It is not unusual for injured workers to call and ask about vacation pay issues following a workplace injury.  I just handled a case involving one of these questions.  After the claimant was injured, the employer told him they weren’t responsible and refused to report the claim to the workers’ comp insurance company.  The worker was then forced to use his vacation pay and sick pay to cover his lost wages.  The question was:  after the workers’ compensation claim was established, could he receive temporary income benefits for the same time period that he was paid his vacation pay and sick pay?

 

            Rule 129.2 controls in this situation.  That rule indicates that if the employee voluntarily elected to receive vacation or sick pay, then he could not get temporary income benefits for the same time period.  But, if the claimant did not voluntarily elect to receive vacation or sick pay, then he can get both.

            Sometimes the claimant will choose to receive vacation and sick pay because it pays them 100% of the lost wages.  Temporary Income Benefits only cover 70% of lost wages. 

            One of the bigger issues here is the meaning of “voluntarily” and “elect.”  There is no real indication in the rules or case law.  In other situations with similar language, the Division has found that an election is a choice between something.  If that reasoning prevails, then injured workers who find themselves in this situation should get both, because they were not offered a choice.  When the employer refuses to report the claim and delays benefits, then vacation pay and sick pay are the only options.  There was no other choice.

            Things worked out nicely for my client.  The carrier agreed to pay him all of the temporary income benefits that he would have been owed if the vacation pay and sick pay had never been paid.  He got both, but it took knowing the law and how to manipulate the meanings of the words in comparison to other statutory and rule provisions to do it.