Permanency or Permanent Impairment Award

Wednesday, July 15, 2015
9:43 AM

Many workers’ compensation systems pay a separate award for “permanent impairment.” It’s the closest thing in workers’ compensation to the “pain and suffering” damages that you may get in a “normal” auto crash or similar injury case. Permanent impairment awards are based on your functional status at the point in time when you reach “Maximum Medical Improvement,” or “MMI.” MMI is nothing more than that point in time when you are as healed as you are going to be, at least until something else happens. (Sometimes “MMI” is a little fluid–think of a knee injury where you heal as much as you are going to, so you are “at MMI,” but 10 years down the road that injury is going to require a knee replacement, and you know that even now. After the knee replacement, you will eventually have a “new MMI,” that will re-calculate your functional status in light of the new knee and the changed medical condition that it causes.)

“Permanency,” as permanent impairment is known, is determined by a doctor who is qualified to examine you and then look up your injuries in a book called the “Guides to the Evaluation of Permanent Impairment,” produced by the American Medical Association. It all gets converted into a percentage loss of function. In simple terms, if you amputate a finger in a machine, you have 100% impairment of that finger, some corresponding percentage impairment that the missing finger causes in the hand (a lost thumb may be considered 40% impairment of a hand), a corresponding loss of function of that arm, and so on up the line to “whole person impairment.” Example: An amputated thumb comes out to roughly 26% impairment of the whole person, depending on where the thumb is amputated (i.e. at the base of the thumb, or at the knuckle, etc.)

So when you reach MMI, different things happen in different workers’ comp systems. In NH, the statute that will govern your injury is here: esp. section II. You are entitled to an exam by a doctor who performs permanent impairment ratings, and that exam is paid for by the carrier. Once you have a rating, different systems use that figure differently, but most systems base some kind of compensation payment on conversion of the percentage whole person impairment into a payment of some number of weeks of your Average Weekly Wage (AWW–for more on that, go here).

Bottom line: Pay close attention to when your healing is at a plateau, and you may not get any better from your work injury. And consult with a lawyer as soon as possible if you have a work injury–workers’ compensation has too many moving parts to go it alone.

Doug G.

Concurrent Employment (i.e. working two jobs)

Wednesday, November 18, 2015
10:23 AM
The following information is specific to New Hampshire Workers’ Compensation Claims

If you are working two (or more) jobs and get hurt doing one of them, there can be ripple effects.  One significant one in workers’ comp is that you can use combined earnings from multiple jobs to “boost” the Average Weekly Wage that is used for calculating benefits.  (Go here for Average Weekly Wage in general.)
Having multiple jobs on the injury date goes to several things:

  1. AWW.  You add wages for both jobs in the 52 weeks pre-injury to get a higher AWW for determining workers’ compensation benefits;
  2. Indemnity benefits.  If you completely miss work from both jobs, you have Temporary Total Disability (TTD) based on the boosted AWW.  If you go back to work less-than-full-time, with full-time being both jobs combined, then you have normal calculation of indemnity based on reduced earnings, i.e. 60% difference btw pre-and post-injury earnings, pay-period-by-pay-period.
  3. So if you were working more than one job when you got hurt, you will need to gather up earnings details for all jobs that you worked both before and after your injury date.  Once you do that, you now have information to calculate the boosted AWW (26- or 52-week earnings in BOTH jobs, whichever gives a more favorable number).  And you now have information to calculate indemnity benefits (60% difference btw pre-and post-injury earnings, essentially broken down by pay period).

Average Weekly Wage & Residual Earning Capacity in DBA Cases: Beware Adjuster Sleight of Hand

DBA insurance companies scurry a lot.

They can’t seem to take a claim, look at it, make a reasoned statement of how they see it, and have a conversation about it. Instead they see a claim coming, so they scurry. The scurrying gets so fast it’s like watching a magician running a shell game. One of the favorite deceptions has to do with Average Weekly Wage (on the front end) or Residual Earning Capacity (sometimes called Residual Functional Capacity) on the back end.

Click here to read full article.

Average Weekly Wage

Wednesday, November 18, 2015
10:26 AM

If you get hurt at work badly enough to miss time, you may eventually run across the term “average weekly wage” or “AWW.” What is it and why does it matter? It is a kind of “index” of your earnings in the time frame that is considered relevant under the law for measuring the loss of earnings that you deserve under the applicable workers’ compensation system. Once you calculate “AWW,” your weekly wage replacement check from the workers’ compensation insurance company will be based on AWW. In most systems your weekly wage replacement (also called “indemnity”) check will be 66-2/3% of AWW. If you have a job where your earnings are the same week in and week out, you can just think of it like this: “If I get hurt at work and can’t work, the insurance company should pay me 2/3 of my normal pay.”

If you have a job where your earnings go up and down, AWW creates an average by looking backward from your date of injury at your previous paychecks. Usually you look back 6 months, or one year, average all those paychecks, and there’s AWW. Sometimes you leave out low weeks, or zero weeks, and sometimes you don’t. Calculating AWW can be its own special art form in a complicated case.

Concurrent earnings,” or what you might call “working more than job,” is just like “normal” AWW–you just calculate AWW from all of your jobs combined. (Look here for more on Concurrent Earnings.) The effect is to “boost” your AWW so that it reflects earnings from all jobs, not just the one you were working in when you got hurt. Higher AWW means higher indemnity payments. And because other things in workers’ comp are based on AWW, it may mean higher compensation for permanent impairment (look here for an explanation of permanent impairment) and perhaps other benefits too.

Bottom line: If you are hurt at work and miss work time from your injuries, be sure that you tell your lawyer about ALL jobs you worked at the time you got hurt, even if you weren’t scheduled to work your second (or third or fourth) job on the day you got hurt.

Doug’s reflections on the 100th anniversary of workers’ comp

A few years ago, the 100th anniversary of widespread adoption of workers’ compensation laws in the United States was celebrated. The International Association of Industrial Accident Boards and Commissions (IAIABC) invited reflections on workers’ compensation. I decided to weigh in and posted a few thoughts about what comp might look like in a better world. Here’s what I wrote.

Looking back on it a few years later, I still like my idea. Adversarial systems are not designed to get the best result overall. They are designed to pick winners and losers. Right now, that creates enormous risk for the injured worker of losing everything if a light duty return to work attempt does not go well. Most systems have no good “safe harbor” provision to allow injured workers to try out a job without risk of losing benefits.

I don’t know what I would design if I were asked to create the perfect workers’ compensation system. I just know I would include some kind of safe harbor to let people try working without risk of losing their benefits.