Tuesday, April 22, 2014

Paying Workers to Attend Medical Appointments

An injured worker is entitled to reimbursement for mileage expenses when traveling to and from related medical appointments. But, is that employee also entitled to receive wage loss benefits for the time missed from work while attending related medical appointments? That answer is not as easy.


It is certainly reasonable to expect, and even require the injured employee to schedule medical appointments around his work schedule so as to avoid disrupting the workday . Of course, health care providers often have the same "work hours" as the rest of us. Thus, there will inevitably arise instances when a worker must miss work to attend medical appointments. However, before compensating him for this missed time, there are some questions that should be asked and answered. 


A claimant does not have the unfettered right to schedule a medical appointment during work time. The Commission requires proof that the claimant reasonably had to miss work in order to attend the medical appointment. In so finding, the Commission has ruled that a claimant who schedules a required medical appointment on a workday, or during work time, may receive temporary total or partial benefits if it is shown

(1) that the medical condition required the appointment during work hours;
(2) that scheduling the appointment at a non-work time would interfere with obtaining favorable work assignments; or
(3) that scheduling the appointment at a non-work time would cause substantial hardship.

The burden is on the claimant to show why his appointment could not have been scheduled on a non-work day or time. Generally, the Commission will find the burden met where there is evidence that the worker tried, unsuccessfully, to schedule appointments around work, the provider has limited office hours available, and/or there is significant travel time involved.

So, before agreeing to compensate workers for attending medical appointment, be sure to confirm the facts. Advise the worker that he must put forth a good faith effort to avoid missing work to attend medical appointments; advise the employer to try to accommodate medical appointments by adjusting work schedules if feasible. If it appears to be a recurring problem with a particular claimant, ask him to make the required showing or effort and necessity before agreeing to pay compensation. Often, this will prompt the worker to miraculously obtain appointments outside of work time without any undue hardship. 

Thursday, April 3, 2014

Do I Have to Include That? . . . Calculating AWW


 
Must you include non-Longshore wages when calculating the pre-injury Average Weekly Wage (AWW) for a claim pursuant to the Longshore & Harbor Workers' Compensation Act (LHWCA)? In a nutshell - YES. 
 
The scenario is not at all uncommon when it comes to Longshoremen and other maritime workers who qualify for LHWCA benefits following an industrial injury. It is a cyclical, transient, even sporadic way to earn a living for many. In the year preceding an injury, an employee may work for several different employers, both in Longshore and non-Longshore jobs. So how do we calculate the pre-injury AWW for purposes of determining or paying benefits for lost wages? 
 
Under Section 10 of the LHWCA, there are three methods of calculating AWW. The first method applies to workers who have worked for most or all of the previous year in the Longshore employment. The second method applies to workers who have not worked most of the previous year, but the employer has the records of a similar employee upon which it can base a wage calculation. If neither of the first 2 methods fairly or reasonably approximate the actual pre-injury earning capacity of the injured worker, the judge will resort to the third method located in §10(c) of the LHWCA. This statute is sometimes referred to as the "catch all" provision. 
 
Under §10(c), the judge considers many factors in attempting to approximate an entire year of work for the claimant. It is important to note that the judge has broad discretion under §10(c). For instance, he or she may go back in time beyond one year to determine the worker's actual earning capacity at the time of the injury; and the judge may consider, among other things, the following:
  • Actual earnings of the claimant at the time of injury
  • Average annual earnings of other similar employees
  • Earning pattern of the claimant over a period of years prior to the injury
  • Claimant's typical wage rate multiplied by a time variable
  • All other sources of income, including earnings from non-longshore employment
  • Probable future earnings of the claimant
  • Any other fair or reasonable alternative 
 
Using the above factors, the ALJ will arrive at a figure approximating claimant's annual earnings. That figure will then be divided by 52 to reach the AWW. In the case where a claimant has worked both Longshore and non-Longshore employment sporadically for the past year, the ALJ almost certainly will include the non-Longshore wages in order to determine the claimant's actual earning capacity. 
 
One important caveat is that if the employee has wages earned in other employment that are unaffected by the claimant's injury, those wages are excluded from the calculation of annual wage earning capacity. The ALJ must determine whether the injury disables the claimant from all sources of income, or only from his Longshore employment. 
 
The calculation of the AWW is critical in determining the amount of compensation benefits a claimant may be entitled to receive. Therefore, it is important to carefully and accurately calculate the AWW as early as possible once a claim for benefits has been made.