Q: In 2020 I made $27,000 less the my annual salary due to furlough and pandemic so when I was injured in 2020 my AWR low
My weekly rate I’ve been paid is not my correct average due to pandemic is there any way to appeal this
A:
Yes, you can litigate the earnings issue before the Workers' Compensation Appeals Board.
Usually the insurance company will take your earning for the last 12 months and divide by 52 weeks to come up with your average. This method does not give your true "earnings capacity" at the time of your injury. "Earning capacity," as contemplated by Labor Code, § 4453, subd. (c)(4) relating to computation of average earnings, is the earning capacity of the injured employee at the TIME OF HIS INJURY. Lab Code, § 4453, subd. (c)(4) provides:
Where the employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury, due consideration being given to his or her actual earnings from all sources and employments.
Also, in Goytia v. Workmen's Comp. App. Bd. (1970) 83 Cal. Rptr. 591, 1 Cal.3d 889, 894, the Supreme Court explained: "Earning capacity is not locked into a straitjacket of the actual earnings of the worker at the date of injury; the term contemplates his general over-all capability and productivity; the term envisages a dynamic, not a static, test and cannot be compressed into earnings at a given moment of time.”
A: Yes. You can appeal anything. Whether or not you can succeed is a different question. You don't explain the reasons for the furlough so no one can say whether or not you will succeed.
Nancy J. Wallace agrees with this answer
A: I would compile my earnings evidence for the 2 years just prior to 2020, so 2018 and 2019. Present copies to the adjuster with a request that your TTD rate reflect pre-pandemic earnings, your real EARNING CAPACITY. There probably won't be any response, but now you have the proof to show the Workers Comp judge to prove your Earning Capacity was so much higher than during the pandemic in 2020 it isn't fair to use Pandemic Earnings to calculate the Average Weekly Earnings.
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