Average Weekly Wage – What is it and how is it calculated?

In NY, an injured worker is entitled to weekly payments equalling two-thirds (2/3) of their salary while they are out of work. The figure used for their pre-injury salary is known as their “average weekly wage” (“AWW”). How does the Workers’ Compensation Board determine their AWW? Well, the answer is a bit complicated.

In determining AWW, the Workers’ Compensation Board takes into consideration what the injured employee earned on average for the 52 weeks preceding the date of accident. There are numerous ways of calculating that average, but the most common way is by dividing the total amount by 52 to get the AWW. Generally speaking, the insurance carrier will reach out to the injured employee’s employer and obtain a payroll documenting every paycheck that the injured employee received for the 52 weeks preceding the date of accident.

What if someone had more than one job at the time of the accident? Well it is important to note that if an injured employee had multiple jobs at the time of the accident, all wages from all jobs should be included when calculating the AWW. This is known as “concurrent employment.” However, the obligation to provide proof of concurrent employment is on the claimant/injured employee. There are several ways to prove concurrent employment, however, it generally requires a hearing before a Judge.

Also, problems sometimes come up in determining the correct AWW in a case where the injured employee hasn’t filed proper tax returns and/or works off the books. As always, if you ever have any questions or would like our help representing you, consultations are always free and we work off of a contingency fee. We don’t get paid unless you get paid!

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Election Day: Your Chance to Be Heard

In my new office’s  waiting room is a framed poster. It says "The Labor Movement…The Folks That Brought You …Child Labor Laws….Health Benefits…Workers’ Comp….Equal Pay for Equal Work….The Weekend….(etc.). The poster also contains a quote: "Power concedes nothing without a demand. It never did and it never will." (Frederick Douglass.) I love that poster.

What’s my point? Well, this poster represents my views about the importance of the labor movement throughout history. It is Organized Labor that has brought about so many needed reforms. Accordingly, I normally VOTE for those candidates that show support for labor.

This entire article contains my opinions, and yours may be different. I am tired, however, of candidates who campaign SOLELY on a platform that that candidate "will lower your taxes." Is lowering taxes the only important  issue for politicians to run on? Why is this always the main thrust of political campaigns? Do candidates think taking a stand on ANY OTHER issue other than taxes is too much for the electorate to comprehend? Can someone explain this phenomenon to me?

Casting a vote in the first place is the key. If you are unhappy with the way your  country, state, county or town operates, did you try to change it in some way? Did you vote? Did you engage in meaningful discussion with your neighbors? Or did you just sit back and complain without doing anything to effect change?

Just a reminder that you should exercise your right to vote. If you don’t, someone else who may not agree with your views, will.

See you at the voting booth.

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Workers’ Comp and Pro Sports

I’m a sports nut- like many people I know. I follow all four major pro sports and have read literally hundreds of sports books and publications in my lifetime. I’ve been to and watched countless games. What many people don’t know, interestingly, is that almost all pro sports injuries in the U.S. are covered by Workers’ Compensation.

In February this article appeared in the L.A. Times:

Last fall, the National Football League scored a huge victory in California, helping push through a new law barring most professional athletes from filing workers’ compensation claims in (that particular)  state.

But that win has come at a cost.

Publicity from a high-profile battle over the legislation prompted players from around the country to file more than 1,000 injury claims just prior to a September deadline – a huge influx that could cost the nation’s top professional sports leagues hundreds of millions of dollars to resolve.

In the first two weeks of September, current and retired players filed 569 claims against NFL franchises, 283 claims against Major League Baseball clubs, 113 against National Hockey League teams and 79 against NBA squads, a Los Angeles Times analysis of state workers’ compensation data found.

Nearly 70% of the filings include allegations of head or brain injuries caused by repetitive trauma. Most of these athletes appeared to have never played for a California team; they filed claims based on repetitive injuries they say were sustained in part during road games played in the state. It is those claims that are now barred under the new California law.

