The claimant’s average weekly wage (“AWW”) lays the foundation for calculating weekly indemnity payments. It is, therefore, imperative to correctly calculate a claimant’s average weekly wage under the (not-so-clear) provisions of the New York Workers’ Compensation Law (“WCL”). Section 14 (4) of the WCL defines the claimant’s AWW as one fifty-second (1/52) of the claimant’s average annual earnings. Put simply, this means, the claimant’s yearly gross income divided by 52, the number of weeks in a year. This raises the question of calculating a claimant’s yearly income.
Section 14 (1) guides in calculating the annual wage for claimants who worked in the same employment at the time of the accident, whether for the same employer or not, during substantially the whole of the year immediately preceding his injury. WCL §14(1). For section 14 (1) to apply, the claimant needs to have had the same job for most of the year preceding his work-related injury, regardless of whether he had the same employer. Id. Once the claimant meets this criterion, his annual earnings are the product of his daily wages and either 260, if he worked 5 days a week, or 300, where the claimant worked six-day weeks. Id. Continue reading Calculating Average Weekly Wage Under Section 14 of the New York State Workers’ Compensation Law→
The New Jersey Workers Compensation Act specifies that in the case of total disability, the petitioner is entitled to payments for a period of up until 450 weeks. See N.J.S.A. 34:15-12(b). If the petitioner perishes as a result of his workers compensation injury, the Act provides us with guidance for the petitioner’s dependents at the time of death. For example, in the case of a surviving spouse, the Act directs us to N.J.S.A. 34:15-13(j), which states that the surviving spouse shall receive payments for the “entire period of survivorship or until such surviving spouse shall remarry.” See N.J.S.A. 34:15-13(j).
In the case of children as dependents, the plain language of N.J.S.A. 34:15-13 tells us that us that they are entitled to payments up until the age of 18, unless they are physically or mentally deficient which would allow them to collect on the “full compensation period of 450 weeks.” See N.J.S.A. 34:15-13(i). The plain meaning of this statue leads one to interpret the language as limiting disabled dependents to 450 weeks of compensation following the death of the petitioner, unless they are a surviving spouse.
About one-in-five of the new cases filed in the New Jersey Division of Workers’ Compensation this year will be a “re-opener” claim. Formally called an “Application to Review or Modify a Formal Award” or “Application for Modification of Agreement” as per N.J.S.A. 34:15-27, these claims are brought by petitioners who allege that they have a need for treatment, have new lost time, or have an increase in the amount of permanent partial disability.
What types of cases are eligible for “Re-Opener?”
Compensable workers’ compensation claims are often resolved by way of an “Order Approving Settlement.” Such a settlement requires the employer/respondent to continue providing medical treatment for the injuries described on the Order Approving Settlement. In addition, a claimant has the right to “re-open” her claim for a period of two years from last compensation paid. Additionally, claims resolved by way of Judgment (award following litigation) are subject to re-opening by the petitioner.
As per the statute: A formal award, determination and rule for judgment or order approving settlement may be reviewed within 2 years from the date when the injured person last received a payment upon the application of either party on the ground that the incapacity of the injured employee has subsequently increased.Continue reading “Re-Opener” Awards in New Jersey→
Awards for wage replacement are equal to 66.6% of the employee’s average weekly wage, subject to maximums (currently $ 870.61) and minimums (currently $150 per week). Workers’ Compensation Law § 2(9) defines wages as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including the reasonable value of board, rent, housing, lodging or similar advantage received from the employer.” In addition to monetary wages, some employee are paid other consideration for performing work, such as tips, bonuses, and housing allowances or “room and board.”
In these cases, the reasonable monetary value of the room and board is to be established an included in the employee’s wages. Smith v. St. Mary’s Hospital, 259 N.Y.S.2d 373 (3d Dept. 1965). While the employee may seek to inflate the value of this consideration, and the employer may seek to deflate the value, the ultimate determination of the valuation of room and board is up to the Board. The Board does not have to accept the figures offered by either the claimant or the defense, but can set its own value for the room and board. O’Neil v. William Randolph Dairy Farm, 410 N.Y.S.2d 695 (3d Dept. 1978).
Practically speaking, where an employer is offering to include room and board in the wage calculation, the employer should use a best estimation where no fixed price is available. The claimant is free to argue that the room and board is undervalued, and ultimately a Law judge will make the determination.
This is video from a live presentation from attorney Greg Lois and answers the following questions: “How do I defend a Motion for Med and Temp in New Jersey?” and “What medical treatment is required under the statute?” and “What are the common defenses used by a Respondent when facing a motion?”
At the end of the presentation, attendees will understand what a Motion for Temporary and Medical Benefits is, what exposures are posed by the motion, and how to best defend the motion.