CHASENBOSCOLO injured workers Archives

In my last blog post, I discussed recent developments in the workers’ compensation law in the District of Columbia with regard to injured workers being paid based upon wages lost at one or more jobs as a result of a work injury. This is referred to as “wage stacking.” Let’s now delve a little more deeply into how lost wages are calculated and how injured workers are paid when they are recovering from and living with their injuries.

A Brief Review on Wage Stacking

To briefly refresh, I believe that one of the most important benefits, aside from medical care and treatment designed to get you better and back to work, are the wage replacement benefits you are entitled to receive while you recover from your injuries and are unable to work. These are known as temporary total disability benefits.

In the District of Columbia, where I focus the majority of my practice, injured workers are entitled to “stack” their wages for purposes of the calculation of workers’ compensation benefits. This means that injured workers who are working at two or more jobs at the time of their injury are entitled to be paid based upon lost wages from both jobs. The law makes no distinction in terms of how much injured workers are entitled to be paid depending on which of their two jobs they were performing when injured. In other words, even if someone is injured while working at a job that pays $100.00 per week, and the injury prevents them from also working at their job that pays you $1,000.00 per week, they can still “stack” their wages.

Unfortunately, this is a key area of the law where Maryland and Virginia are lacking. In Maryland, injured workers cannot stack their wages at all. So, if someone is injured while working at their part-time job and misses time from a much more lucrative full-time job, the state of Maryland has determined that they are out of luck and just have to deal with the very limited income replacement benefits. Virginia has essentially a “middle ground” law between D.C. and Maryland. In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured.

This, of course, can lead to disastrous outcomes such as being unable to feed their family, being evicted or foreclosed upon, or any other of the other travesties detailed in a 2015 article by National Public Radio.

How are Temporary Total Disability Benefits Calculated?

In all three jurisdictions, temporary total disability benefits are paid at 2/3 of an injured worker’s average weekly wage (the resulting amount of the payment is referred to as a “compensation rate”). Although the average weekly wage has been calculated using gross (pre-tax) wages, and although the compensation rate is not taxed, this still usually leaves injured workers in the hole while they are out of work and recovering from their injuries. I say this because 66 2/3% of your gross wages is generally less than the amount of take-home wages even if a person is taxed by the federal government, state and local governments, and makes some contribution for health insurance. Insurance companies and the drafters of the workers’ compensation laws would have us believe that this should somehow “incentivize” injured workers to want to return to work as quickly as possible, but I have only ever seen it have negative consequences when my clients have attempted to return to work earlier than their doctors would permit only because they need to earn more money to keep up with their financial obligations. In short, I think it is a travesty of justice to only pay injured workers 2/3 of their gross wages. This figure should be closer to, if not in excess of, 73% in our region based upon the average percentage of income paid as federal tax (21%) and the average state and local taxes paid by residents of Virginia and Maryland (5.63% and 6% respectively).

Generally speaking, an injured worker’s average weekly wage is calculated based upon his or her gross earnings within a set timeframe immediately preceding the work injury. A major difference in the three jurisdictions, however, is the number of weeks that are factored into the calculation of an injured worker’s average weekly wage. Virginia allows for the calculation of average weekly wage based upon the earnings in the entire year prior to the work injury; the District of Columbia allows for the calculation to be based upon the half year prior; and Maryland allows for the calculation to be based upon the 14 weeks prior to the work injury.

As always, however, there are numerous exceptions to every rule. For example, many people work in seasonal employment. This can include those who work in retail during the holiday season, those who work in landscaping or other outdoor service jobs, employees at the major sports arenas and stadiums in the area, and even teachers who choose to get paid on a nine month cycle as opposed to a 12 month cycle. In these situations, the injured employees are not prejudiced by the fact that they did not have steady earnings during the entirety of the time period generally used for calculation of their average weekly wage.