Among the athletes rushing to beat the deadline were sports legends such as Miami Dolphins quarterback Dan Marino, Baltimore Orioles pitcher Jim Palmer and Houston Rockets center Hakeem Olajuwon, as well as many lesser-known retirees, some suffering serious physical impairment. A number of active players, including San Francisco 49ers standouts Michael Crabtree and Frank Gore, also filed claims.

My understanding of what happened in California is that every NFL injured player- whether they played for a California-based  team or not- used to file for comp in California because that state had the most favorable comp law. (Every state has its own separate Workers’ Comp law.) In California, even visiting players could file, and California allowed claims for “cumulative” injuries—successive blows led to concussions that added up to brain damage. However, after the law changed, players weren’t allowed to do this unless they played for a California team (like the Lakers or Sharks, for instance.)

So what’s my point here? My point is, that professional athletes who are suffering these head injuries, with attendant brain damage, or career-ending injuries, actually do have Workers’ Compensation as one way of recovering lost wages and for obtaining medical treatment for their injuries. But professional athletes are subject to what the law in their particular state says about cumulative injuries.

New York allows claims for cumulative trauma. I have both a love of sports and  a career-long enthusiasm for my law practice of Workers’ Comp—so maybe I can combine the two! I would be happy to help any injured pro player.

So, to any and all injured New York Jets, Giants, Mets, Rangers, Knicks, Nets, Yankees and Islanders : feel free give my law firm a call!

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What the Workers Comp Insurance Company Is REALLY Concerned About

Workers’ Comp in New York State is constantly changing. Recently, I was asked by union officials to give a second legal opinion about a situation where a union member (not my client) had been accused of Workers’ Comp (WC) fraud. Lately, insurance companies are raising such fraud charges against workers more and more often, regarding the issue known as “PAST MEDICAL HISTORY”, and that is what happened in the case I was asked to review.

When individuals  are injured at work in New York State, those workers often assume that someone is looking out for their best interests and that somehow the system will automatically do the following: a) pay all of their work injury medical bills without a problem; b) pay them without a problem; and c) inform them of their rights.

However, this is what I find ACTUALLY happens after a work-related accident: the insurance company is concerned only with the well-being of the insurance company, not the injured worker. It  looks for ways to NOT pay the worker.

Although it is perfectly reasonable for WC insurance companies to try to weed out fraud, it appears to me that these companies spend almost all of their time doing this type of anti-fraud investigation at the expense of  doing other things to help workers.

Workers’ Comp Insurance companies ALWAYS  —ALWAYS—-DO THE FOLLOWING AS A MAIN FOCUS OF “DEFENDING THE CLAIM” soon after anyone is injured on the job:

1. Review the claimant’s written statements and claim forms after the work injury word by word to determine if the worker ADMITTED, OR DENIED, EVER HAVING  ANY PRIOR INJURIES—-EVER!

2. Review the medical reports from claimant’s own treating doctors plus the questionnaire given by the insurance company doctor to determine if the worker ADMITTED OR DENIED EVER HAVING ANY PRIOR INJURIES—-EVER .

3. If the insurance company determines that the injured worker omitted any mention of ANY prior injury that he or she actually had, (and believe me, they check this, without fail) FRAUD is often immediately charged against that worker. Yes- almost every omission of a prior injury is considered fraudulent by insurance companies even though the law says that this is not the standard by which to judge. (The law actually only says that forgetting about revealing a prior injury is a fraud if the omission is “knowing” and “material.”)

4.  If found guilty, a worker can be charged with a felony. However, the more common penalty is permanent loss of Workers’ Comp money (but not medical)  benefits in that particular case.

The problem here is that injured workers can be careless without being fraudulent. I have confronted my own clients when thay omit mentioning prior injuries to the insurance company or even to their own doctor. I have heard the following excuses, none of which are valid, among others:

1. I didn’t understand that the form I filled out was asking about previous injuries I had that were not the same as my current injury.

2. I thought they knew about the previous injuries because the previous injuries were for the same employer so I didn’t mention them.

