If a workers’ compensation injury prevents you from earning the wages you earned prior to the work injury, you may be entitled to indemnity payments paid by the workers’ compensation carrier. There are three types of indemnity (wage) payments that the carrier would be responsible for after a work comp claim – Temporary Total Disability benefits, Temporary Partial Disability benefits; and Permanent Total Disability benefits. Each of these categories could warrant multiple pages of explanation, but this article will simply summarize each of the types of indemnity benefits after an explanation of how the carrier calculates your average weekly wage (AWW). Please note that if you are injured in a workers’ compensation accident, you should consult an attorney who understands Florida’s work comp law to make sure you are getting all your benefits.
How Your Work Comp Average Weekly Wage is Calculated
Before knowing what indemnity (wage) benefits must be paid after a work comp injury, it is important that you understand your average weekly wage (AWW) because all indemnity benefits are paid based on the AWW.
Florida Statute 440.02(28) defines wages as follows:
(28) “Wages” means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the injury and includes only the wages earned and reported for federal income tax purposes on the job where the employee is injured and any other concurrent employment where he or she is also subject to workers’ compensation coverage and benefits . . .
As you can see, if the wages are reported to the IRS as income, they cannot be used to calculate the average weekly wage. However, income from a second or third job reported to the IRS is most times included in the calculation of the average weekly wage. There are exceptions to whether your second job’s wages are included in the calculation of the AWW (such as working as an independent contractor) so it is important that you talk with an attorney who understands Florida’s work comp law before you agree to an average weekly wage calculation.
Now that we know what wages we can include in the calculation, Florida Statute 440.14 tells us how to do the calculation. It states:
Determination of pay.—
(1) Except as otherwise provided in this chapter, the average weekly wages of the injured employee on the date of the accident shall be taken as the basis upon which to compute compensation and shall be determined, subject to the limitations of s. 440.12(2), as follows:
(a) If the injured employee has worked in the employment in which she or he was working on the date of the accident, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the accident, her or his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks. As used in this paragraph, the term “substantially the whole of 13 weeks” means the calendar period of 13 weeks as a whole, which shall be defined as the 13 calendar weeks before the date of the accident, excluding the week during which the accident occurred. The term “during substantially the whole of 13 weeks” shall be deemed to mean during not less than 75 percent of the total customary hours of employment within such period considered as a whole.
In laymen’s terms, if an employee worked a full-time job concurrently with a part-time job during the 13 weeks before the work comp accident, calculating the average weekly wage is a simple matter of dividing the total earning from both jobs by 13. Of course, it can never be that simple and there are always scenarios that make it more difficult to calculate the average weekly wage. What if the injured worker just started the job before getting hurt and hasn’t worked 13 weeks for the employer? Do they use a similar employee? How is a similar employee defined? These are just some of the issues as to why a whole book on average weekly wage could be written.
TEMPORARY TOTAL DISABILITY (TTD)
You, as an injured employee, are entitled to Temporary Total Disability benefits when your workers’ compensation doctor states that you are unable to do any gainful work. If you are on TTD status, you are entitled to receive 66 2/3% of your average weekly wage (AWW) up to the maximum amount determined by the Division of Workers’ Compensation. In 2019, the maximum compensation rate is $939.00. This means that if your AWW is $400.00, then the carrier has to pay $266.67 (two-thirds of $400), but if your AWW is $2,000, the carrier only has to pay the max of $939.00 even though two-thirds of your AWW would be $1,333.33.
Under recent case law, the injured worker is entitled to 260 weeks of TTD benefits if the workers’ compensation doctor opines that he or she is still unable to do any gainful employment.
However, if you miss just a few days of work because of a work comp accident, you may not be entitled any lost wages. Under Florida Statute 440.12, workers’ compensation wages are not allowed for the first 7 days of the disability unless the injury results in more than 21 days of disability. If the doctor has you out for more than 21 days, you get paid for the first 7 days of lost wages. However, if you miss 14 days of work, then you only get paid for days 8 through 14 and do not get paid for the first seven days.
It is important to know that a workers’ compensation authorized doctor has to provide medical evidence that you are unable to work. Your belief that you cannot do your job with the injury is not enough. You trying to do the work and not being able to do it is not enough. You must have a workers’ compensation doctor state that it is their opinion that your injury prevents you from doing gainful employment.
Your Temporary Total Disability benefit end when one of these events occurs:
a. When your workers’ compensation doctor says you can do some work;
b. When you return to work;
c. When you reach maximum medical improvement; or
d. When the carrier has paid the maximum weeks of benefits.
If you feel that that workers compensation carrier is not paying the proper temporary total disability benefits, it is important that you talk with an attorney who understands the Florida workers’ compensation law.
TEMPORARY PARTIAL DISABILITY (TPD)
You may be entitled to temporary partial disability (TPD) benefits after a workers’ compensation injury if you (1) are not totally disabled; (2) have not reached maximum medical improvement; (3) are medically able to do some work but not the full pre-injury work; and (4) you are earning less than 80% of pre-injury wages.
