Q: My workmen's comp weekly temporary disability was calculated using income from March 16, 2016 to March 16, 2017 .
The latter being my date of injury. My income is Commission ONLY. 5 days after my injury a substantial commission check came through , this check, when added to my yearly calculated income would cause an increase in my weekly temporary disability. This commission check was solely for work that was performed PRIOR to my injury, approx. a month before...The claims adjustor will not count this check in my total yearly calculated income as it was received after my injury. This does not seem fair to me , your advice and comments please..
A: The Labor Code says you get the percentage of average weekly earnings 'at the time of injury'. So most WCAB judges use the 52 weeks leading up to the date of injury, which is why the adjuster won't budge; she's seen judges use that formula for 20 years. YOU CAN request a hearing on the Temporary Total Disability rate (it's not known as 'workmens comp'... it's Temp. Disability Indemenity), and ask that the judge order earnings included for work performed up through the date of injury...the worst that can happen is the judge will say 'no'. Most people cannot assemble evidence that the court can accept, so you really should be hiring a Workers Comp lawyer for this. It's just 15% of the final recover, no payment up front, the judge awards the attorney fee out of the final recovery based on the attorney's time and efforts.
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