Episode 77: Calloway County workers’ compensation attorney Jeff Roberts addresses a question he’s often asked, “How are my workers’ comp benefits calculated?” As he explains, sometimes the individual might already be receiving temporary total disability (TTD) benefits, but there can be mistakes in how these are calculated. Most of the time, the individual is actually being underpaid.
Jeff begins by requesting the payroll records for the injured worker. The initial factor that needs to be determined is what the employee’s average weekly wage is. TTD benefits are paid at 66.67% (sixty-six and two thirds) of the average weekly wage. This amount is subject to a cap that can change on a yearly basis. In 2023, the cap was $1,118.43 per week. This would be the maximum paid by workers’ compensation, even if your average weekly wage was higher. As Jeff explains, you may have a union contract that goes higher, with the balance to be paid by the employer.
Calculating Your Average Weekly Wage
There are different ways to calculate this, depending upon how you’re paid. It might be easier to calculate for an injured worker who receives a salary. Others might receive commissions, in addition to base pay. Most of the people Jeff has represented in the past were paid hourly. Truck drivers are generally paid by the mile, so this might fluctuate from week to week.
When a person’s compensation varies, Jeff explains that you have to take the most recent 52 weeks, before the injury. You’ll gather in the information from the payroll records. The pay would be divided into four 13-week quarters. Then you’ll consider the highest quarter.
Another variable relates to overtime. You can use the overtime hours, when calculating the average weekly wage, but you will only consider straight-time pay for those hours, not the time-and-a-half rate.
Jeff discusses how certain jobs may involve a time of unemployment. Individuals involved in road construction often fall into this category. If you file for unemployment benefits, that’s good for the household, but those aren’t classified as wages. Therefore, the unemployment benefits are not included when you’re trying to answer the question, “How are my workers’ comp benefits calculated?” Automotive workers also get trapped in this scenario due to work stoppages and temporary layoffs at assembly plants.
Jeff is optimistic that the issue related to unemployment benefits might be resolved, soon. There is a bill on the governor’s desk, that he will most likely sign, enabling unemployment benefits to be included in the average weekly wage calculations.
Can I Include Income from a Second Job?
This can be a complicated issue. If you are self-employed, that income is not included in calculating your average weekly wage. For instance, some people might cut grass to generate extra money, on the side. In this situation, you’d be considered an independent contractor, so the income you generate is not considered.
However, if your friend has a landscaping company and hires you to mow grass on the weekends, because you’re an employee, those wages would be able to be included. You’d add this income to the income you earn at your primary job.
Interestingly, if you get hurt at your side job (assuming you’re an employee), the income you earn from your primary job would be included in the average weekly wage calculation.
Jeff explains that he worked at the Briggs & Stratton plant, while attending Murray State University. He and other people would take every overtime hour offered, while others decline overtime opportunities. Jeff’s dad worked at General Tire and usually took as much overtime as he could get. Again, the overtime wages are only helpful from a straight-time wage perspective. The time-and-a-half wage rate is not considered.
Remember, regardless of whether income from a second job is eligible, there is still a cap to the amount that will be paid, as discussed earlier in this episode.
What About if I’m Getting Paid a Lower Rate during a Training Period?
In some jobs, the employee receives a lower rate during a training period, before he/she begins earning the full rate of pay. Now, assume you’re injured during that training period. Jeff explains that it may be possible to use the full wage rate, which the worker would have earned after the training period, in calculating the average weekly wage.
If you haven’t worked a full year, so there’s not a 52-week period to use as the basis for figuring out the highest paid quarter. If you’ve worked for 13-weeks, they’ll use that basis. This gets even more complicated if the employee is injured, but hasn’t actually worked a full quarter. In this situation, Jeff may be able to use the wages from someone who has done the same job for the same employer for at least a 13-week period. The law allows this method to be used and Jeff has had to do it frequently, over the years.
You Should Consider Getting an Attorney Involved
As Jeff explained at the beginning of the episode, it’s quite possible you’re getting underpaid from your workers’ comp benefits. If any of these “special” situations are similar to yours, you should speak to an experienced, workers’ compensation attorney. You may not even realize you’re being underpaid.
Kentucky uses the AWW-1 Form (Average Weekly Wage 1) in calculating the amount. This should be filled out by the employer. Unfortunately, they often try to exclude holiday pay, vacations, sick pay, etc. For this reason, Jeff requests the AWW-1 form and the actual wage records for the injured worker. A mistake, whether intentional or unintentional, can have a significant negative impact on the amount of workers’ comp benefits the individual receives.
Do I Need to Tell My Employer I Have a Side-Job?
Jeff explains that, yes, it’s a good idea to make sure your supervisor or someone in management is aware you have a side-job. If the employer doesn’t know you have a second job, the income from that job doesn’t get included in the average weekly wage calculation. The employer has to know you are working a second job.
In Episode 23, Jeff discussed how to avoid workers’ comp mistakes. While you’re not required to tell your employer you have a second job, it can actually be to your benefit if you are injured and have to file for workers’ compensation.
How Long Will I Receive TTD Benefits?
Temporary total disability benefits are paid while you are off work due to doctor’s orders. Because you suffered a workplace injury, and can’t go to work to earn a paycheck, TTD benefits are paid to supplement your income. They are paid until you reach a level allowing you to return to work or you reach maximum medical improvement.
A Second Job Can Affect Permanent Disability Benefit Payments
Another aspect to your worker’s comp benefits is understanding how much you’ll receive once you reach the point you can return to work or you’ve reached maximum medical improvement. If you have a second job, that will factor into any permanent disability benefits you might receive. Your permanent disability benefit payment will usually increase because you have that second job.
Is there a Deadline for Me to File for Workers’ Compensation?
There is a time limit known as the statute of limitations. Jeff explains you have 2 years from the date of your last TTD payment to actually file a Kentucky workers’ compensation claim. To confuse matters, an employer might have a salary continuation, which they use instead of the TTD payments. Those salary continuation payments do not extend the statute of limitations, so it’s easy for you to actually to beyond your statute of limitations, without realizing it, and then not be able to file a workers’ comp claim. This is a very serious issue you should discuss with a workers’ compensation attorney soon after your injury.
It doesn’t cost anything for you to call and speak with Jeff about your workplace injury. He explains how his contingency fee arrangement works, in Episode 56.
What Do Other Clients Think About Jeff?
We always encourage listeners to read the Google Reviews Jeff Roberts has received from many of his clients. A 5-Star rating and the comments are earned recognition and demonstrate Jeff’s commitment to his clients. As a solo attorney, he has more Google Reviews than some firms with multiple attorneys. Jeff shares the credit with his staff at the Roberts Law Office. Successfully representing a victim of an automobile accident is a team effort. It’s why Jeff likes to say his firm offers small town service with big city results.
Jeff Roberts Represents Injured Clients Throughout Kentucky
With offices located in Calloway County and now Christian County, Jeff has a history of representing personal injury clients, workers’ compensation clients and social security disability clients across the state. He’s represented clients from Paducah, Bowling Green, Louisville, Covington, Whitesville and many other Kentucky locations. He’s not just a Western Kentucky injury attorney.
We hope you found this episode insightful and helpful. Thank you for listening!
Is It Time to Speak with an Attorney about Your Workplace Injury Claim?
The office phone number is (270) 753-0053 or toll free at 800-844-5108. For more information, visit www.JeffRobertsLaw.com. This podcast is meant to provide information and is not legal advice. Jeff’s principal office is located at 509 Main Street, Murray, Kentucky. Co-host Jim Ray is a non-attorney spokesperson. This is an advertisement.