The law states that TPD benefit are not payable unless the medical conditions caused by the work comp accident created restrictions on the ability to return to work. They are not payable unless the evidence shows that the reduction in earning is caused by work restrictions that were caused by a compensable work comp accident.
Within five days after the carrier learns that the workers’ compensation carrier has released you to restricted work, they are required to send you a letter outlining your rights to TPD benefits. This letter also is send to the employer. If the employer contacts you about returning to work on light duty, you have an obligation to try the work. Refusal of light duty work could result in your losing temporary partial disability benefits.
You, as the injured worker, are required to return completed Employee Earning Reports (EER forms) showing the carrier whether you returned to work and what earning you received. Your failure to timely return the EER forms could result in the delay in payment of temporary partial disability benefits.
The calculation of Temporary Partial Disability benefits can be tricky. The statute states that “compensation shall be equal to 80 percent of the difference between 80 percent of the employee’s average weekly wage and the salary, wages, and other remuneration the employee is able to earn post-injury, as compared weekly.” It is best understood by these examples:
a. Employee has an average weekly wage of $400.00. He has restrictions that prevent him from working his old job and the employer has no light duty. Since he is earning zero in wages, he is entitled to 80% of 80% of his average weekly wage. Thus, he would be entitled to TPD benefits of $256.00.
b. Employee has an average weekly wage of $400.00. He has restrictions that prevent him from working his old job, but the employer has light duty work for him and pays him $200.00 a week for performing the light duty work. The $200.00 he is earning is less than 80% of his AWW so he is entitled to TPD benefits. His calculation would be $320.00 (80% of his AWW) – $200.00 (amount earned on light duty) = $120.00 x 80% = $96.00 of TPD benefits.
c. Employee has an average weekly wage of $400.00. He has restrictions that prevent him from working his old job, but the employer has light duty work for him and pays him $320.00 a week for performing the light duty work. Since the $320.00 he is earning is not less than 80% of his AWW, he is not entitled to TPD benefits.
As you can see, the calculations for Temporary Partial Disability benefits can be complex. If you feel that the carrier is not paying the correct TPD benefits, you should talk with an attorney who understands Florida’s workers’ compensation law. Be sure to have proof of all your post-accident earnings with you.
PERMANENT TOTAL DISABILITY AFTER A WORK COMP INJURY
Whenever a judge or the carrier decides an injured worker is permanently and totally disabled, the injured worker is entitled to permanent total disability benefits that equal two-thirds (66 2/3%) of the worker’s average weekly wage (up to the maximum compensation rate).
Permanent Total Disability benefits end at age 75. However, this age limitation does not apply if the injured worker is not eligible for social security disability or retirement benefit only because the work comp injury prevented the worker from working enough quarters to be eligible for SSD benefits.
In addition to PTD benefits, the law entitles permanently and totally disabled workers to receive supplement benefits. These benefits are equal to three percent of the injured worker’s AWW multiplied by the number of calendar years since the date of injury. However, the law states that these supplemental benefits “shall not be paid after the employee attained age 62.” As a result, you can receive PTD and supplement benefits together until you turn 62. Thereafter, you just receive PTD benefits.
Florida Statute 400.15(b)(1) states that there are some conditions that injured workers are presumed to be permanently and totally disabled unless the employer or carrier can establish that the employee is physically capable of engaging in at least sedentary employment within a 50-mile radius of the employee’s residence. These include the following:
1. Spinal cord injury involving severe paralysis of an arm, a leg, or the trunk;
2. Amputation of an arm, a hand, a foot, or a leg involving the effective loss of use of that appendage;
3. Severe brain or closed-head injury as evidenced by:
a. Severe sensory or motor disturbances;
b. Severe communication disturbances;
c. Severe complex integrated disturbances of cerebral function;
d. Severe episodic neurological disorders; or
e. Other severe brain and closed-head injury conditions at least as severe in nature as any condition provided in sub-subparagraphs a.-d.;
4. Second-degree or third-degree burns of 25 percent or more of the total body surface or third-degree burns of 5 percent or more to the face and hands; or
5. Total or industrial blindness.
In all other cases, you, as the injured worker, must establish that you are not able to engage in at least sedentary employment, within a 50-mile radius of your residence, due to your physical limitation. This is often tough as the employer/carrier will retain vocational experts to argue there are jobs such as a Walmart greeter, tollbooth operators, or similar job close by that you can perform.
This brief discussion of PTD benefits only covers a small portion of the issues involving entitlement and payment to permanent total disability benefits. Entire books are written on the subject so if you have questions, consult with an attorney who understands Florida’s workers’ compensation law.
If you are injured at work and have questions about how the insurance company calculated your indemnity (wage loss) benefits, it is important that you talk an attorney to make sure your average weekly wage is properly calculated so that the proper indemnity benefit is paid. Attorneys Matthew Noyes and Lorrie Robinson have been helping injured workers fight for their work comp benefits for decades. Click here to contact us for a free consultation.