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Income Benefits Guide

Last modified: Dec 12 2020

Intro:
When are you entitled to recieve money for lost income?

When you get hurt at work, you may be entitled to be compensated for up to two-thirds of your lost wages. This is paid out as a weekly check.

This sounds very simple, but in practice the law is needlessly complicated and confusing for injured workers.The lost wage benefits are called “temporary total disability benefits”. Although the benefits are called “temporary”, they could theoretically last the rest of your life (if you have a catastrophic injury). The law says that you are entitled to draw these benefits when you have a” loss of wage earning capacity” because of your workplace injury.

To prove this, you need to show that you are completely unable to work or that there is not suitable light duty work available for you within your physical ability.

The seven day waiting period

You are not entitled to lost income benefits unless you have at least 7 days of missed work. If you miss 21 days, then you are entitled to get paid for the first 7 days too.

Calculating the amount of your benefit

The amount of the check is equal to 2/3 of your average weekly wage for the 13 weeks immediatly prior to your date of accident.

As of 2021, the maximum check amount is capped by state law at $675.

Your average weekly wage is calculated based on your gross income before taxes.

Below is a (partial) copy of the form that the insurance company is supposed to use when they calculate your weekly wage. This is called a WC-6 (they are supposed to mail you a copy if they are paying you less that $675)

Be careful: The insurance company will often pay you less than you are owed. Always double check the amount they tell you.

They are supposed to include tips and overtime in your wage.

Your 'average weekly earnings' X 2/3 = the compensation rate on your lost income check.

If you didn't work the 13 weeks prior to the accident

Sometimes we cannot calculate your weekly wages for the 13 weeks prior to the accident because you did not work for "substantially the whole" of 13 weeks. This issue often comes up with school employees on summer vacation or someone who just started a new job. Even small differences in the compensation rate on your check can add up over time. It is very important to use the method that will yield the highest rate for you.

When you have not worked for "substantially the whole" of 13 weeks, the law gives us two alternatives to calculate your average weekly wage.

First we will look at the wages of a similair employee. The insurance company always tries to pick the employee with the lowest wages. We do not let them do this.

If there are no similair employees, then your average wage is based on the contract rate. In other words, it is your hourly wage multiplied by how many hours you work per week. This method is not favored because it will never include overtime pay.

Work Restrictions

You should be given written work restrictions after the accident. In almost all cases, your doctor's work restrictions will determine if you are capable of working. Your right to a weekly income benefit check depends heavily on the written restrictions you get from your treating doctor. Your doctor can do three basic types of work restrictions.

1. The treating doctor can put you on “full duty” restrictions. In this case, you would not be entitled to lost income benefits.

2. The treating doctor can take you completely out of work. If you are put on a “no-work” status, then you will be entitled to lost income benefits.

3. The treating doctor can put you on “light duty” restrictions. An example of light duty restrictions would be “no lifting over 5 lbs”

Depending on your work restrictions, you may or may not be entitled to receive lost income benefits.

Working with restrictions

If your primary treating physician reports that you can stay at work or return to work with work restrictions, any work that your employer assigns must meet these restrictions. Your employer may, for example, change certain tasks, reduce your time on certain tasks, or provide helpful equipment. Or, your employer may say that work like this is not available—if this happens, you are entitled to lost income benefits.

It is important to note that your rights to income benefits do not depend on the severity of your injury. You are entitled to a weekly check when you are unable to perform work for your employer. If you are a concert violist and you break your pinky, you will be unable to play the violin. That will entitle you to a weekly check. If you answer phones and you break your pinky, you will likely be able to continue answering the phone with your opposite hand. You would not be entitled to a weekly check.

The work restrictions given to you by your doctor are based on the subjective opinion of the doctor.

For example, I have had a client with immense back pain who was not able to stand for long periods of time. His job required him to stand for eight hours per day. But the workers’ comp doctor absolutely refused put the injured worker on restrictions that would limit his standing. My client had to use sick time because he was in so much pain.

I have even had a doctor tellone of my clients they would not take them completely out of work unless they were paralyzed.

That is not how the system is supposed to work. In many ways workers’ compensation is a broken system. Unfortunately, over the years some doctors have become “political”. Meaning that they favor the insurance company, even if they are causing their patients physical pain and financial damage

I should say most doctors are good doctors who have their patients' best interest at heart. I want to always make sure my clients are seeing a doctor who is a patient advocate. The wrong doctor choice could literally take tens of thousands of dollars of benefits (or more) out of your pocket. That is why insurance companies fight so hard to control which doctor is allowed to treat you.

Needless to say, work restrictions are very important for establishing your right to lost income benefits. second opinion

My employer assigned work that seems to violate my work restrictions. What can I do?

Unfortunately this happens frequently. You get work restrictions from the doctor, but the employer will not follow the restrictions. In this case you are in a very tough spot. You should definitely consult with an attorney because these situations depend on the particular facts of your case and you need the advice of an attorney.

