It is not uncommon for a workers' compensation claimant to be underpaid by the insurance carrier because of an omission by their employer or a mistake by the workers' compensation carrier. In Abilene, Texas, where I practice workers' compensation law, I see several cases every year in which a worker is being underpaid, sometimes severely.
To receive the full amount of benefits that you are entitled to receive under the law, it is important to ensure that your average weekly wage is being calculated correctly.
What is an average weekly wage? Normally, it is a representation of the average gross pay received by the employee during the thirteen week period immediately preceding the accident. It includes both money that the employee received ("pecuniary wages") and benefits that are provided to the employee that are in other forms ("non-pecuniary wages"), such as health insurance premiums, lodging, housing, or rent. However, non-pecuniary wages are usually calculated only if the employer stops providing them for some reason.
The average weekly wage is initially determined by multiplying the number of hours an employee works by their wages. However, eventually, the employer is supposed to provide the carrier with a document known as a wage statement. Once the wage statement is received by the carrier, then the benefits will be determined by the contents of the wage statement.
If the employee has not worked for the employer for at least thirteen weeks, then the employer is supposed to calculate wages based on a "similar employee who did work for the employer for at least 13 consecutive weeks..." In this situation, there is a lot of potential for the employer to provide bad information to the carrier, often wishfully thinking that the employees with the lowest possible wages (leading to the lowest possible potential benefits) are the most appropriate. It may not be possible to resolve a dispute over a "similar employee" without the help of an attorney.
Once the average weekly wage has been established, then the weekly benefit received by the employee should usually be 70% of the average weekly wage. Low wage earners (those receiving less than $10 per hour) will receive 75% of their average weekly wage while receiving TIBs (temporary income benefits).
The amount of benefits, however, is also subject to a maximum and minimum amount, based on the date of your accident. Currently, for accidents occurring on or after October 1, 2019, the maximum temporary income benefit is $971, and the maximum impairment income benefit is $679. The minimum benefit in both cases is $146. You can find a full listing of the available maximum and minimum income benefits here.
If you suspect that your average weekly wage has been improperly calculated, the first step that you should take is to request a wage statement from the employer. From there, compare the contents of the wage statement with your paycheck stubs or deposit receipts from the same period. If you can prove that they are inconsistent, provide the additional documentation regarding your true income to your adjuster.
If the adjuster agrees with you, you should receive a payment to make up for the beneifts that have been underpaid in the past. Additionally, your new benefit payments going forward should reflect the correct amount.
If you are unable to resolve the dispute at this stage, you should contact a qualified workers' compensation attorney to assist you.