 13 bankruptcy if they do not “pass.” Simply put, the Means Test determines the Debtor’s monthly income by taking the Debtor’s household’s gross income and subtracting qualified deductions. By doing this, we can decide whether the Debtor would need to be looking into filing a Chapter 7 bankruptcy or Chapter 13 bankruptcy.
There are over 60 different factors considered when determining the Means Test but two factors are more prominent than others. That is the household size and the household income. For purposes of this blog post we will more carefully examine how the household size is determined when looking at the Means Test.
Who’s considered a household member?
This, of course, depends on the Debtor’s living situation at the time of filing and also looking forward. Generally speaking, if the Debtor has a larger household, it could mean the difference between passing the Means Test to qualify for a Chapter 7 bankruptcy or, instead, having to do a Chapter 13 bankruptcy. The more dependents or household members you have, the greater the state of median income for a family of that size. However, a larger household can also work against a Debtor by potentially adding more income and skewing the Means Test. It’s important to seek the help of an experienced bankruptcy attorney to help you determine your household size, but keep the following in mind.
A household does not simply mean “husband, wife, kids.” A household consists of all the people who occupy some type of housing unit, whether it’s a house, apartment, etc. The term household carries broad definitions, but the courts are going to likely focus on if the additional household member is contributing income to the home and paying out expenses.
You should compile some type of income and expenses report within your household to determine what income is going into the home and towards what expenses. It doesn’t need to be anything fancy, just some type of report on paper so you are able to visually see how they bills are getting paid and by which household member’s income. This is especially important for those with unique household units.
There is a difference between household members and dependents. For example, your 13-year-old daughter would likely be considered a dependent and household member. Where it often gets tricky are for those who may have an 18 year old child or older still living at home. The courts will likely argue, the child is 18 years old and should no longer be considered a dependent, especially if they are working and paying their own bills. So let’s say for example this 18-year-old child was working and paying their own bills, but still living as part of the household. It is possible he or she could be included as part of the household for the Means Test but we would have to list his or her income and expenses. You may also have a situation where an older relative may live at your home and contribute no income at all.
There are situations where an individual may be included as part of your “economic unit” but not as household member for purposes of the Means Test. For example, you may have a roommate who contributes towards expenses only and therefore could argue that person is a part of your economic unit only. The situation changes however if you are cohabiting with the person as a family unit, so discuss your living situation with your attorney. There are numerous living situations that could apply to your situation but you should let a qualified legal counsel help you decipher your household size and how it will be viewed on the Means Test.