3. I didn’t think mentioning my prior injuries was important.

ALL of my clients receive a complete explanation of this issue verbally and in writing when they retain us AND sign a paper that says that they understand it. I do not allow my clients to go forward without an education that basically says: NEVER EVER OMIT MENTIONING ANY PRIOR INJURIES YOU EVER HAD TO ANYONE IN THE WORKERS’ COMP SYSTEM!!!

If claimants would simply follow this rule, and be forthright about all prior injuries , discovering fraud would become less of a main focus of the WC insurance companies. Often, I find, clients APPEAR to be fraudulent when their omissions are simply the result of carelessness. But the insurance companies always assume the worst about injured workers.

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Labor Day: A Day to Commemorate, Not Just Celebrate

Labor Day just passed, and for most of us it’s back to our day-to-day work lives. Some, however, have given their lives while performing their jobs. Rather than just celebration, Labor Day should bring us reflection, as well, and commemoration, for ALL workers, including those who have died in the course of their labor.

Currently, the top news stories are filled with stories of bravery among those who work and risk on-the-job illnesses and injuries.  

The doctors who go abroad and face the Ebola virus are doing wonderful but dangerous work and should be applauded.

The two journalists who died recently at the hands of ISIS were of course the two most recent, horrific examples of people who died doing their jobs. In just one week, we will remember those who perished in 9/11. So terrorism is a real, continuing threat to the working world, unfortunately.

However, the "every day" type of accidents at work that take people’s lives are just as horrendous. It is my opinion that not enough is done in this country to ensure worker safety and to prevent accidents in the workplace.

Our military, police, fire and emergency workers risk their lives to protect us every day. They too must be honored.

How about the poor restaurant manager who lost his life at the Legal Sea Foods restaurant in Suffolk County this past February from carbon monoxide from a faulty water heater? Should he not be remembered too? Or all those construction workers who die on the job and get only a few paragraphs in the newspaper?

My point is, Labor Day is fun and all, but it should also cause us to take pause and celebrate, and remember, and commemorate, labor.

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Workers’ Comp: It’s Not Just for People Out of Work- Part 2

In a previous essay I wrote about Workers’ Compensation (WC)  permanent injury awards:

Permanent injuries to joints of the body, vision, and hearing, qualify for “schedule loss of use” awards regardless of whether a person is working or not“,  I explained.

As a follow up to that, I can tell you that it has become very  difficult, in the world of Workers’ Comp in New York,  to receive not a permanent injury award, but to receive weekly benefits while out of work!

This sounds counterintuitive: Isn’t Workers’ Compensation primarily designed to pay people while they are out of work? Well, in the current climate, it’s not so easy to obtain a proper weekly payment while out on comp (called a “lost time award”.)

First, understand that eventually it becomes a choice, because ultimately you do not receive both types of awards. The WC law says you can’t get a permanent injury award and ADD it to your lost time award..at the end of the case you have to choose one or the other!!!

For an experienced Workers’ Comp lawyer in New York, then, this becomes an analysis of which one is better for the client.

Here’s a comparison of the two types of awards:

(Note: Permanent injury awards are called “SLU’s”)

Lost time: Paid only if injured worker (IW) is under medical treatment.

SLU: Paid only if the IW is finished with treatment.

Lost time: Paid most often at a lower than maximum rate.

SLU: Paid at the maximum rate.

Lost time: Injured worker can be required to look for work (job search) to qualify.

SLU: No requirement to look for work.

Lost time: Paid in bi-weekly installments.

SLU: Paid in one lump sum.

SLU: Paid one year from date of accident

Lost time: Paid after one week of being out of work.

As you can see, a SLU award has huge advantages over lost time awards. The problem is, when someone has suddenly stopped working and is in need of income to survive, it is unimportant to that person that one year later, they may receive a lump sum that will cover all of their lost wages. That person needs income NOW.

