Last time I discussed temporary total disability – which is payment for temporarily being unable to work. This is just one way to be compensated through the Ohio workers’ compensation system when you cannot work. Another type of compensation is wage loss.
Two Types of Wage Loss:
In Ohio you can receive either working wage loss or non-working wage loss.
Non-working wage loss I compare to unemployment. You must continually complete and submit a form that details all of your attempts to find employment. This form should be completed in as much detail as possible – including names of people contacted – as the BWC or employer may call to verify these contacts.
Working wage loss is for people that are working, but are not able to earn as much as they did before the injury due to ongoing restrictions. The reason for the lowered income has to be due to the injury’s restrictions and not due to some other condition – including if you lost your job during the course of the claim.
How Wage Loss Is Paid
Non-working wage loss gets paid at 66.67% of the Average Weekly Wage (an average of the weekly wage for a year before the accident). It typically is paid every two weeks, but cannot be paid unless the appropriate job search forms have been completed and submitted.
Working wage loss is a little more complicated. You get 66.67% of the difference between the Average Weekly Wage and the current pay. You must submit your paystubs in order for the working wage loss to be calculated and paid.
John was injured working on a drill press at a factory.
John’s Average Weekly Wage is $500 per week based on what he made a year before the injury.
After the accident, John is unable to stand more than 3 hours a day due to his injury. This means he cannot return to the drill press job where he was on his feet all day.
John takes a new job in assembly where he is able to sit. However, he now makes $380 a week (pre-tax).
John would be entitled to wage loss of roughly $80 a week.
.6667 * [ $500 (pre-injury Average Weekly Wage) – $380 (current wage) ] = $80
One potential pitfall I already mentioned is documentation of the job search. You need to have detailed information of who you contacted, when and what they said. I have seen the BWC and employer’s representatives call the people listed on the forms. Often the potential employers don’t remember specifically who called, which I can argue around. But if the BWC finds there is no one working there by the name on the form, we have a problem.
I also advise my clients to make copies of any applications they complete. If the application was done online, take a screenshot before its submitted. The more documentation the better.
Another issue I sometimes run into pertains to the amount of effort put into the job search. Non-working wage loss is viewed as a full-time job search, meaning you must be spending close to a full-time work load applying for work and contacting potential employers. I had a client who was only contacting one or two places a week. Ultimately that was found to not be a valid job search and she was denied wage loss. So make sure you are making as many contacts as possible. The ultimate goal would be to find a job, so putting this amount of effort in should hopefully be worth it!
There are less issues for working wage loss, but they still exist. Since you are getting paid the difference from your pre-injury wages, working wage loss will stop once if/when you make it to that wage threshold. This may seem like a non-issue, but for people with a low pre-injury wage rate, they may max out the working wage loss around the minimum wage.
One other warning for working wage loss, if you are making significantly less than the pre-injury wage rate, you may need to show that you have put forth a good-faith effort to find better employment. I once had a client that this happened to. She was working for a day care part-time making minimum wage. Ultimately we could not prove that she was unable to find a better-paying job because she should have been able to find at least something for minimum wage full time.
Wage loss may be beneficial for many injured workers, but the documentation has to be done correctly. Call our firm if you think you are entitled to wage loss in your workers’ compensation claim.
Next time I will talk about another workers’ compensation benefit that helps people transition back to work – vocational rehabilitation.