In a post
Castellanos world, locking down the average weekly wage at an early stage is as important
as ever. Claimant’s attorneys now have more of a reason to follow
up on issues such as a mere adjustment of the average weekly wage. Although
calculating the average weekly wage is common for larger Employers that
have had workers’ compensation claims filed against them in the
past, it is not as common for smaller Employers. Therefore, it is imperative
that once any claim for indemnity is made that the average weekly wage
is calculated correctly. While there are intricacies to this calculation
the basics are the following:
1) Did the claimant work substantially the whole of the thirteen (13) weeks
immediately preceding the accident?
Substantially the whole of the 13 weeks immediately preceding the week
of accident constitutes “not less than 75 percent of the total customary
hours of employment within such period considered as a whole” according
to FS 44.14(1)(a).
A common issue that occurs when Employers complete a thirteen week wage
statement is the inclusion of wages of the week of accident. That week
of wages cannot be included as it could potentially distort the calculation
as the claimant can miss days in the week of accident.
2) If the claimant did not work for substantially the whole of the thirteen
(13) weeks immediately preceding the accident then it must be determined
whether a similar employee to the claimant exists.
A similar employee is typically defined as an employee who worked in the
same crew as the employee, performed the same job function and earned
the same rate of pay as the claimant.
A similar employee does not always exist, however, if it is claimed that
a similar employee does not exist then the burden is placed on the claimant
that one does exist.
3) If no similar employee exists, calculate the average weekly wage using
the claimant’s contract of hire information.
If there is no similar employee then the Employer should use the contract
of hire information to calculate the average weekly wage. This would include
the hours that the claimant was intended the work, the rate of pay, promises
of bonuses and raises as well.
While the average weekly wage may seem like a simple calculation, it will
continue to be the focal point of much litigation as we are currently
in a world where claimant attorneys will continue to seek fees. Locking
down the average weekly wage at an early stage in litigation will remove
the need to address this issue months or years down the line.