The Importance of Wage Orders

 

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.

New Link – WSLC

I added a link in our Blogroll today. It will take you to the home page for the WSLC – The Washington State Labor Council. Our State Legislature is in session,  and although this is a ‘short session’, there are still many proposed bills of interest to workers in general and injured workers in particular. The WSLC does a terrific job working these legislative issues, and their website is a great place to go for summaries and updates.  Our office is active with WSTLA(Washington State Trial Lawyers) in working on workers compensation legislative issues with the Labor Council and its various affiliates. Some years are busier than others, but there are always a number of proposed workers compensation bills which  cover the range from good to bad to ugly.  Check out the WSLC site for an update on this years’ activity, and check back with us at the end of the legislative session for an update on any significant legislation in the workers compensation area.

Can I sue my employer?

It’s a common question. “Can I sue my employer, it’s their fault I got hurt at work?”  The question usually comes with a story about an employer breaking safety rules, a coworker doing something wrong or unreasonable work expectations.  The worker is hurt, out of work, and frankly, angry. Their boss shouldn’t be allowed to get away with this, should they?

Although it is not the answer most people want,  as a general rule, you can not sue your employer for your work related injury. (There is a narrow exception for intentional injuries which we’ll talk about another time) Here comes the history lesson. In 1911 Washington State employers and labor entered into a great compromise. They weren’t exactly reinventing the wheel, workers compensation laws were being passed across the country. It had become painfully clear the Common Law system for resolving lawsuits was not effective for work related injuries. Workers waited too long for financial and medical assistance, the cost to the employer was unpredictable, and the loss to the State’s economy was growing. The preamble to our Industrial Insurance Act is really sort of inspiring,  if you’re in the mood to be inspired. RCW 51.04.010  In a nutshell, workers are valuable, and the State should protect them. So, the great compromise.

There would be an administrative system to provide sure and speedy benefits to injured workers. The worker does not have to prove negligence. In other words, it is a no fault system, it does not matter why the injury happened. In exchange for these sure and speedy benefits  and a no fault system, the injured worker gives up the right to sue the employer. The damages which the worker can recover are limited to those specific benefits found in the statute.

So, think of the typical auto accident case. If someone is hurt, they go to the doctor,  and pay the medical bills. If they miss work, they lose the pay. There is a civil suit filed. Each side points at the other as being the one at fault. It can take years to resolve. When all is said and done the injured party can recover the costs of medical care, lost wages, pain and suffering and other damages proven to the court, but only if they can show fault or negligence . 

In workers compensation we aren’t concerned with fault. we want to make sure you get appropriate medical care, and time loss to replace any lost wages as soon as possible. No delay, no long lawsuits.  So, “No” you can’t sue your employer. But,  you can and should file a workers compensation claim if you are injured at work, that’s how you protect yourself.

Note: for another day. What if someone besides my employer causes my work injury?