Similarly, if an injured worker had recently returned to work from a prior injury or had recently started working at the job, then only the wages as of the date of return to work or the beginning of employment will be considered. It is also long-settled law that weeks in which the injured worker did not work will be excluded from the calculation. See United Parcel Service v. D.C. Department of Employment Services, 834 A.2d 868 (D.C. 2003). The same principle would, of course, apply to any vacations taken during the relevant time period.

What counts as wages?

Perhaps the most interesting aspect of the average weekly wage calculation, at least to me, is what is included in the definition of “wages.” I have seen this arise in my practice in multiple, very interesting instances. For better or for worse, the District of Columbia has determined that, in certain instances, not all employee benefits are considered to be wages. I represented a union member who was paid, under his union’s collective-bargaining agreement, both regular hourly wages as well as employer-paid contributions into his retirement plan and health savings account. All of these things were paid for out of the same chunk of money (and I liken this to a non-union employee paying a portion of their wages into a 401(k)), but the District of Columbia courts determined that only the money paid as actual wages to my client would get included in the calculation. Unfortunately, this area of the law is pretty well settled under both the District of Columbia Workers’ Compensation Act as well as its predecessor (which also happens to be one of the federal workers’ compensation laws), the Longshore and Harbor Workers’ Compensation Act.

Other injured workers who I routinely see fall victim to the District of Columbia law regarding the definition of wages are those who work in employment where they are paid both wages and tips (generally, these people are waiters or waitresses). The D.C. workers’ compensation law only allows for the inclusion of tips only if they have been declared for tax purposes. D.C. Code § 32-1511(b). Unfortunately, as most of you who have worked in the service industry will know, this is rarely done, or people generally under value the amount of compensation they are paid in tips. This can lead to financially ruinous results when one of these employees is injured on the job and only paid based upon his or her less-than-minimum-wage hourly wages and not the tips that form the bulk of that person’s take-home pay.

One other interesting aspect of the law regarding the calculation of average weekly wages comes from the same subsection as the language regarding the inclusion or exclusion of tips. That subsection also allows for the inclusion of the “reasonable value for board and lodging received from the employer.” D.C. Code § 32-1511(b). Maryland is actually a bit broader and allows for the inclusion of “ the reasonable value of housing, lodging, meals, rent, and other similar advantages that the covered employee received from the employer.” Md. Code, Lab. & Empl. Section 9-602(a)(2)(ii). This section of the law generally applies to those people who live at their place of employment. For example, I have seen this play out for domestic workers, such as butlers and chefs, as well as farmhands working on the chicken farms on the Eastern Shore of Maryland. Although it may seem a little bit strange to include these types of things with in the definition of wages, it makes sense when looked at through the lens of the benefit to the employer: in all of these situations, the employer is deriving a benefit from having its employees housed either on its premises or in very close proximity thereto. In return, when an employee in this type of employment is injured, the law recognizes that the employee is then entitled to transference of the benefit that their employer was getting in the form of it being included in their weekly workers’ compensation checks.

The lesson to be learned from all of this is this: Your “wages” when you are injured at work may not always just include what you take home from the specific job in which you were working at the time of the injury. It is important to hire an attorney who is experienced in workers’ compensation and who can properly advise you and advocate on your behalf to ensure that you are not suffering from a substantial loss of income during a very difficult time in your life.

After a major injury while at work, the last thing you may be thinking about is getting back to work. Between medical care, household bills and pain from your injury, the idea of returning to life as normal may seem like a dream. Many of our clients come to us with no knowledge of the workers’ compensation system, which was originally meant to be a “user-friendly” system that an injured worker could navigate without the assistance of a lawyer. Many injured workers quickly find out it is anything but, and that’s when they come to us for help. The goal of any workers’ compensation attorney is to help their client navigate the system and to help them eventually return their life to normalcy.

I have the privilege of working with some fantastic, seasoned attorneys here at ChasenBoscolo who are able to explain the complexities of the law, comprehend and analyze medical records and make sophisticated legal arguments on a daily basis. While all this is crucial to our mission of taking care of our clients, sometimes the best advice is the simplest. Through our experience handling workers’ compensation cases throughout D.C., Maryland and Virginia, we have found that there are certain universal truths to dealing with the workers’ compensation system. One of the basic rules of getting through your workers compensation case is, “When your Doctor tells you to go back to work, try.”

