The Most Important Number in Your Worker's Compensation Case

Pam: It seems almost unfair that overtime is excluded from the disability benefit.

Barry Doyle: It can really put a hurting on a family where the person who's off work makes a significant amount of money in overtime. And it's true in a lot of professions, but yeah, it certainly makes a big difference in terms of what they take home by way of the disability benefit. One of the places where I see this and it's significant a lot is in the construction trades. A lot of guys who work in construction, especially out of the unions tend to not work full years. They tend to be off a lot during the off season in the winter, but in the summer where they work pretty steadily, they work a lot of hours too. They end up with a loss of a lot of those overtime hours because it's not regular. It's not predictable and when they're off work, following on the job injury, what they take home for a disability check is often far, far short of what they take home when they're actually working.

Now to have overtime included, it has to be mandatory and it has to be regular. That's the standard, then it becomes actually part of your regular job, but the idea with excluding overtime is that this isn't something that can be counted on and calculated the same way your regular 40 hours should be counted. So in some cases it is possible to have overtime included. It's just that it doesn't happen very often and if you have a situation where you're off work and there's an issue as to whether or not your average weekly wage has been calculated properly, it really is a time for you to get some legal help because that average weekly wage is actually really the most important number in your workers' comp case. Pam: Really, why is that?

Barry Doyle: Well, the average weekly wage is really the basis for the two financial benefits that injured workers get directly. So the temporary total disability benefit, the two thirds of your average weekly wage while you're off work, the average weekly wage is the foundation for that. So let's just take an example of how this plays out in practice. Let's assume that you're being shorted for a moment by $150 in the average weekly wage calculation. Okay, now if you're off work 20 weeks, that $150 difference in the average weekly wage calculation equals $100 a week times 20 weeks, which is $2,000. Now it's not a huge amount of money, but it comes very dearly for a family that's already bringing home less money than they would normally bring home because somebody is off work and that extra $100 a week, that absence really gets felt. Okay. So the difference in that average weekly wage calculation is also felt when the settlement is computed at the end of the case.

Okay? Now let's just assume for a minute that the permanency portion of the case is settled for 50 weeks pay. I'll explain in a little bit how that gets computed. But ultimately what happens is that the permanency rate is 60% of your average weekly wage. Pam: Okay.

Barry Doyle: All right, so you take 60% of 150 and that's $90 per week. Now, if your case is settled for 50 weeks', the permanency rate and you're short at that $90, you take 50 weeks times $90, it's a $4,500 difference. And you add that together with the $2,000, you get short at while you're off work and add that all up and you end up with $6,500 difference over the life of the claim by virtue of this $150 a week calculation. Obviously that's something that adds up over time. It certainly costs the family that has somebody who's off work and if you don't think that this happens routinely you've got to be mistaken.

Because there are all kinds of ways in which that average weekly wage calculation can be fudged and it can be a legitimate source of dispute. But the thing is you gotta keep in mind is that if you have any disputed is always whether the average weekly wage has been calculated correctly. It's time to get legal help because people in insurance companies don't get punished because they understated somebodies average weekly wage calculation. I mean, this is the kind of thing that people get bonuses and raises for as opposed to getting called out onto the carpet for. So the insurance company is certainly going to be looking after their interests. You need to make sure that you're in be looking after your own interest and your family's interests if you've been hurt on the job.

Pam: Thanks Barry. You've been watching Fighting for What's Right with personal injury attorney Barry Doyle. Feel free to visit us on the web at

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