Tag Archives: average weekly wage

Irregular shifts complicate workers’ compensation claims

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Irregular work hours, driven increasingly by automated scheduling, have lead San Francisco and Seattle to pass municipal ordinances to regulate the practice because irregular schedules make child care, transportation and working multiple jobs increasingly difficult for low wage workers.

Irregular hours also increase the risk of work injury and they can complicate the claims of injured workers.  Here are a few ways irregular working hours can impact a workers’ compensation claim:

Benefit rates

Workers compensation disability benefits are paid based on a workers’ average weekly earnings or their average weekly wage – AWW for short. But when you work 40 hours one week and eight the next, what’s your average work week? Mathematically, in this scenario the average week would be 24 weeks. An insurance company would likely use a simple average.

But under Nebraska law a court is supposed to exclude abnormally low weeks from the calculation of average weekly wage. In other words if the case is pushed into court, a Judge will exclude abnormally low weeks which would lead to a higher benefit rate.

Many employers also pay shift differential where night and weekend shifts get a higher hourly wage. Effective hourly wages can vary from week to week for employees who work irregular shifts that include night and weekend shifts.

Nebraska excludes overtime premium in general from AWW, but shift differential still counts. Sometimes insurance companies will exclude shift differentials from their calculations of average weekly wage. This is particularly true when insurers are calculating permanent disability benefits.

It is also common for workers who work irregular shifts to work less than 40 hours a week. For the sake of permanent disability benefits, Nebraska assumes a minimum of a 40-hour work week . Insurers will often not follow this rule. Irregular shift workers are not the only workers who are subjected to this practice, but when you combine exclusions of shift differential along with not using a 40-hour week, irregular shift workers can get substantially underpaid when it comes to workers compensation.

Our firm, like most other firms, represents injured workers on a contingent fee basis. The problem with that arrangement is that while an under payment of benefits may be a meaningful amount of money to an injured worker, it may not be enough for an attorney to justify taking on an underpayment claim on a contingent fee basis. Most state and federal wage and hour laws allow for fee awards that can be many times the unpaid wages. The reason for attorney fee awards in this case is the important public purpose of these laws.

Workers compensation has the same general purpose of as wage and hour laws, but in Nebraska it is difficult to get attorney fees in a disputed workers compensation case because an award of penalties requries a lack of a reasonable controversy. Conventional wisdom is that employees must show a lack of reasonable controversy to win attorney fees. However, some case law seems to distinguish the standard for winning a penalty versus winning an attorney fee.

Medical appointments

Irregular shifts also make it difficult to schedule medical appointments. This is particularly true of specialists who would be treating a more serious work injury. Missing appointments can be a red flag for judges, doctors and insurers if not explained. A good attorney can help an injured worker explain how an irregular work schedule prevented them or interfere with the. from attending medical appointments.

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Maximum Workers’ Compensation Rate Increases to $817 a Week for 2017

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On Jan. 1, 2017, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act was increased to $817 from the 2016 maximum rate of $785 per week. The minimum rate remains unchanged at $49 per week.

Mileage reimbursement rates for Nebraska actually decreased this year to 53.5 cents per mile, down from 54 cents per mile in 2016. For details about mileage reimbursement for workers’ compensation claims, please see these previous blog posts here and here.

The maximum weekly benefit of $817 is 100 percent of the state’s average weekly wage, based on data provided by the Nebraska Department of Labor. Workers’ compensation disability benefits are based on two-thirds of your average weekly wage. So workers who would earn more than $63,726 ($817 times 1.5 times 52) in non-overtime wages would lose out under the cap on maximum benefits. An annual salary of $63,726 works out to roughly $30.64 per hour for a 40-hour workweek.

The fact that workers’ compensation benefits are not taxable somewhat cushions the blow for workers who would lose out under the maximum rate cap, but when a worker is receiving workers’ compensation, that person can sometimes lose the benefit of the employer paying for private health insurance. Injured workers may be forced to pay employers back for paying the workers’ health insurance during a work-injury-related absence.

In most instances, calculating an injured worker’s benefit rate is a fairly simple manner. But some workers who regularly have extended times when they are not working, such as school employees, construction workers, and professional athletes, can present more challenges. If an employee is injured early in employment, then calculating average weekly wage can also be complicated.

Unfortunately, the minimum weekly income benefit remains the same at $49 per week. This amount has not changed since 1973. Often, the minimum-income benefit is not an issue in most workers’ compensation claims, because most people make well-over $73.50 per week (which would be the amount necessary for $49 per week in workers’ compensation benefits). However, this minimum-income benefit can come into play in situations where an employee only works a on a very limited basis with an employer, or simply does an odd job for an employer here or there. In those situations, a devastating injury could be paid at only $49 per week, even if the injured worker had another full-time (and much higher-paying) job if the injury occurred while working on one of those small part-time jobs. The Nebraska Legislature needs to take a look at a rate increase for the minimum for this specific reason.

Though benefit rates are capped for purposes of payment of disability, they are not capped for purposes of vocational rehabilitation or “voc rehab.” Voc rehab is intended to help an injured worker return to a job of similar pay. For example, if a worker earning $90,000 per year is injured and can’t return back to work earning $90,000 per year, that person is entitled to training that would allow the worker to return back to work at $90,000 a year. However, during that retraining, this injured worker would be limited to receiving benefits at the maximum rate for the date of the injury.

Workers earning over the maximum rate could also collect temporary partial disability up to the maximum rate if they were working at reduced time and their wages were high enough.

While the $63,726 total for a year of maximum weekly benefits would be a good income for a single person, that income would qualify a household larger than two for subsidies under the Affordable Care Act. The high price of child care often leads families to decide to have one spouse stay home and take care of the children while the other spouse works. So for higher-paid workers, even an injury where the employer/insurer takes responsibility for the injury can lead to financial turmoil.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Average Weekly Wage Decides Workers’ Comp Benefits

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Workers’ Compensation benefits are partially determined by your average weekly wage.

One of the factors that determines how much you receive in workers’ compensation benefits is the calculation of your average weekly wage. In Nebraska, in most cases, average weekly wage is calculated by:

  1. going back 26 weeks
  2. multiplying your hours times your straight time pay
  3. excluding abnormally low-hours weeks (generally those of 32 hours a week or less)
  4. taking the total amount of wages earned in non-abnormally low work weeks divided by the number of non-abnormal weeks.

Multiply your average weekly wage by two-thirds, and that is what you should receive for your weekly workers’ compensation benefit. That amount is exempt from federal and state taxes in Nebraska, so your work comp check should oftentimes be close to your actual take-home pay, unless you are working a lot of overtime.

There are all sorts of exceptions to the basic way to calculate average weekly wage. If you receive a fixed amount for room and board as part of your contract, then that amount is included in addition to your wages. If you just started at your employer, then a court might look at what other workers were making in the six months before your injury to determine your average weekly wage. An employer might also try to reduce your workers’ compensation benefits if they can deem you a “seasonal employee.” School-district employees will often be paid workers’ compensation benefits based off a weekly average of their annual pay.

There are two types of workers’ compensation benefits: temporary and permanent. Employees who work less than 40 hours a week will be paid permanent disability benefits based on a 40-hour week. But please keep in mind that all of these rules vary from state to state.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in workers comp basics, Workers' Comp Q & A, Workers' Compensation and tagged , , .