How Are Your Lost Wage Benefits Calculated

The primary form of your compensation is Lost Wage benefits. If you are out of work, you are entitled to up to 2/3 of your average weekly wage. The actual amount is dependent upon the following factors:

• The date of your injury,
• Your average weekly wage,
• Your medical impairment,
• Whether you have returned to work earning less money, and/or
• Upon permanency, your loss of earning capacity and age.

How Much am I Paid?

Depending on your date of injury, there are maximums and minimums set by law. From July 1992 until March 2007, the maximum benefit was $400.00 per week and the minimum was $40.00 per week. Starting on July 1, 2007, the maximum rate was increased to $500.00 per week and has increased each July; the rates for the last five years are as follows:

The law now provides that the maximum rate be set at 2/3 of New York State’s average weekly wage, as set forth by the Department of Labor.

Average Weekly Wage Calculation

Your average weekly wage is calculated by looking at your before-tax earnings for the 52 weeks prior to your injury. If you did not work for 52 weeks at that particular job or for that particular Employer, a similar employee’s payroll can be used instead. Both your earnings and the days worked are calculated and used in a mathematical formula to determine your average weekly wage.

For a five-day-a-week worker, the gross earnings are divided by the actual number of days worked to determine the average daily wage, which is then multiplied by 260 and divided by 52. Different multipliers are used depending on the number of days worked or for seasonal workers. You can estimate your average weekly wage by using our calculator found at www.mcvlaw.com.

Concurrent Employment

Many people have more than one job. The law takes this into account.

This is called “Concurrent Employment.” To be eligible for Concurrent Employment, your other work must also be “Covered Employment.” This means that your other work is covered under New York State Workers’ Compensation Law. Your concurrent earnings are added into your average weekly wage.

Minor’s Wage Expectancy

If you are under the age of 25 at the time of your injury, a “Minor’s Wage Expectancy” evaluation is completed at the time of permanency. The idea is that you should be compensated for being under 25 at the time of your injury. Typically, this increases the Average Weekly Wage, thereby increasing permanency awards.

The Minor’s Wage Expectancy is determined by looking at what you would have earned at age 25 for the same Employer. Factors to be considered are education, advancement, and earnings of similar workers. The Minor’s Wage Expectancy is often the subject of much dispute.

Calculation of Weekly Benefits

After your Average Weekly Wage is set, your weekly benefit is calculated based upon your degree of medical impairment while you are out of work. Medical impairment, often interchanged with degree of disability, is expressed as a percentage.

If you have a 100% temporary impairment, often referred to as a temporary total disability, you are entitled to 2/3 of your average weekly wage, subject to the maximum and minimum. If your disability is less than 100%, you are paid that percentage of the total disability rate.

The table below sets forth an example of an injured worker earning $900.00 per week. As demonstrated below, this person would receive $300.00 per week if the doctors opined a 50% impairment, often called a “Moderate” degree of disability.

Temporary Total Disability

In order to be entitled to temporary total disability (100%), your medical providers must indicate that you are unable to return to your former work and can do no other work. Typically, a temporary total disability applies after:

• An acute injury occurs,
• An exacerbation, or
• A surgical procedure.

Temporary Partial Disability

Generally, after having time to heal, your doctor may decide that your degree of disability is less than temporary total, even though you are unable to return to work.

Often, the insurance company will exercise their right to have you examined by their IME before your doctor reduces your degree of disability. If the IME says your degree of impairment or disability is less than what your treating doctor opines, the Carrier may reduce your benefit, unless there is an order from the Court directing payments. The amount paid when you have a temporary partial disability is typically a percentage of the total rate as shown in the table above.

When your disability is less than temporary total, we recommend that you obtain written restrictions from your treating physician with regard to your ability to:

• Sit at any one time,
• Stand and walk,
• Whether or not you need a position that requires a shifting of positions from sitting to standing or walking,
• Whether you need unscheduled breaks during an eight hour day,
• Whether prolonged sitting should require elevation of your legs,
• The amount that you can lift and carry in a competitive work situation,
• Whether or not you can twist, stoop, crouch, climb ladder, climb stairs, or
• Other limitations with regard to reaching handling or fingering.

In addition, you should also have your physician document the side effects of any medications you are taking and how they might impair your ability to work.

Either party may request a hearing to adjudicate your degree of disability.

Reduced Earnings

If you return to work, either for the same Employer or a new Employer, and earn less because of your injury, you are entitled to 2/3 of the difference between your Average Weekly Wage and your new earnings. This is called “Reduced Earnings”.

For example, if your Average Weekly Wage is $900 per week and you return to work earning $300 per week because you’re on light duty, the difference is $600 per week, and the Workers’ Compensation law would pay $400 (two-thirds of $600).