What happens when you are severely injured at work but are not deemed 100% disabled from that injury alone – yet can’t find a job because of the injury and other disabilities? For injured workers with prior injuries and a qualifying Subsequent Industrial Injury (“SII”), they may be able to obtain benefits from a Subsequent…

Beginning January 1, 2023, peace officers, fire fighters, and other qualified public servants in the State of California (and the attorneys who represent them) will have new tools to ensure that workers’ compensation claims administrators fairly and timely handle claims involving legal presumptions for these employees. A “presumption” effects the burden of proof. Typically, an…

As my partner Marc S. Wiesner outlined in a prior post, time missed at work due to a workplace injury is compensated by a benefit called Temporary Disability. Per California Labor Code §4653, this in generally calculated at 2/3rds of the injured workers Average Weekly Wage. However, certain employees in the State of California are…

I know, it’s mind-blowing, isn’t it? Your work comp doctor, who the insurance may have sent you to, requests treatment but the doctor tells you you have to wait. Why isn’t the treatment immediately available? Why can it be denied and you don’t hear about it for days or weeks after? Welcome to the world…

Imagine being injured so badly at work that your doctor tells you to stay home. Or, your doctor gives you work restrictions and your employer cannot meet them. You should get paid until you can return to your job or another job. Right? While that makes logical sense, unfortunately, few things in a workers’ compensation…

As with many things in law, the answer is, it depends. The more cynical answer is, yes, but the insurance controls the doctors on the list. So, how good is that list going to be? We call these lists Medical Provider Networks or MPNs. Each workers’ compensation insurance carrier, administrator, or self-insured employer (we will…

What is a Medicare Set Aside ("MSA")? How does an MSA affect my Workers’ Compensation case?

A MSA is an estimate of your future medical costs due to your Workers’ Compensation injury. While these are not required in most cases, injured workers who are Medicare eligible (30 months from full retirement age) or those on Social Security of any kind (SSDI, SSI, etc.) are required to have a MSA before they can settle their future medical care with the Workers’ Compensation insurance carrier. This is so that the federal government is not left "holding the bag" for your medical care after the case is over.

Once a valid MSA becomes part of an approved Compromise and Release (total Workers’ Compensation settlement document), that part of your Workers’ Compensation settlement must be put into a separate, interest-bearing bank account. You can then use that account for any medical care you need in relation to your workplace injury. Once that account is properly exhausted, Medicare will treat your industrially injured body parts.

Contact us today if you need help with your MSA.

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Insurance carriers love to "hide the ball" when paying your wages while you are off work recovering from your injury. Whether its not including your overtime or using time off from a planned vacation to deflate your earnings, this guide can help you figure out if the insurance is underpaying you.

The Law

Labor Code § 4453(c) provides four options for calculating your Average Weekly Wage (AWW). In layman's terms, they are:

1) Your regular, full time earnings (full time being anyone working more than 30 hours per week and at least 5 days per week);
2) If working two jobs, the average earnings in a week for both jobs;
3) For inconsistent earners (e.g., part time, seasonal, etc.), the average weekly earnings from the last year;
4) A catch all - any combination of any of the above methods if it ends in a "fair" result.

Generally speaking, the courts should stop once the reach a method that works. Meaning, most full time workers should be entitled to wage loss in accordance with #1 above.

Method #2, the Insurance Carrier's Friend

Life happens. People get sick, go on vacation, have to care for a family member, or take a mental break from working all together. NONE of this bears on someones earning capacity. However, taking the 52 week rolling average of most peoples' earnings will result in a lower average weekly wage (AWW). This is because, as expected, a two week unpaid vacation drags down the average for the rest of your earnings.

Additionally, some insurance carriers will flat out IGNORE other forms of payments or wages like overtime, bonuses, car allowances, lodging, etc. While not all "fringe benefits" (no, Johnny, you don't get a bump in your wages because you get free breakfast at the company cafeteria every morning) are included in wages calculations, it is in your best interest to push for as many inclusions as you can.

Other Considerations

Now that you have an idea as to what your Average Weekly Wage (AWW) is, why is it that your Temporary Disability Indemnity (e.g. wage loss) check is much lower than both your gross and net earning. Are the insurance carrier's underpaying everyone?!?

Unfortunately, that's not the case. In California, lost wages due to an injury are paid at 2/3rd of the injured worker's AWW (with some exceptions for governmental employees). Additionally, there are hard caps on earnings and lost wages. For instance, in 2019, the maximum Temporary Disability rate was $1,251.38. Accordingly, if you earned more than $98,000 a year prior to your injury, state law does not require the insurance carrier to pay the difference in your additional lost wages.

Likewise, insurance carriers are only responsible for 104 weeks of wage (two years) in the first five years of your injury per California law (partial wage loss, either pay rate or hours, still counts as a full day of wage loss against your cap). So, if you have a surgery 7 years after your injury, the insurance carrier is NOT required to pay for your time off to recover.

Using your wage loss in work comp intentionally and judiciously can be the difference between a successful case and an injury causing a financial nightmare.

How do I get my Rate Fixed?

Like all benefits in work comp, while the law may say you are entitled to an increased rate, you need a Workers Compensation Judge's (WJC) Order to force the insurance carrier to fix your wage loss rate (and potentially pay a penalty if it was intentionally incorrect). While you can hope your tenth call to your claims adjuster gets a response, it may be time to call a local and skilled work comp attorney to help you fight for the wages you should have been paid all along.

Additional resources provided by the author

The above is a fairly simplified version of the wage loss analysis we perform in the workers compensation realm. Further, Labor Code § 4453(c) is not the end all be all source for calculating lost wages in work comp - its just the start of the analysis. Like most areas of law, California worker's compensation law is a blend of statutes and case law. This means that the statutes written by our state legislators are then later interpreted by judges all across our state, including our state Supreme Court, to try to apply very specific factual situations to static law. The below links are VERY brief overviews of some of those important cases. Additionally, the above only represents one attorney's summary of the current state of the law in 2020. All cases are different and the outcome of each legal case depends upon many factors, including the facts of the case, and no attorney can guarantee a positive result in any particular case. This guide SHOULD NOT be taken as gospel or cited in court.

Case Law Pertaining to Wage Calculation

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