my husband took 8 weeks on a leave of absence do to a surgery months prior to his accident thanks to that the weekly average pay calculation are low. What can be done on this case to bring the payment amount up?
The average weekly wage is based on what would be reasonable in the time prior to the date of accident. That can be open to many interpretations. The insurance carrier frequently calculates it low if that benefits them. It is important to get that issue fixed because the average weekly wage controls not only the weekly amounts that you get but also may affect the amount of permanent disability that the claimant gets.(depending on the type of injury involved). The only way to get this resolved if the insurance carrier will not agree is to have a hearing.
I would suggest that you contact an experienced workers compensation atty to go over the specifics of his wage history and how best to get it resolved. It is an important issue so it is unlikely the adjuster is going to be willing to bring it up without an attorneys involvement. If they do agree to a compromise that would indicate that they agree if should be higher but are hoping you don't get an attorney involved to see what it should really be (and if there are any penalty issues that apply).
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I would suggest looking at his wages for a year prior to the accident. The average weekly wage is to be s fair representation of the earnings prior to the onset of the disability. The fact that you husband took that leave of absence should not change his average weekly wage. The lack of earnings should not be included in taking the weekly average.
I think there’s a strong argument that those 8 weeks should not be counted in the average weekly wage computation. I would first try to negotiate with the insurance adjuster to get those weeks excluded from the calculation. If the insurance company is not willing to come to an agreement, I would take the issue to court and ask a judge to order them to recalculate the AWW without those weeks. You will probably need an attorney to help you with this, because the adjuster knows it would be hard for you to win the issue in court by yourself. There are a lot of things insurance companies do to unrepresented workers that they know an attorney would never let them get away with.
This answer is not intended as specific legal advice, but rather as general information. I can only comment based on the information provided in the original question, and there may be other important information that I was not given which could change the answer. This answer does not create an attorney-client relationship.
The law does not specify exactly what the average weekly wage should be. It is generally left to the discretion of the judge, who can do whatever he believes is fair under the circumstances. In your case, what they are trying to do to your husband is most unfair. The best (and most fair) way to calculate AWW in your case is to ignore the 8 weeks that your husband missed from work due to his surgery, and then consider the last 12 months of employment. You did not say what time period the carrier considered, but usually they calculate the AWW in a manner which is most advantageous to them. That is why many people get a lawyer, since most injured workers do not know the proper way to calculate AWW. It is not only important to know what time period the carrier considered, but it is also important to know how long your husband worked for the employer. For example, if he only worked there for 8 months, the carrier obviously cannot consider the last 12 months of employment. Also, be aware that the AWW should include things such as overtime and bonuses, and possibly other benefits also if those benefits are not still continuing, The AWW is important not only because it determines how much your husband will receive in lost wage benefits every two weeks, but also because it is an important number to consider when it comes time to calculate the amount of his permanent disability and therefore the value of his case. I agree that you should probably discuss your issue with a qualified WC attorney. Good luck. Steve Gurwin.
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