Q: Workmams Compensation Temporary Disability Question
I don't feel that my temporary disability has been calculated correctly. On March 16, 2017 I was showing property to a client and the stairs caved in. I was badly injured and have not returned to work since . My income has always been commission only . The claims adjuster asked my employer for a schedule of my earnings from March 19, 2016 to March 19, 2017. First , why this particular time period ?Utilizing this time frame I "miss out" on a check I received on March 17 , 2016 which was not included in the calculation of my temporary disability benefits the 2nd issue is I received a check for an escrow that closed on March 23 , 2017 , That commission was "earned " prior to my injury " . All of the work necessary , through my efforts , to close that escrow were done prior to my injury . I That check was not included in the calculation of benefits as it was received " after my injury ." I feel entitled to have these two checks included in the calculation of benefits Am I correct?
A:
Most Workers Comp judges take just the 52 weeks leading up to the injury, add up earnings and divide by 52. And you've described the adjuster did just this. The Labor Code says the adjuster is to use the 'Average' weekly wage. There IS case law permitting the judge to use other evidence in calculating what a fair and reasonable 'average' is in each claim.
So, if you wish to challenge the decision on the rate, you need to request an Expedited Trial on the Temporary Disability rate only. Then your attorney (you'll most likely muck it up if you try this unrepresented) will have to persuade the Workers Comp judge that your circumstance is the same as in the "Thrify" decision...that case involved a minimum wage earner who had taken and passed the nurse's exam, but didn't have her results and so couldn't work as a nurse due to the injury.
If the attorney can convince the judge that it would be the most accurate assessment of your 'average' weekly wage to go from March 17 2016 to March 16, 2016, then the defense will appeal, and the matter will be on 'hold' until the appeals are done...and the WCAB judge and the Appeals Board agree, then you get the higher rate.
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