Why should I try to go back to work?

For many people, returning to work after an injury can be scary idea. Will I get hurt again? Will I be able to do my job like I used to? Will my employer treat me differently? While the barriers, both physical and mental, of returning to work can be high, we have found that there is a great value in attempting (and hopefully succeeding in) returning to work.

The first reason for this is a practical one: workers’ comp only pays you 2/3^rd of your average weekly wage. In the world of workers’ comp, you will hear a lot about “AWW” and “Comp Rate.” Your comp rate is determined by taking 2/3^rd of your average weekly wage. This is the amount that will be paid to you while you are temporarily and totally incapacitated from work. While this amount is tax free, it presents a financial burden to many clients, as it is typically less than most clients take home. Also, depending on your employer’s policies, you are often missing out on other benefits, such as contributions to retirement plans, health insurance and many other benefits. We understand the financial burden that a workplace injury can place on our clients.

The second reason is more of an emotional one. For many, like all of us here at ChasenBoscolo, our workdays are not just a source of a paycheck. Work can be a calling, a mission, a way for us to help and care for others. Without the ability to contribute to the world, one’s self-worth can often suffer.

Work can also be a place for social connections. Missing out on work for months at a time can be isolating. Returning to work allows injured workers to be around supportive co-workers and remain in touch with their workplace friends.

What if my doctor says I can work, but puts restrictions on what I can do?

One of the most crucial points in any workers’ comp case is when an injured worker has been cleared by their doctor to return to some sort of work. This is often called “light duty,” or returning to work with restrictions—a doctor can write a list of temporary or permanent restrictions outlining what physical restrictions an injured worker may have when they return to work. Under Virginia Code § 65.2-502, an injured employee who has been returned to work in some capacity is entitled to temporary partial disability benefits. When you return to work but are making less than you were pre-injury, either because your employer has found a new temporary job for you or because you are working fewer hours, your employer will be responsible for the temporary partial benefits. In order to prove eligibility for temporary partial disability benefits, an injured worker has to show that they have restrictions on what they can do at work and that they are earning less than they were at the time of their injury. There are also other responsibilities that the Virginia Workers’ Compensation Commission places upon an injured worker in this situation, and if you find yourself in this position, you should consult with an experienced workers’ compensation attorney to explain these.

Sometimes, after a workplace injury, your employer could offer you work within your restrictions, often called selective employment. Here, the burden is on the employee to attempt to do the work offered within the treating doctor’s recommendations. Under Virginia Code § 65.2-510, if an employer offers an injured worker selective employment, that is, employment within the restrictions, and the employee refuses, they will not be entitled to wage loss benefits. This is another reason why, when given the chance to return to work, in this case for your prior employer, it is best to do so.

An injured worker who has been cleared by their doctor to return to a partial work capacity and is making less money than they were pre-injury, either because of reduced hours or because their employer does not have a light duty position for them to return to, is obligated to “market” their remaining work capacity. What this means, in layman’s terms, is to look for another job.

While the requirements of marketing that will satisfy the Virginia Workers’ Compensation Commission are best addressed in their own, separate blog post, the marketing requirement shows the importance that the Commission places on attempting to return to work.

An entire cottage industry of vendors has developed to help insurance companies lower their costs and return injured workers to gainful employment sooner. One is a specific type of physical therapy called work hardening or work conditioning. The goal of either of these programs is to condition the body to return to a full day of work, prevent future injury and assist individuals in getting back to work. Oftentimes, these programs simulate the activities that an injured worker will perform at work and are meant to help the injured worker have an easier, as well as a faster, transition back to work. Injured workers should attempt to participate in these programs to the extent that they are in agreement with what their doctors are ordering.

