Timely payment of lost wages is critical for most injured workers, but there are a lot of requirements that an injured worker needs to be aware of.
The obligation to pay wage loss is triggered when the insurer receives notice of the claim and a copy of the work restrictions. It is very important that workers get written work restrictions each time they see the doctor. Some doctors give an expiration date for the restrictions, others leave them open ended. Either way, it is important to know when new restrictions are needed because they can only be backdated up to 14 days.
The rate of wage loss is 2/3 of the workers’ average weekly wage for up to a year prior to the injury. This is an easy calculation for a salaried employee, but much more difficult for workers who have changes in their hours, duties or wage rate in the year leading up to the injury. Highly compensated workers also need to be aware that the benefit rate is capped at 133% of the Oregon Average Weekly Wage. The current maximum benefit amount is $1,658.68.
Workers with more than one job have only 30 days from the date the claim is filed to let the insurer know that they have more than one job. Since this runs from the date of the claim, and not the onset of the disability, it is a trap for the unwary.
Disability can be total or partial. Temporary partial disability (TPD) means the worker is released to modified work. Temporary total disability (TTD) means the worker is not released to work at all. If a worker is released to modified work, but the employer has none to offer, the full wage loss payments continue. If the worker is earning wages from the employer at injury or from another source, they have a duty to report those so the insurer can calculate what they owe for the difference. To avoid delays, it is important to provide responses when the insurer requests information about any wages received since the last payment.
Some clients ask if they can accept new employment while they go through their claim. I normally tell these clients that their new wages will offset against any wage loss they are already receiving, so it’s very difficult to make up any loss in monthly income that way. That said, opportunities can be fleeting, and there is no downside to accepting better long term employment while the claim is ongoing so long as it does not hinder the recovery or cause additional injury.
We routinely review wage loss issues for our clients. We collect the pre-injury wage records from the insurer to make sure the rate is correct. We then collect the post-injury wages to review any pro-rates that have been applied. Finally, we get a ledger of the payments to review for delinquent payments. If we find mistakes, our fees are paid by the insurer in addition to your benefits, and you may be entitled to a 25% penalty on the amounts that were withheld. While that doesn’t fix all the problems caused by delinquent or inaccurate payments, it can help and we’re happy to do it.