Tuesday, September 9, 2014

What is my "average weekly wage" (AWW)? How is it determined, and why does it matter?

The amount of an employee's weekly work comp checks is tied to what the law calls the average weekly wage (AWW).  Why do you care about this?  You care because the higher a person's AWW, the more money they may ultimately get for their injuries.

The three methods for determining a worker's AWW are set out in OCGA §34-9-260 and they are as follows:

First way:  The primary way is to take the average of the worker's gross weekly wages (meaning before taxes and any deductions are taken out) for the 13 weeks preceding the date of accident.  You just add them up and divide by 13.  For example, if a worker had gross earnings of $3,575.00 for the 13 weeks before his accident, then his AWW for work comp purposes will be $275.00 (which is 3,575 divided by 13).

Second way:  If a worker did not work for the employer for "substantially the whole" of the 13 week period before his accident, then he doesn't have 13 weeks of wages and you can't use the first method. If that happens, the second way to determine AWW is to use the wages of a "similarly situated employee." This means that you try to find another worker who did basically the same job for the 13 weeks before the accident date and you then use that worker's wages to determine the AWW.

Last way:  If either of the first two ways cannot "reasonably and fairly be applied," then the law says you must use the "full time weekly wage" of the employee.  Some people refer to this as the "contract for hire."  It is essentially the deal cut between the employer and employee when the work began.  For example, if an Joe is told by his new employer that he will be paid $10 per hour and will work a 40 hour work week, then the full time weekly wage would be $400.00 and that would be his AWW.

This is a simplified explanation of §34-9-260, and the calculation can be affected by other factors. One such factor is whether your employer pays for lodging and meals (as is common for employees who work away from their home city on a job).  If they do, then you can add the value of those things to the actual wages earned to get a higher AWW.  This can make a big difference in AWW.

Another trick is to look and see if a worker has any concurrent similar employment.  This basically means, did he/she do the same job for multiple employers during the 13 weeks before the injury?  For example, if a man worked as a store clerk three days a week for one employer and then worked another three days as a clerk for a second employer, you can add the wages from both employers to get a higher AWW.  This can also make a big difference.

Getting the highest AWW you can is important.  There is a direct correlation between your AWW and the amount of your weekly checks.  Higher AWW = higher checks.  It can also have a big effect on the amount of your settlement.  If two workers have identical injuries, but one has a much higher AWW, then that worker's case is likely to have a much better settlement value than the other.

So, pay attention to how your AWW is calculated.  Doing it correctly can have a real financial impact on your case.

Wednesday, September 3, 2014

I got hurt at work. What should I do?

It has been said that an ounce of prevention is worth a pound of cure.  So, what's the right way to handle an injury at work so that you don't end up in a jam later?

Here are some tips:

  • REPORT YOUR INJURY TO A SUPERVISOR ASAP.  As a matter of fact, tell coworkers and anyone else who will listen.  This is the most important thing I can tell you.  Many, many cases are denied by insurance companies because they say "The employer says they don't know anything about an accident" or the because the worker "Never told anyone he/she was hurt."  The law requires that injures be reported to your employer within 30 days, but DON'T WAIT THAT LONG.  Don't even wait close to that long.  Tell people that same day.  Even if you don't feel like you are badly hurt, let several people know what happened.
  • DON'T JUST TELL YOUR SUPERVISOR YOU HAD AN ACCIDENT -- TELL HIM/HER THAT YOU WERE INJURED.  Telling your boss that  you "fell" may not be enough to preserve your claim.  The law is full of technicalities and one of them in workers' compensation is that telling your employer about an "accident" may not be considered the same thing as telling them you were "injured."  In general, your notice to the employer should be detailed enough to put an employer on notice of a potential work comp claim so that they can conduct an investigation of the accident if they so choose.  Back in my days as an insurance company lawyer, I won a few cases because injured workers admitted they never told their employer that they were injured -- they only told them they had an accident.  There is a difference.  Don't get caught in this potential trap.  Be clear and tell them about your injuries.
  • GET MEDICAL TREATMENT.  It is important not to delay getting medical care, because an insurer may try to deny your claim if you wait a long time before asking for treatment.  If you have an emergency situation, get to an emergency room.  Employers are responsible for the cost of emergency care after an injury.  If it is not a true emergency (or after the emergency situation has calmed down), ask to see the list of panel doctors.  The panel is a list of at least six company doctors.  You are allowed to choose one of the doctors to become your treating physician.  Who is on the list and who you pick can make a difference in your case, so ask for a copy of the panel (or take a picture of it with your cell phone).  This information can come in handy later to your lawyer.  If the employer didn't follow the rules about the panel, you might be able to pick your own doctor and make the employer pay for it.
  • TELL YOUR EMPLOYER ABOUT ANY RESTRICTIONS YOU HAVE.  Once you get medical treatment, the doctor will do one of three things with regard to your work status.  Either you will be taken completely out of work, or you will be placed on restrictions (light duty), or you will not be put on any restrictions at all.  Most of the time people get put some kind of restrictions or are taken completely out of work.  In any case, communicate with your employer and let them know what the doctor says you can and cannot do.  If you are on restrictions, it is the employer's duty to give you work within those restrictions.  If they don't have light duty within your restrictions, then you may be entitled to weekly work comp checks.
  • CONSIDER GETTING A LAWYER.  After you have given proper notice to your employer that you had an injury (and not just an accident) at work, and after you have gotten any emergency medical treatment out of the way, really think about at least talking to a lawyer.  This isn't just me drumming up business here.  There are a lot of reasons you might need a lawyer at this point.  The insurance company is not your friend and their concern is to close your claim as cheaply as possible.  Unless you are a work comp lawyer, I can promise you that you don't know the ins and outs of the law and potential pitfalls that await you.  An experienced lawyer can direct you to the best choice of medical treatment.  An experienced lawyer can tell you whether your employer has to offer you light duty work.  An experienced lawyer can make sure your medical bills get paid and that you get paid, if you are owed weekly checks.  One more thing -- lawyers don't get generally get paid until your case settles, so it doesn't "cost" you any more money in the end whether you hire a lawyer at the beginning of your case or the end of your case.  You might as well hire one early and have the benefit of that advice as you go along.  It will improve the flow of your claim and could make a big difference in the amount you ultimately recover.
Right after you get hurt, tell your boss about the injury and go get medical treatment.  After that, talk to somebody whose job is to protect you -- an experienced workers' compensation lawyer.