One of the most difficult conversations workers’ compensation attorneys have with their clients is about the things that workers’ comp cannot do for them. The list is large, but one of the toughest is the inability to hold your job. Workers’ compensation, unlike FMLA leave, does not mandate that your employer hold your job for you. This varies from employer to employer, but it is always best that employees keep open the lines of communication between themselves and their employer while they are out on medical leave. By returning to work quickly, or at least demonstrating to your employer a willingness to attempt to return, many injured workers increase their chances of their job being there once they are cleared to return to work.

When an injured worker is under an “open award,” but they have been cleared by a doctor to return to “full duty” work, the employer will most likely file to terminate their benefits based on the worker’s ability to return to work. The test here is if the injured worker is able to return to their pre-injury job. When a Commissioner is examining the injured worker’s capabilities, they will look beyond the medical records. Meekins v. Legends Group/Heritage Golf Club, 77 O.W.C., holds that a bona fide attempt to return to work is better evidence than a medical opinion of the employee’s ability to do so. If an offer of selective employment is made to an injured worker within their restrictions, the burden is on the worker to show that they were justified in refusing the work. If an injured worker has actually tried to return to that work and experienced too much difficulty, the Commission will give great deference to that credible testimony.

In Sky Chefs v. Rogers, a truck driver was injured while working for Sky Chefs, which prepared and delivered food to airplanes. Sky Chefs, Inc., v. Rogers, 222 Va. 800. The insurer eventually filed an application alleging that Mr. Rogers could return to his regular employment, therefore cutting off his workers’ compensation benefits. Mr. Rogers eventually returned to work, but while at work, he was in pain, and eventually fell. Even in the face of difficult medical testimony against the claimant, the Commission found that he was unable to perform his work duties, based on his credible testimony about his return to work. “The commissioner found that Rogers ‘functional inability to continue to perform his food handling duties (associated with his persistent symptoms of periodic numbness, pain and swelling) casts doubt upon the employer’s assertion that the claimant was able to return to his former employment in the date in question.”

Another reason it is important to try to return to work is for the possibility of job and career advancement, including any pay raises. While you can receive wage loss benefits for up to 500 weeks in workers’ comp, the rate at which you will be paid is “locked” to when you get injured (with the exception of small cost of living increases). If you work in a field with regular pay raises annually, or different levels of compensation, your workers’ comp payments will not reflect that. By not working, you are missing the opportunity to grow in your career and make more money.

An example of where the commission looked favorably on an injured worker who returned to work is the Starbucks Coffee Co. v. Shy case. Here, Ms. Shy was out of work, but returned for a brief period of 12 hours. Her employer attempted to terminate her benefits, but the Commission found that the employer did not meet their burden of demonstrating that the injured worker could return to her work duties. The burden is on the employer to demonstrate that the injured worker is capable of returning to work, and as this case shows, they cannot meet this burden by simply saying that the injured worker worked for a brief period of time.

There have been times when the Commission has looked harshly upon injured workers who they believe could return to work and haven’t. This can have the effect of termination of benefits. In Webb v. Eastern Airlines, the court found an injured flight attendant did not properly attempt to return to work. Here, the company’s written policy was that an injured employee must be cleared by the company’s doctor. She did not have this clearance, but there was no evidence that she attempted to get this clearance: “there is no evidence that she attempted to return to work or comply with Eastern’s policy.” The Commission seems to be saying that the injured worker didn’t even try to get back to work, and because of this, her benefits were terminated.

What if I don’t think I’m ready to go back to work?

One of the most frequent questions that we get as workers’ compensation attorneys is from injured workers who do not feel either mentally or physically able to return to work, but who have been cleared by their treating doctor, to return. In order for your medical providers to return you to work, it is crucial that they understand the physical requirements of your job. It is not enough to tell your doctor your job title or that you lift things. Describe in as much detail as you can what your day-to-day job duties are, and how many times per day you are expected to perform them. A doctor may be returning you to work without a full understanding of the requirements of your job, and therefore, returning you too early or before you are able to perform your job tasks. It is also crucial that you communicate all your restrictions to your employer.

One of the best moments for any workers’ compensation attorney is when a client can successfully return to work. While we understand that this goal is not always achievable, we hope to be able to help as many people as possible get there successfully.