I have a question that centers on my workers comp case. The question I pose is: I was employed as a heavy equipment operator holding a CDL-A, and was troubled with the unsafe condition of the equipment provided coupled with a hazardous environment in connection with performing my duties. I was forced because of those reasons to search out new employment and successfully found a new employer. I applied for the position (Tractor Trailer Driver) and went through the hiring process of submitting my application, phone interview, in person interview, and background check. After successfully completing the aforementioned received written confirmation of a contingent offer for employment from a major company.
I had applied for this new employment in August of '08, and I was seriously injured on September 21st 2008. The congratulatory letter I received dated October 9th 2008 from the new employer was with the only contingency remaining; that I pass the DOT physical abilities and drug tests. Unfortunately, because of the injuries suffered they made it impossible to take the physical abilities test, and for that reason I was unable to complete the last remaining requirement therefore losing out on the new employment opportunity and substantial increase in wages which in essence would have doubled my income.
The question I have is with regard to the calculations for workers comp indemnity considering that I was essentially hired by the new employer shouldn't the loss of those higher wages have been calculated also when determining the indemnity portion of my losses. My reading of the following would affirm there is a viable argument when reading subsection (b) "as will most nearly approximate the amount which the injured employee would be earning were it not for the injury". This goes to the heart of my question in that the new employment which had been obtained and committed to was lost due to workplace injuries which not only injured me physically but financially as well.
2011 Code of Virginia
Title 65.2 WORKERS' COMPENSATION.
Chapter 1 Definitions and General Provisions (65.2-100 thru 65.2-105)
Universal Citation: VA Code § 65.2-101 (2001 through Reg Session)
As used in this title:
"Average weekly wage" means:
1. a. The earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury, divided by 52; but if the injured employee lost more than seven consecutive calendar days during such period, although not in the same week, then the earnings for the remainder of the 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted. When the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee earned wages shall be followed, provided that results fair and just to both parties will be thereby obtained. When, by reason of a shortness of time during which the employee has been in the employment of his employer or the casual nature or terms of his employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury was being earned by a person of the same grade and character employed in the same class of employment in the same locality or community.
b. When for exceptional reasons the foregoing would be unfair either to the employer or employee, such other method of computing average weekly wages may be resorted to as will most nearly approximate the amount which the injured employee would be earning were it not for the injury.
If anyone has an understanding of this I would appreciate your sharing it with me.
BTW...I am still on an open award with a hearing coming up for issues related to my injuries.
Thanks in advance