That is why we as WC attorneys still try as hard as we can to get our clients “lost time bi-weekly checks” while they are out. Later on, we worry about whether they qualify for an SLU.

More complicated than you thought? That’s why an experienced WC attorney is essential in almost every WC case.

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Social Security Disability: Common Illnesses and Injuries

I often get the question, what types of conditions would qualify me for Social Security Disability?

The answer is: there are hundreds of conditions, from common to unusual. Disabilities can be purely physical or psychological. They can result from accidents (including work-related accidents), or they can arise as an unexpected diagnosis or steadily worsening condition. Depending on their severity, disabilities can include:

  • Back and neck injuries
  • Knee and hip injuries
  • Paralysis
  • Traumatic brain injuries
  • Strokes, seizures and other neurological disorders
  • Bipolar disorder
  • Depression
  • Heart and Lung Conditions
  • Cancer

Certain diagnoses are so terrible that they automatically qualify for benefits. You just have to prove you have the condition. These are called “compassionate allowance” cases.

Social Security Regulations cover EVERY  different system of the body and almost every disease you can think of . Have leukemia? There’s a section covering that. Cardiac arrythmia? There’s a section covering that. Every condition has a “Listing” that basically says, if you meet these requirements, you are considered “disabled.” And all mental impairments are considered right along with the physical.

An example of one of the most commonly used “Listings” is the section that applies to spinal disorders. Generally, in order to “Meet or Equal” this Listing (so that you immediately qualify medically for benefits) you would have to show through medical reports, etc:

“nerve root compression;limitation of motion of the spine; motor loss, atrophy, sensory or reflex loss, positive straight leg raising………”

The trick part of Social Security Disability is that YOU CAN WIN EVEN IF YOU DON’T MEET THESE REQUIREMENTS.

These Listings for each condition just mean that BASED ON YOUR MEDICAL CONDITION ALONE, YOU WIN without taking into account other factors such as age, education, work experience.

Whether someone meets or equals a “Listing” is just  “Step Three” of a Five Step Process that Social Security uses to determine if you are disabled.

Bottom line: almost any condition can render someone disabled under Social Security’s rules. But how severe that condition is, and how it affects the particular individual, is the key.

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New York Workers’ Comp: What’s the Weekly Dollar Max?

Since July 1, 2010, the maximum weekly benefit rate for NY workers’ compensation  (WC) claimants has been floating from year to year. It is pegged to the date of accident—meaning, even if there are increases in later years, the maximum rate in your case stays the same: the max in effect on your date of accident. The max rate changes every July 1st now—-hence this article. When I broke into the WC business in mid-1983, the maximum weekly rate (amount) of Workers’ Compensation that a worker injured after July 1, 1983 could receive was $255 per week, but only if you were totally disabled. Partially disabled workers could only receive $125 per week, at that time, max!

Yesterday, the Workers’ Compensation Board announced that from July 1, 2014 through June 30, 2015, the maximum weekly benefit rate will be increased to $808.65 per week…. a far cry from when I started practicing as a Workers’ Comp attorney.

Maximum rates have been a political football. For a long time they were frozen.

For nearly 15 years, (1992-2007) the maximum benefit remained stagnant at the weekly rates of $340 for total disability and $280 for partial. As of January 1, 2007, New York’s statutory benefit maximum for total disability ($400) still ranked 49th out of 51 jurisdictions – the 50 states and the District of Columbia. Only Arizona, with a statutory benefit maximum of $374.01, and Mississippi, with a statutory benefit maximum of $387.68, ranked lower.

The Comp Board will say that the 2007 Reform (law change) “dramatically improved indemnity benefits for injured workers.” by increasing the maximum rates.  It provided for incremental increases through 2009 and then indexed the maximum rate annually. However, the Workers’ Comp Law in 2007 ’giveth” and then “taketh away.” In exchange for increasing the maximum rates, in 2007 the State Legislature instituted “caps” that made lifetime payments of WC pretty much a thing of the past!

