Under the Workers' Compensation Law in New York, you are entitled to 2/3rds of your pre-injury salary, up to a maximum of $400 per week, if the loss of that salary is attributable to your work-related injury. An award for such replacement income is known as a "Lost Wages" award, or alternately, as a "Lost Time" award (since you are not at work).
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However, if you only loose part of your pre-injury salary because your work-related injury forces you to cut back on hours or change professions altogether, then you are still generally entitled to 2/3rds of the difference between your pre-injury salary and your current salary, up to the same maximum of $400. An award under such circumstances is called a "Reduced Earnings" or "RE" award.
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Whether you have "Lost" or "Reduced" earnings is not as easy as it sounds, however. This is because there are various ways of computing your pre-injury, Average Weekly Wage ("AWW") under the various statutory provisions of the Workers' Compensation Law. These various methods exist because the AWW calculation is intended to reflect a claimant's ACTUAL EARNING CAPACITY at the moment they are injured or made sick; it is not intended to simply measure their actual earnings at that time. Obviously, these two concepts may yield quite different monetary values. Therefore, obtaining the most favorable valuation method for a claimant's pre-injury EARNING CAPACITY is essential to winning all of the benefits to which that claimant is entitled.
The various computation methods referred-to above can found within Section 14 of the Workers' Compensation Law, but the courts have also been somewhat inconsistent in their application of the statutory provisions. Thus, you should likely consult with an attorney to ensure that you have been given the highest "Average Weekly Wage" computation possible, since this will likely determine your available benefits for the rest of your life.
As well, please be aware that one favorite tactic of insurance company lawyers is to offer a claimant with no legal counsel a lower AWW computation than is likely warranted according to the law. For instance, an insurance company lawyer will often offer something which seems "reasonable" to a claimant unaware of the greater possibilities, and because this is agreed to by the claimant (who has waived his/her right to counsel), the judge presiding over the claim will likely have no reason to investigate whether a higher award amount should be paid.
Example:
Benny just turned 22-years old prior to getting injured at work a few weeks ago. He held a job working for a popular local restaurant for about the last six months previous to his injury. Prior to and during his work at the restaurant he also mowed lawns and took occasional part-time odd jobs to supplement his income. At the restaurant, Benny usually bussed tables once per week and also worked as a waiter for three to four days as well, depending on how busy the restaurant was and which other employees were working. Bussing shifts generally lasted eight hours, while shifts as a waiter generally lasted only four or five hours, again depending on how busy the restaurant was. Sometimes Benny got worse shifts than other employees, or otherwise had to bus tables more often, but only because he was the employee most recently hired. He expected this situation would eventually change when he was no longer the most junior employee.
The restaurant paid Benny the same wages regardless of the work he performed, although working as a waiter made it possible for Benny to earn tips in addition to his hourly wage. The restaurant paid Benny $6.00 per hour, and Benny worked an average of 32 hours each week. Thus, the restaurant paid Benny an average paycheck equal to $192.00 per week. Benny also hoped he might be get a raise soon based on an outstanding evaluation he just received from his manager, as well as based on the current wages the restaurant pays to other similarly-situated employees.
After getting seriously injured by a fall caused by slipping on a greasy spot on the restaurant's kitchen floor, the lawyer for the restaurant's insurance company offered Benny a "reasonable" deal: The restaurant wouldn't dispute Benny's claim for Workers' Compensation benefits, including medical care and lost wages, if Benny would simply agree to all of the following "well known" facts:
Benny was hurt at work;
Benny's injury was a back injury;
The Restaurant is liable for Benny's Back injury
(including lost wages and medical treatments);
Benny had a pre-injury Average Weekly Wage of $192.00.
Because Benny did not have an attorney, he agreed to the above list of "facts." He even thought his employer's insurance company was being very kind in just accepting liability without a fight. Especially because the insurance company agreed to pay for his necessary medical care immediately if he just acknowledged the "same facts as everyone knows them to be," in the insurance company lawyer's words, Benny thought he was getting a reasonable deal.
When it came time for a hearing at the Workers' Compensation Board, the insurance company's lawyer told the presiding judge what stipulations the parties had agreed to, and he did so without making any misrepresentations of the deal he made with Benny. After the insurance company's lawyer spoke, the judge asked Benny if he agreed to all of the stipulations of his own free will and understood that he had a right to seek legal counsel. Benny said he did to both questions. The judge then made the above-agreed items the "legal facts" controlling Benny's claim. Benny thought he got a good deal and was never the wiser.
However, because Benny agreed to the "reasonable" deal proposed by the insurance company lawyer, Benny likely missed out on several available increases to his Average Weekly Wage which he could have secured with the help of an experienced attorney. In fact, within the facts presented above, increases from the $192.00 are potentially available under several different statutory and case-law provisions.
For instance, because Benny was under 25 years of age, he could have made a winning argument based only on his current age. His tips also should have been included in his earnings capacity. His AWW possibly could have been adjusted upward to reflect the fact that he wasn't employed full-time, although he certainly had the capacity of full-time earnings previous to his injury. Benny also may have gained additional benefits by making a "concurrent employment" argument based on his work mowing lawns and taking odd jobs (certainly, this additional earnings capacity was also harmed by Benny's severe back injury). He likely also could have forced his employer to establish his base-AWW (before tips and other considerations) at the much higher rate of the similarly situated employees within the same restaurant. In fact, there were so many possible ways to obtain increases in Benny's AWW that the "reasonable" deal he entered into may have cost him $100 per week in tax-free money, or even potentially much more, perhaps for the rest of his life!
Even at $100 per week, not getting his own attorney and not protecting his rights under the current laws may have cost Benny approximately $291,200.00 over the course of his life expectancy. Maybe Benny lost even more! The insurance company lawyer played Benny for a simpleton, and Benny let that happen. Why? Because he was afraid of what he might find out if he had a free consultation or agreed to let an experienced attorney represent his claim?
Remember, the only sure way to avoid the common traps laid by experienced insurance company lawyers is to retain representation from an experienced claimant's attorney. This firm provides such representation to protect claimants' rights. Contact Us now if you desire professional representation by an experienced Workers' Compensation Attorney. Don’t go it alone against the insurance company’s lawyers.
