If you are a member of a union and are not a "seasonal worker' AND ARE INJURED AT WORK how is your benefit payment conculated

Asked 11 months ago - Sylmar, CA

im a union member and have been for 32 years I went to work after being on unemployment for 7 months prior, and after only working a week sliced my legg open and was unable to work for over 14 days .now despite the fact my hourly union wage WAS $30.05 at the time of the accident the worker comp adjuster despite the fact that my union says we are absolutely not seasonal workers IS TRYING TO PAY ME AS SEASONAL INSTEAD OF CACULATING IT 2/3 OF MY WEEKLY WAGE AT THE TIME OF THE INJURY IS THAT LEAGAL

Attorney answers (5)

  1. Marjory Harris

    Contributor Level 14

    6

    Lawyers agree

    Answered . Earnings is a complicated legal issue. See http://www.wcwebzine.com/a-z/averageearnings.htm and http://www.wcwebzine.com/a-z/earningcapacity.htm. If you worked sporadically out of a union hall for various employers, it is not as cut and dried as you would like. Read those two pages and some of the cases and you will see what I mean.

  2. Christian K. Lassen II

    Pro

    Contributor Level 20

    7

    Lawyers agree

    Answered . Complex. Find out from your employer your classification, and have a local lawyer investigate. Avvo has a terrific "find a lawyer" tool to find a top-rated Avvo attorney. Good luck.

  3. Nancy Emiko Jacobs

    Contributor Level 9

    5

    Lawyers agree

    Answered . You may want to contact your employer and ask them what type of employment they have you categorized as.

    If you think the adjuster is paying you incorrectly you should send them a letter advising them of why you think it is the wrong rate, what you think your rate should be, demand the amount you think is wed to you and request self-imposed penalties.

    If they do not correct the issue file a DOR and have a judge decide what is the correct rate.

    YOU should also consider hiring an attorney as these are complicated issues.

    This communication does not constitute "legal advice", nor does it form an attorney-client relationship.
  4. Daniel W Epperly

    Contributor Level 13

    4

    Lawyers agree

    Answered . Claims Adjusters will typically calculate average weekly wages by getting a wage statement showing earnings for the 52 weeks prior to the date of injury and averaging them out. I suspect that is what the claims adjuster in your case is doing in your case and because you were on unemployment, the average weekly wages is low.

    Please Google search and read Labor Code section 4453. In your case it sounds like there is a dispute about your true earning capacity and perhaps whether or not you were a seasonal worker. Your next question is probably how is this dispute resolved?

    An Expedited Hearing will probably need to be filed and a Judge will have to decide what your true earning capacity was on the date of injury. You may be able to have the Information and Assistance officer at the WCAB help you file for the Expedited Hearing but your best bet is to retain a reputable WC attorney who is willing to litigate the earnings dispute on your behalf. You can find reputable WC attorneys at the following website: https://www.caaa.org/index.cfm?pg=FindaLawyerDi...

    Good luck to you!

  5. Gerald Franklin Batchelder

    Contributor Level 13

    3

    Lawyers agree

    Answered . When you were hired by this employer, what were you told about how long the job would last? How many hours did you work per week on this job? Why were you unemployed for seven months before starting this job? Has it been typical of your work history that you would be off work for long stretches of time between positions, or was this an unusual situation? I can probably give you a better answer to your question if you can provide this information.

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