Ongoing Wage Loss Payment Calculation
I (Re-) injured my back on 10/12/2019. The injury took me out of my regular assignment but does allow me to perform some office responsibilities. Per the direction of my employer, as long as I am cleared for modified/restricted duty, I report to work for 40hrs of work activities. In the recent weeks, I have been in extreme pain, have had severe radiculopathy of which has caused an ED visit. My regular work assignment has a great deal of overtime factored into my base wages (nearly 30%) because of the extraordinarily long hours required in my routine schedule.
The insurance company offsets my my loss of wages by averaging my salary over the last year, dividing it by pay periods and they cut me a check for 2/3 that amount; per pay period, in addition to the wages I earn by reporting for modified duty. My income on modified duty alone is 1/2-2/3 my ordinary and customary wages so the offsetting payment is crucial. It allows me to meet things like mortgage, car insurance, health expenses, etc and not…
The problem is I suffered the same injury on 3/27/2019, was on modified duty and attempted to return to regular duty on 5/1/2019. I re-injured myself within a week and returned to modified duty until 7/1/2019. Each time I left the field, Sedgewick (and by agency, my employer) called it a new injury. I don't know if this is overall good or bad but where there has been a significant impact is the compensation.
For the year preceding 3/27/2019, I was receiving my full and customary wages; therefore, the compensation check in addition to wages on modified duty allowed me to get by. Because they started a new case on 10/12/2019, the previous years' wage calculation is based on the already lower wages I received while on modified duty. This makes the differential being paid out by Sedgewick about 25% of what it was 6 months ago.
Is there a remedy to this? Is it worth appealing to Sedgewick to recalculate based "non-modified duty income"? Is that even a thing? It's certainly not in their interest but isn't it good faith the policy is meant to partially compensate customary loss of income?
I have not sought counsel at this point but seeing this may go on with a severely exacerbated injury, is it time?
Re: Ongoing Wage Loss Payment Calculation
This is a slick trick on their part, they're gambling you won't put up a fight and accept what they offer.
Because they started a new case on 10/12/2019, the previous years' wage calculation is based on the already lower wages I received while on modified duty. This makes the differential being paid out by Sedgewick about 25% of what it was 6 months ago.
Unless you've reached MMI and they settled or closed your initial claim, you would now have a second claim on top of that one which means your initial earnings, before any injury should be used to calculate your TTD benefits.
If you did reach MMI and closed the initial claim, your benefit wage should be based on what your earnings would have been if not for your injury. (usual workweek)
This is a complicated issue, if you decide to fight, don't argue or have further contact with the carrier until you retain legal counsel.
Here's is an excellent blog on this topic, I quoted the relevant paragraph that pertains to your situation.
I. Method #1 – Labor Code § 4453(c)(1) - Usual Workweek
EXAMPLE #2: Hallam v. City of Merced, 2013 Cal. Wrk. Comp. P.D. LEXIS 645
“Moreover, applicant’s temporary total disability indemnity rate should reflect what his earning capacity would have been during the period of disability but for the injury. (Argonaut Ins. Co. v. Ind. Acc. Com. (Montana) (1962) 57 Cal.2d 589 [27 Cal.Comp.Cases 130].)