The Appellate Division issued a decision last week in a case where a post-2007 claimant had average weekly wages of $3.56 per week in the primary employment (the employment where she sustained the injury). The claimant had another job - a part time position at a retail clothing store, where she earned an average weekly wage of $77.13.

Added together, the Board found a wage of $80.69 per week. The Law Judge issued awards at a temporary total rate of $80.69 per week. The employer appealed - arguing that the award should have been based on the primary wage only - $3.56 per week - because reimbursement for compensation paid for additional amount attributable to the concurrent employment are no longer reimbursable from the Special Disability Fund (as per Section 14(6) of the WCL).

In this case the Appellate Panel ruled in favor of the claimant, finding that there was concurrent employment pursuant to Workers' Compensation Law § 14 (6) and that claimant's benefits were properly calculated based upon both employments.  Despite the weekly wage in the primary employment being nly $3.56 per week, the claimant got the benefit of a much higher rate based on both employments.

Case: Hazel Hope v. Warren County Board of Elections, 512524 (App. Div. Decided Nov. 23, 2011). 

Have a question about calculating wages or rates in a case where there is concurrent employment? Contact Greg Lois.

New York's maximum compensation rate - for temporary total disability and permanent total disability - just went up effective July 1st to $772.96. The new, higher rate will be in effect until June 30, 2012.

New Jersey's maximum temporary disability rate dropped for 2011 to $792 per week. That means that any worker making more than $1,131 per week (gross) is capped at this maximum temporary disability wage compensation.
This is a drop of two dollars ($2) from last year's maximum rate ($794).
Despite this drop, New Jersey's Compensation Rating and Inspection Bureau (NJ CRIB) announced a 1% rate hike. CRIB blames the 1% increase in rate on rising medical costs as a component of workers' compensation premiums.

Erie County (NY) executive Chris Collins was frustrated by an annual outlay of about $11 million for workers comp. So the county implemented a policy requiring workers collecting indemnity (about 300 in all) to pick up the checks in person from the supervisor. Collins hoped that the face-to-face contact would lead to quicker return to work for employees capable of performing light duty.

The WCB did not like this at all. In a decision issued last month, the WCB said the new policy "places an additional burden upon an injured worker at a time when the claimant is not medically able to return to the workplace." They called the policy ‘illegal.’

The Collins administration fired back, saying that the board lacks the authority to halt Erie County's new policy and that it will continue, at least for workers with temporary injuries.
Erie spokesman Grant Loomis blasted the comp board: "We were not surprised that a board full of Albany bureaucrats would raise objections to getting municipal workers back to work as soon as possible."

Loomis said Collins wants to revise the program to call in only the recently injured who might have substantially recovered and can perform light tasks, currently about two dozen people. Collins wants workers to receive their checks directly from their supervisors, who then would ask whether they could return to work in some capacity.

Oh, and where are the employees to pick up their checks? The Sheriff's offices. Maybe that will dissuade any potential fraudsters!

We always recommend that our clients try to accommodate injured employees with ‘light duty’ work restrictions, because we feel that having the employee come to the workplace every day, even if just to sharpen pencils, encourages them to come back to work. In this case, isn’t County Exec Collins trying to do just the same thing?

The fight is in the courts, and we will keep you updated. (More info: http://www.buffalonews.com/city/article85848.ece)

Every year the State of New Jersey Department of Labor issues a new ‘temporary disability rate.’ The rate for 2010 will be $794 per week. The rate for 2009 was $773 per week. To put that another way: according to the State of New Jersey, the average worker employed in New Jersey saw real wage growth averaging 3%.
Every year this rate increases. I have written on this topic every year for the last five years - how does this state TDB rate rise every year? The answer is: because the TDB rate is not really tied to any objective economic indicator. For example, in 2008 the Federal Government (U.S. Bureau of Labor Statistics,)the median weekly earnings of all full-time workers in New Jersey was $948.00 per week. If correct, that would give rise to a New Jersey State TDB rate of only $655 per week for 2008. In New Jersey, the maximum rate of temporary disability for 2008 was $742.00 per week.
As I have written before, the way the Feds and the State calculate ‘average weekly wage’ is different with the net effect that the NJ State Temporary Total disability rates are artificially high.
How much higher? In 2008 New Jersey calculation method yielded a weekly wage estimate that was 9% greater than the Federal estimate of wages.
Presuming that the New Jersey figures are correct for rate of growth, TDB rates for 2009 are too high by approximately $111.00 per week. This is calculated by using the Federal figures for reported wages for 2008 and using New Jersey’s growth factor.
I believe that even New Jersey’s growth factor (3%) is too high: the state has historic levels of unemployment and downward wage pressure is reported in every industry.
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