I write about wage orders because they are important, they can be issued early in a claim, and are they are often final before an injured worker ever talks to an attorney.
In a Labor & Industries claim benefits are paid as a percentage of the workers monthly wage at the time of injury. Benefits such as time loss, death benefits and pension or permanent total disability benefits are all paid based on the original calculation of the workers monthly wage at the time of injury. Consequently, getting the monthly wage incorrect, can result in a worker receiving less benefits then they are entitled to receive for the life of the claim. Hopefully, you are back to work quickly, but for those workers with a serious injury and long-term disability, the value of underpaid benefits can be significant.
I’ve been told by those at the department that correctly calculating a worker’s monthly wage is the single most complicated task a claims manager does on a newly filed claim. There are so many considerations which can effect the equation. Is the worker a regularly scheduled worker or a part-time or seasonal worker? What is the rate of pay? Are there different pay differentials for different shifts? Is the worker paid for overtime? Does the worker receive bonuses, commission, or a per diem? Does the employer make contributions to the worker’s health care benefits? Is the worker employed at more than one job? These are just some of the many issues which must be considered in setting the monthly wage for purposes of paying benefits under a claim.
Time loss benefits may be paid at the beginning of the claim on temporary orders or on a provisional basis. These benefits will be paid using the most accurate, quick and dirty, calculation the claims manager can make using the information currently on hand. The claims manager may send a request to either the worker or the employer requesting additional information or clarification of wages paid. When the claims manager believes all relevant information is in the file, a final wage calculation is done and a wage order is issued. Previously paid benefits will be adjusted to reflect the correct calculation. This may result in an extra payment of time loss (yeah!) or an overpayment (hiss!) The department does try to avoid overpaying time loss on a claim, but it happens. The overpayment can be deducted from future payments on the claim.
Because the Department is trying to avoid underpaying or overpaying benefits, claims managers are encouraged to collect the necessary information and issue the wage order early in the claim. You may see a wage order in the first few weeks of filing your claim if you are receiving time loss benefits.
The wage order will look similar to the other orders you may have received on your claim. It will provide the details on how the monthly wage was calculated, including any overtime, bonus, health care benefits or other consideration which was included in the calculation. The wage order will also let you know what was not included. For instance, if no overtime is included, there will be a zero next to overtime. The wage order is suppose to have enough information for you to determine how the monthly wage was calculated, and what was included.
The wage order will have the magic 60 day protest or appeal language. If no protest or appeal is filed in writing with either the Department of Labor & Industries or the Board of Industrial Insurance Appeals, the order will become final and binding. Even if the wage order is clearly incorrect based on the information in the file, it can not be changed later if a timely protest or appeal was not filed. (This rule was clarified in a case called Marley, and was a hot topic in my household one legislative session; that session saw a change to the statute allowing the department to correct an underpayment of benefits under the same circumstance they had always been able to collect an overpayment of benefits; and we ended up with a dog named Marley that session – but that’s another story. . .) I always review a new file for a wage order. Oftentimes the order is already final. Even if I believe the monthly wage was calculated incorrectly there is nothing I can do about it.
This is why it is so important to careful review the wage order when you receive it. That said, if calculating monthly wage is one of the most difficult tasks the claims manager does early in your claim, how are you to know if it was done correctly? That’s a fair question. If you’ve been reading this blog, you’ll know my mantra, ‘talk to a workers comp attorney’.
You will know the basics of your wages. For instance, if you worked overtime and no overtime is reflected in the wage order, you know there is a problem. If the monthly wage listed on the wage order seems lower then you would expect, something may be missing from the calculation. If you worked more than one job, or were paid shift differentials, the monthly wage calculation has the potential to be incorrect simply because it can be complicated. If you’re a construction worker and were treated as a seasonal worker, you definitely have a problem.
If you are at all unsure, get yourself to an attorney who represents injured workers and ask. Do not put it off. You only have 60 days from receipt of the wage order to file a protest. Filing a written protest will stop the clock ticking, and allow us time to gather all the correct information and work on a correct calculation. Filing a protest will not stop your time loss benefits if you are otherwise entitled to them. Time loss will continue to be paid based on the Department’s best calculation. Any necessary adjustment in benefits paid will be made when a new wage order is issued.
So, watch for that wage order to be issued early in your claim. Pay attention to the information in the order about how the monthly wage was calculated. Remember, you have 60 days to take action if you believe the monthly wage may be wrong. This calculation effects many of the benefits paid to you for the life of your claim, and you want to make sure it is done correctly.
WELCH&CONDON 
its been almost 4 years and my husband still doesn’t have a final wage order. L&I has only put a temporary wage order and finally paid retro time loss on the claim last summer, but now they claim the last 4 years time loss were calculated wrong because we are self employed and we filed joint tax return. so they are dividing the bottom line on our taxes in half and are trying to establish overpayment on the other half. I have an entire different issue with my claim, I injured my back in 11-07 and still only have a temporary wage order as well, last week l&I decided to change my wages too. because they miscalculated my wages. they decided to recalculate my time loss wage from 2006 taxes rather than the 2007 wages they had previously requested and calculated from. Now we are looking at a possible 80-100k
overpayment. what the heck how can they do this? the computation mistake was CLEARLY their mistake not mine.
My physician took me off work on 2/18/2009 and my time loss was re-started. Then on 3/18/2009 my employer wrote message protesting two payments that I received after 2/18/2009 stating that the injury was not caused by the on the job injury, which was completely false and there was no documentation from any medical records to substantiate their claim. My doctor had file the APF stating that I could not work and also sent a report saying the same.
I was to receive a payment on 3/25/2009, but the time loss payments have been stopped. I was not given any notice that the time loss was being stopped or what the reason my claims manager was stopping my time loss payments.
Can my claims manager just stop my time loss without notice of when and why? Is there an RCW or WAC that address this issue?
Thank you for any help you can give me in this very perplexing matter.
Unfortunately, no advance notice is required when your time loss benefits are stopped or held. I suggest you call your claims manager and ask why the benefits were stopped (it might not be what you think) and ask what additional documentation is necessary for the benefits to be released. Often, the employer will protest time loss with little or no evidence to support their position. The claims manager may just need to review the file and determine whether benefits are payable. If a call does not clear up the problem, then get yourself to an attorney.