If an injured worker in Vermont is unable to work or must reduce his or her hours because of a work injury, the employer or its insurance carrier must pay temporary disability benefits while the worker recovers. Vermont law provides for two types of temporary disability benefits. The worker gets Temporary Total Disability (TTD) benefits when the injury renders him or her completely unable to work. He or she gets Temporary Partial Disability (TPD) when he or she can return to work while recovering but is unable to earn as much as before.
Why You May Need a Lawyer to Security All of Your Temporary Total or Temporary Partial Disability Benefits
Whenever a worker misses more than three days of work because of an injury, the carrier/employer must determine what the worker’s average weekly earnings were prior to the injury and report them to the Vermont Department of Labor. This is called the worker’s Average Weekly Wage. From this the carrier/employer must then calculate the worker’s Compensation Rate. Jarvis & Modun commonly sees insurance adjusters and employers make mistakes when calculating both Average Weekly Wages and Compensation Rates. Often a worker does not even know a mistake has been made before he or she comes to us. Some common errors include:
- Mistakes in calculating the Average Weekly Wage
- Failure to include concurrent employment when calculating the Average Weekly Wage
- Mistakes in calculating the Compensation Rate
- Failure to pay dependent benefits
- Failure to apply a Cost of Living Adjustment
If the carrier/employer pays less in Temporary Disability benefits because of a mistake made in calculating the Average Weekly Wage or Compensation Rate, the worker’s losses are compounded down the road. Permanent Disability benefits are also calculated using these figures. It’s vital to get them right. Jarvis & Modun checks to make sure that these calculation are done right every time.
Mistakes in Calculating Average Weekly Wage
Many rules apply to the calculation of Average Weekly Wage. Unless the insurance carrier or employer pays careful attention to these rules, it is easy to make a mistake. Sometimes the carrier/employer averages the wrong weeks. Sometimes it includes weeks of low wages that should be excluded. Other times it excludes weeks of high wages that should be include. Sometimes it fails to include bonuses, room and board, or other “extras” that must be included in the calculation. At Jarvis & Modun we know the rules and double-check the carrier/employer’s figures to make sure that these calculations are done right. Doing it right in the beginning pays off in the end.
Failure to Include Concurrent Employment
If you work for two or more employers during the 26 weeks prior to a work injury, chances are wages from both employers must be included in your Average Weekly Wage. Only the carrier/employer where you get hurt pays your Workers’ Compensation benefits. But an injury while working for one employer usually affects your earning capacity for all employment, not just at the job where you got hurt. Even if you only lose time from work with one employer, it is important to include all the wages from concurrent employment in your Average Weekly Wage. If you suffer a permanent injury, your award of Permanent Disability Benefits is based on your full Average Weekly Wage, not just a portion of it. If your carrier/employer fails to include wages from concurrent employment, it will lower this award and you will get less money at the end of your case. If you’re wondering whether concurrent employment should be included in your Average Weekly Wage, call Jarvis & Modun at (802) 540-1030 for a free consultation.
Mistakes in Calculating Your Compensation Rate
Not only does Jarvis & Modun see insurance adjusters and employers make mistakes in calculating Average Weekly Wages, we also see them make mistakes in calculating Compensation Rates. Typically an injured worker’s initial Compensation Rate for Temporary Total Disability is two-thirds of his or her Average Weekly Wage. However, that rule is subject to rules about minimum and maximum rates set by the Vermont Department of Labor. Rarely do we see carriers/employers make mistakes in applying the maximum rate of compensation. However, we do see them make mistakes in applying the correct minimum rate. Sometimes they do not apply a minimum rate at all, but simply pay the worker two-thirds of his or her Average Weekly Wage, even if that amount is nowhere near what the worker can live on. Sometimes they apply the wrong minimum rate. These types of mistakes are particularly harmful to low-wage earners. The minimum rates are intended to create a floor that protects workers from being compensated at rates that do not cover their basic needs. If you think your Compensation Rate may be too low, give us a call.
Mistakes in calculating the Compensation Rate for Temporary Partial Disability are less common. This may be because the calculation is simpler. When an injured worker can return to work at a lesser capacity while recovering from an injury, he or she is entitled to two-thirds the difference between his or her earnings before and after the injury. Even though this calculation is less prone to error, any mistake made in calculating the Average Weekly Wage could negatively affect the worker’s entitlement to Temporary Partial Disability benefits as well.
Failure to Pay Dependent Benefits
Every injured worker in Vermont is entitled to a $10 weekly supplement to his or her Temporary Total Disability benefits for each dependent child under the age of 21. Sometimes the carrier/employer is unaware of dependent children and does not pay this benefit as it should. Some of Jarvis & Modun’s clients have been confused about whether their children qualify them for this dependent benefit. If you have any questions about whether you qualify for a dependent benefit, contact us.
Failure to Apply a Cost of Living Adjustment
As of July 1st of each year, most Vermont workers receiving disability benefits are entitled to a Cost of Living Adjustment (COLA). The COLA adjusts the Worker’s Compensation Rate upwards to account for inflation. Insurance adjusters and employers often forget to do this. Part of our job as your lawyer is to make sure you get paid COLAs in a timely manner.