Are You Being Short Changed On Your Comp Check?
Most injured workers do not know what they are entitled to, and trust that the amount they receive weekly is accurate. This is very frequently NOT the case, and many injured workers are short-changed hundreds, thousands, and even tens of thousands of dollars. To make certain you are paid correctly, you need to know how to calculate your income benefits.
Workers’ compensation TIBS and IIBs payments pay at 70% of your average weekly wage, subject to maximum and minimum rates that change each year. The current maximum rate is $850 per week. If you are receiving less than this amount, it is possible you are owed more. Since the benefits paid to you are based upon your average weekly wage, it is important to understand how the average weekly wage is calculated.
For most workers employed at least 13 weeks prior to their injury, the average weekly wage (AWW) is based upon your gross earnings and compensation over the 13 weeks prior to the injury. There are exceptions for school district employees, seasonal employees, and employees who were hired within the last 13 weeks, but the 13 week rule applies to most injured workers.
First, you look at all gross wages paid during the 13 weeks. For workers who are paid every other week, it can include 14 weeks, and for those paid semi-monthly, it should be based upon your last 6 pay periods before the injury. This includes all forms of monetary compensation, bonuses, per diem (unless this was truly a reimbursement), and any other form of financial compensation. You would then include the cost to the employer or the fair market value of any non-monetary payments that have ended, such as health insurance, food, clothing, a vehicle, lodging, etc. There really is no limit to what could be a non-monetary wage, if you received a benefit as a result of your work that has since ended, the cost or the fair market value of that benefit should be included. If the benefit has not ended, but does end later on, then the AWW is adjusted at that time.
Generally, this is all that is necessary to properly calculate the AWW for most injured workers, but there are exceptions. If there was a reduction in your earnings for a brief period for reasons beyond your control, this period can frequently be excluded. For example, if you were out sick, or missed several days for a funeral, or for any other reason could not work for reasons beyond your control, those periods can frequently be excluded.
There is a form called a Wage Statement, or a DWC-3, that the employer is required to complete once an injured worker becomes entitled to benefits. This form is provided to the insurance company and the injured worker, and is the basis for the AWW calculations. It is important that you thoroughly review this form to make certain everything is accurately reported. If they excluded any pay, such as holiday pay, vacation pay, sick pay, or any other form of pay, then it needs to be amended.
If they reported your net pay instead of your gross pay, then you are being underpaid. If they did not properly identify all non-monetary benefits, then this needs to be addressed, especially if they have ended or may end before your income stops. It is frequently much more difficult to obtain this information later on. If one of the pay periods includes your date of injury, dates beyond the injury, or the week of hire, these should be excluded as well.
It is very common for insurance companies to underpay injured workers, and frequently they don’t even know they’re doing so. They are not going to go back and argue with the employer to include more payments so that they can pay you more, and they generally only ask questions if the rate of pay seems high and they want to try to reduce payments. It is the injured workers responsibility, or their attorneys, to make certain everything is included and the rate of pay is accurate.
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Abbott, Clay & Bedoy attorneys are licensed only in the state of Texas unless otherwise indicated in the biographical section. Past performance is no guarantee of future results. We consider employment in another State only in association with co-counsel licensed in that State. References to laws are limited to federal and State of Texas law.