When I broke in in 1983, once an injured worker was found permanently disabled, it was assumed that person would get benefits for the rest of their life—-unless they took a lump sum settlement, or returned to work. Now, the caps say that permanently disabled workers get benefits for a certain number of years, and only if they continuously look for work, but then after the term ends (called the “cap”) the payments stop (with few exceptions.)

So, the max weekly rates went up, but the length of time payments would be made was severely slashed. There was a definite tradeoff in 2007 between labor and big business. This was a landmark political compromise- and one that led to the July 1st annual max rate changes we now have. And don’t forget- not everyone qualifies for the max rate. Most injured workers get less than the max—as the law says if you are totally disabled  you get the max, or 2/3 of your weekly wages, at most, whichever is less!

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Workers’ Comp in New York, Social Security, and Medical Marijuana

Section 10 of the Workers’ Compensation law in New York State says, among other things,  that there shall be no liability for compensation “when the injury has been solely occasioned by intoxication from alcohol or a controlled substance………”

It has long been the law that if someone gets injured on the job SOLELY because they are drunk or stoned, the employer is NOT responsible.

But what about the recent legislation regarding medical marijuana? Does this affect the Workers’ Comp system in New York?

In my opinion, New York State and Governor Cuomo’s recent passage of a limited medical marijuana bill should NOT affect Workers’ Comp. Why? Because the bill says:

To be prescribed medical marijuana, a patient must receive a certification from a licensed practitioner who must register with the Department of Health and be qualified to treat the serious condition for which the patient is seeking treatment. The serious conditions for which medical marijuana can be prescribed are cancer, HIV/AIDS, ALS (Lou Gehrig’s Disease), Parkinson’s Disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication on intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s Disease, or as added by the commissioner by DOH.

Looking at this list, there are few if any such conditions that could possibly be work-related. The only ones that are possible are the nerve damage situations but those seem to cover only the most severe. So this law likely won’t affect Workers’ Comp.

But what about Social Security Disability and Medical Marijuana? I googled these together and found some interesting articles. Remember, marijuana is still illegal on the federal level and Social Security is a federal program. If someone is alleging a mental disability and is taking marijuana on a daily basis it might be hard for the Judge to decide their case. Anyone who is found to be disabled because of drug use can be denied benefits on that basis.

So the use of medical marijuana will make disability claims more complicated.

Bottom line—this is still new territory for the disability field, so stay tuned………

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Interesting Data Regarding Social Security Disability Cases and Judges

New York ODAR Offices

Source: disabilityjudges.com

The Office of Disability Adjudication and Review (ODAR) conducts Social Security Disability (SSD) hearings and Supplemental Security Income (SSI) hearings in 10 different offices in New York. Currently, in New York, the average wait time for a SSI or SSD hearing is 12.2 months. The average case processing time in New York is 416 days.The New York average for winning a disibility hearing is 50%. Click on one of the cities below to see detailed information about the hearing office and the administrative law judges (ALJ) that work there. This information for ODAR offices located in New York was last updated on 5/5/2014.

All new york12.2 months416 days1.82.050%31%National Average:12.1 months394 days2.019%44%38%

Office Judges Avg. Hearing
Wait Time
Processing Time
Avg. Dispositions
Per Day Per ALJ
Albany 9 12.0 months 420 days 2.0 15% 58% 27%
Bronx 7 10.0 months 416 days 1.9 19% 46% 35%
Brooklyn 12 16.0 months 505 days 1.6 23% 53% 24%
Buffalo 14 13.0 months 462 days 1.2 22% 44% 33%
Jericho 8 11.0 months 328 days 2.0 12% 63% 25%
New York 11 12.0 months 363 days 2.2 21% 45% 34%
Queens 9 11.0 months 418 days 1.2 20% 56% 24%
Rochester 4 13.0 months 484 days 2.0 21% 49% 30%
Syracuse 10 13.0 months 390 days 1.9 25% 42% 33%
White Plains 8 11.0 months 383 days 1.7 20% 40% 40%

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