An area of contention that frequently arises between an injured worker and the Department of Labor and industries, or a self-insured employer, has to do with how their time loss benefits are calculated. A statute declares that time loss is to be based upon the worker’s wages or earnings at the time of their industrial injury. Another statute, in defining “wages” declares that the calculation of wages is to include monthly wages of the worker that he/she may have received from all employment at the time of the injury. Therefore, if the injured worker was working more than one job at the time of their injury, their earnings or wages from all their jobs are to be considered together in order to calculate their wages.
Wages are also supposed to include a reasonable value for board, housing, fuel and “other considerations of like nature” received from the employer. This term “other consideration of like nature” has, by case law, been deemed to include the value of health insurance benefits. Under normal circumstances the calculation of the wages would include the hourly wage, multiplied by the number of hours per day, and then multiplied by a specific number that represents a monthly value for the number of days they worked per week. For instance;
If a worker is only working one day a week that equates to five days per month.
If a worker is working five days a week that equates to 22 days per month.
It can also be a bit challenging when an individual’s wages at the time they got hurt were not set by the hour but instead were paid by “the piece”. For instance, if the worker is picking fruit, they are often paid by the flat, or by the bin. The overall methodology still remains the same. You merely calculate the number of bins they typically picked in a day, multiplied by the dollar value per bin, and then multiply that by the multiplier representing the number of days per week.
The only exceptions to this overall format have to do with a worker whose “employment” is exclusively seasonal in nature, or when the worker’s current employment or their relationship to employment is essentially part-time or intermittent. Under those limited circumstances the Department and the employer are entitled to calculate the “wages” by averaging a 12-month timeframe.
The Department of Labor and Industries, and self-insured employers, tend to overuse this limited averaging method. They often look at the worker’s current job, not his work pattern or “employment”. In Case law, including cases that we’ve argued all the way to the Washington State Supreme Court, it has been determined that an individual who may be working at a seasonal job, but who works at multiple seasonal jobs such that their “employment” stretched beyond one or two seasons, was not “exclusively seasonal” and therefore the averaging method was inappropriate and wages at the time of injury were deemed the appropriate method for calculating their time loss rate.
Getting the time loss rate right is important. If an injured worker does not protest the order setting the departments calculation within a 60-day timeframe they can be forever bound to that rate throughout the claim history. Even if they later show that it was clearly in error.
Therefore, whenever anyone receives an order setting their wages or calculating their time loss rate, they are encouraged to seek counsel’s advice and comment so that any corrections that are necessary can be made in a timely manner.
