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  1. #1
    Join Date
    Jun 2020

    Default Exempt vs Non-Exempt Wage Loss

    I had an initial claim in late 2018. At this time, I was an exempt employee, with a base salary, and commission. My compensation changed in Jan of 2019, to 100% commission, while remaining an exempt employee (outside sales). My compensation for 2020 had remained the same as 2019.

    During my initial claim in 2018, I visited multiple doctors and spent time in the ER. I missed multiple days of work, while also being bedridden on off days. WC reimbursed all medical expenses, although it took months for me receive these checks. However, they did not reimburse for any missed time.

    The issue came back in spring of 2020. Since spring, I have already missed a full week of work, along with multiple doctors visits during work hours. Due to normal office hours and added COVID-19 restrictions, I had no other option than to miss a few hours of work on multiple days.

    In addition, I am scheduled for surgery next week. Upon reviewing this with the WC insurer and my HR department, they are covering all medical expenses under the original claim. However, they are only willing to pay lost wages for full days missed.

    On the PA WC site, it states that weekends should be included in the 7/14 day loss wage minimum requirements.

    My question is how I should be compensated for the lost wages, as my compensation structure changed throughout my claim. Additionally, should partial days be calculated into reimbursement? On multiple occasions, due to treatment, I was not able to return to work after the office visits.

    I have been very prompt about notifying my HR department of each time I've needed to take off. When I offered to go back and collect all records from all doctors involved, HR said they would take care of it. I plan to also do this myself. Regardless, I've already missed 8-10 full days of work, spent a weekend in the hospital, along with additional weekends bedridden on pain meds, and missed at least 5-7 half days. None of this includes the upcoming surgery that the doctor said recovery time could take 2 days to 2 weeks. He will not know, until he opens me up to see the entirety of the damage.

    Being that they haven't given any problems with medical reimbursement (other than slow pay) and only a few weeks missed, I haven't considered getting a lawyer. I feel the claims wouldn't justify the fees.

    Can anyone answer the lost wages/change in compensation structure/partial days questions? Any advice is greatly appreciated!

  2. #2
    Join Date
    Dec 2007
    Tunkhannock, PA

    Default Re: Exempt vs Non-Exempt Wage Loss

    If this claim is being paid under the 2018 claim than the average weekly wage for that date of injury would control. The average weekly wage never changes for a specific date of injury regardless of how your pay structure may have changed after the date of injury.

    As to partial days, assuming the missed time is as a result of your work injury, you would be entitled to 2/3 of the difference between your time of injury average weekly wage and your actual gross earnings. By way of example, if your time of injury average weekly wage was $600.00, and your actual gross earnings are $300.00, you would be entitled to $200.00 in partial disability benefits.

    If however your wages have gone up since the 2018 injury so that you are earning substantially more than you were in 2018, you would only be entitled to partial disability benefits if your actual gross earnings fall below your average weekly wage from 2018. So by way of an additional example, if your 2018 average weekly wage is $600.00 and you have enjoyed an increase in your pay to the point where you are earning $900.00 per week in 2020, you would not be entitled to the partial until your gross wages dip below $600.00. Therefore if you are now earning $700.00 per week due to the injury, you may be suffering a loss of earnings but it is not compensable until it falls below the $600.00 figure.
    Timothy D. Belt, Esquire
    Helping injured workers in Northeast Pennsylvania.

    DISCLAIMER: This post is intended as general information applicable only to the state of Pennsylvania. The information given is based strictly upon the facts provided. This post is not intended to create an attorney client relationship, or to provide any specific guarantee of confidentiality.

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