Category Archives: Occupational Diseases

Why is your Average Weekly Wage So Important in Your Workers’ Compensation Claim?

Workers Compensation is an insurance policy provided by North Carolina General Statutes.  Because these are benefits created by statute, the statute provides specific formulas to calculate the amounts due to an injured worker when he or she suffers any permanent injury or when in injured worker is entitled to weekly benefits when not able to work due to a compensable injury.  All of these benefits are calculated by using the Average Weekly Wage of the injured worker.  In many cases this may seem like an inaccurate method of determining what an injured worker should be paid.  For example, a 25 year old worker who is injured making $15.00 per hour will be paid the same amount for the same injury as a 61 year old worker.  Obviously the 25 year old worker has many more years for which he cannot earn as much money due to an injury, but the statute does not always account for this.

In any event, there must be a formula to calculate the amount due to an injured worker.  The first element of this equation is the Average Weekly Wage of that worker.  Chapter 97-2(5) provides several methods of determining this Average Weekly Wage (AWW).  The typical method for calculating the AWW is to total the wages earned during the previous 52 weeks of employment and divide that amount by 52.  There are provisions for adjusting this calculation if the injured worker missed seven or more consecutive days during that previous 52 weeks.  Also, if the employment prior tot he injury was for less than 52 weeks, the calculation can average the weekly pay for the period less than 52 weeks, providing doing so would be fair to both the injured employee and the employer.  In certain circumstances, it is appropriate to use the AWW of a comparable employee.

When an injured worker with a compensable injury is excused from work by his or her treating physician, he or she may be entitled to weekly benefits, typically referred to as Temporary Total Disability benefits (TTD). TTD is defined by the statute as 2/3 of the injured worker’s AWW.  This calculation can involve multiplying the AWW by as much as 500 weeks. This is one reason why the proper calculation is so critical.  Similarly, if an injured worker returns to work, but because of compensable injuries that worker cannot earn as much as he or she earned pre-injury, then that injured worker may be entitled to Temporary Partial Disability (TPD) for the weeks he or she is not able to earn the pre-injury wage, up to 500 weeks.

Additionally, when an injured worker is assigned a Permanent Partial Disability rating by a treating physician, the calculation of the value of that rating is determined by starting with the AWW.  This calculation can involve multiplying the AWW by up to 300 weeks.  This is another reason that the calculation of the AWW is so critical.

An injured worker is entitled to payroll records which indicate all wages earned during the 52 weeks prior to injury, and sometimes back even further.  There is even an Industrial Commission (the Industrial Commission is the court system in North Carolina for hearing Workers’ Compensation claims) Form 22 which should be completed by the Employer to assist in determining the correct AWW.  However, there can be mistakes on these forms and all calculations should be checked.  It is best to compare the earnings reported by the employer with tax returns and paycheck stubs.  As you can see, even a $1.00 difference in the AWW can means hundreds of dollars less than an injured worker should be receiving.  A $10.00 difference can mean thousands of dollars.

If I am injured at work, can I choose my own doctor?

This is a good, and well argued question. The short answer is that it depends.

First, if you are injured at work and you make a claim for Workers’ Compensation benefits, and that claim is denied, then you may seek treatment from any doctor you wish. The caveat is, in such a case, that you will be responsible for paying for that treatment, at least if and until you settle or win your Workers’ Compensation claim.

In the event you are injured at work and you make a claim for Workers’ Compensation benefits and your claim is accepted by the employer/carrier, then the employer/carrier will usually have the right to select a treating physician. This is not always the end of your opportunity to select your own treating physician. In some emergency situations, treatment may have begun before the employer/carrier has a chance to select a doctor of their own. In these cases, if treatment has already begun and is proceeding with a doctor you have selected, then a change may be only available if the employer/carrier makes a motion to change treating physician in front of the Industrial Commission, which is the court system for Workers’ Compensation claims in North Carolina.

Also, you may have an opportunity to make a motion to the Industrial Commission to change your treating physician if the employer/carrier had selected one for you and the treatment is not progressing properly. Your legislators in Raleigh have decided that in order to have your treating physician changed to a doctor of your own choosing, then you must prove beyond a preponderance of the evidence (more than halfway) that the change is reasonably necessary to effect a cure, provide relief, or lessen the period of disability. Your North Carolina legislators have also decided that when you are seeking to choose the doctor who will treat you, the Commission may disregard or give less weight to the opinion of a health care provider from whom the employee sought evaluation, diagnosis, or treatment before the employee first requested authorization in writing from the employer, insurer, or Commission. (N.C.G.S Section 97-25) You can find more information on the North Carolina Industrial Commission website at www.ic.nc.gov.

So, while it is not easy to change your treating physician in an accepted claim, the law provides for a process in which to do this. It has been the experience in our office that most carriers want injured employees to return to work as soon as possible, and this usually means providing the best and most efficient medical care. Of course, insurance carriers have a natural interest in paying less for medical care and not paying for excessive tests and procedures.

Carriers appear to seek a balance struck between the expense of medical treatment and the quick return of a worker to gainful employment. This is not always something that feels like it is in the best interest of the injured worker.

When you have been injured at work and you face these issues, look for the help of an attorney who practices in this field and has dealt with these questions before.

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It has been our pleasure to serve the people of Surry County for over 23 years.  Our law office is located near downtown Mount Airy, North Carolina.  We take pride in the service we provide to our clients.  We understand that there are many choices for legal representation and we appreciate the opportunity to help those in our community and surrounding areas with their legal needs.

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At DiRusso and DiRusso, we are familiar with the local economy, the local employers, and the local court officials. Another advantage to hiring local counsel is availability. In larger cities, and in larger firms, the attorneys may not always be available and much of the interaction a client has may be with support staff, such as paralegals and legal assistants. At DiRusso and DiRusso, the attorneys are in regular contact with the clients, available by telephone, and regularly available for appointments.

At DiRusso & DiRusso, we have the legal knowledge and experience to protect you, no matter who or what is on the other side. We also have the compassion to know that you may be experiencing something very unpleasant and we are available to listen to you and seek solutions along the way. We are dedicated to our clients and show no allegiance to any other entity.   We not only counsel our clients on the current law, we provide statutes, rules, cases, and codes so that one may read the current law and have a deeper understanding of the relative law.

If you want to speak with a lawyer about your case, please call us today. There is never a fee for your initial consultation at DiRusso & DiRusso for Workers’ Compensation, Personal Injury or Social Security Disability cases.