The "trial" return to work period

Frequently, you will be taken out of work immediately following an accident or after a surgery. Eventually your doctor may transition you to light duty restriction.

When you go from a "no work" status to "light duty", your employer may try to offer you light duty work.

Your employer does not have to accomodate you with light duty work if they do not want to. Often times the Employer would rather not have you back if you are not ready for full duty, except the insurance company puts pressure on them. Insurance companies will often threaten to raise an employers premiums if they do not accomodate light duty work.

You have 15 days to attempt any light duty work that is offered to you. If you unreasonably refuse to try a light duty job, the insurance company will automatically terminate your benefits. You have to attempt the job for 8 hours or two scheduled shifts, whichever is greater. Unpaid lunch breaks do not count towards the eight hours.

If you attempt for the required amount of time but are unable to perform, then the inurance company has to automatically restart your benefits. But they do not have to restart your benefits if you decide that you cannot work more than 15 days.

This is one of the arbitrary deadlines that are common in workers' comp. You should be concerned that your employer may fire you if you work more than 15 days. It is always a good idea to get a free consultation with an attorney before you attempt a light duty job offer.

What if I am making less money because of the accident?

Sometimes an injured worker will return to "light duty" work, but they are not making as much money as they did before the accident. In that case, the workers' comp insurance owes you 2/3 of the difference. This is what the law calls "temporary partial disability" benefits. This often happens when you return to work but you are not getting as many hours, or your are being paid a lower hourly rate for light duty.

What happens to your workers compensation lost income benefits if you quit your job?

Sometimes employees will return to "light-duty" work after an injury and they feel like their employer is giving them a hard time. It is possible that your employer is putting pressure on you to quit. The employer and insurance company don't want to fire you, because then you would be entitled to claim lost income benefits.

If you quit working while on light-duty, that will be a reason for the insurance company to deny your weekly benefits. The insurance company will not pay you unless you prove an economic "change of condition for the worse." You would need to hire a lawyer and go to a hearing to get your benefits started. These cases can be difficult and take many months. Basically, when you quit, you make it much more difficult to claim lost income benefits and it is not guaranteed you would succeed.

In most cases, quiting will also signifigantly reduce the amount of the potential settlement you could get from the insurance company. If you are thinking about quiting, you should definitley get a free consultation with a workers' compensation lawyer before you do anything.

What happens if I get fired while on light duty work restrictions

If you are fired while on work restrictions, you may be entitled to lost income benefits.

If you are fired because of your injury, you will be automatically entitled to start drawing workers compensation benefits.

But often times, the employer will think up a bogus reason to fire you. If you think you were fired because of the injury, you may request a hearing in front of a judge to prove you are entitled to these benefits. You will want a lawyer to help you with this.

Sometimes, employees are fired for cause. For example failing a drug test or being excessively tardy. In these cases, you can still be entitled to recieve lost income benefits. You need to show that you performed a job search but that you were unable to find any work within your restriction.

How long can I draw a weekly lost income check

You could potentially get a lost income check for up to 400 weeks. If your case is catastrophic, then you are entitled to draw checks without any time limit. "catastrophic" means that you are not capable of performing any work that exists in the national economy.

If you have been on light duty work restrictions for 52 consecutive weeks or 78 aggregate weeks, then the insurance company could file a form that would limit your benefits to 350 weeks. Please see the next section.

Can they reduce my benefits after i go on light duty

You could potentially get a lost income check for up to 400 weeks. If your case is catastrophic, then you are entitled to draw checks without any time limit. "catastrophic" means that you are not capable of performing any work that exists in the national economy.

If you have been on light duty work restrictions for 52 consecutive weeks or 78 aggregate weeks, then the insurance company could file a form that would limit your benefits to 350 weeks. Please see the next section.

Catastrophic cases

You could potentially get a lost income check for up to 400 weeks. If your case is catastrophic, then you are entitled to draw checks without any time limit. "catastrophic" means that you are not capable of performing any work that exists in the national economy.

If you have been on light duty work restrictions for 52 consecutive weeks or 78 aggregate weeks, then the insurance company could file a form that would limit your benefits to 350 weeks. Please see the next section.

Penalties for late checks

You could potentially get a lost income check for up to 400 weeks. If your case is catastrophic, then you are entitled to draw checks without any time limit. "catastrophic" means that you are not capable of performing any work that exists in the national economy.

If you have been on light duty work restrictions for 52 consecutive weeks or 78 aggregate weeks, then the insurance company could file a form that would limit your benefits to 350 weeks. Please see the next section.

When do I need to hire a lawyer

You could potentially get a lost income check for up to 400 weeks. If your case is catastrophic, then you are entitled to draw checks without any time limit. "catastrophic" means that you are not capable of performing any work that exists in the national economy.

If you have been on light duty work restrictions for 52 consecutive weeks or 78 aggregate weeks, then the insurance company could file a form that would limit your benefits to 350 weeks. Please see the next section.