You’re (Probably) Calculating Your Workers Comp Benefits WRONG!

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You’re (Probably) Calculating Your Workers Comp Benefits WRONG!

Good afternoon everybody. Today we're going to discuss calculating your workers' compensation benefits and calculating the value of your settlement.

As you know, my name is Rex Zachofsky, 212-406-8989. If you have any questions, feel free to give us a call.

How is the value of a workers' compensation case determined in relevant factors?

What are the biggest factors in determining the value of a workers' compensation claim?

The first biggest factor is the most important factor, average weekly wage. Your average weekly wage is your gross salary for the 52 weeks leading up to your accident date. So, if you were hurt on February 2nd, Groundhog Day, 2023, we're going to look at your salary from February 2nd, 2022 up to February 2nd, 2023 and figure out the gross average per week that you earned over that period of time. And that is your average weekly wage.

Workers' compensation pays up to two-thirds of your average weekly wage up to a statutory maximum, a cap. So, every year that cap changes, it's two-thirds of the state average. You know, if you're Bill Gates and you're hurt in New York State, you cap out. Sorry about that. You'll cap out and you'll get the maximum rate of compensation. There is a ceiling to it.

That's the first most important factor is what did you earn. What was your salary before the accident?

The next most important thing is your lost time. For cases involving head, neck, and back injuries, and back being probably the biggest injury in the state of New York, you need to be out of work. You need to have lost time in order to get benefits. And you're looking at the value of a case for a head, neck, or back injury. You need to factor in how much lost time there is as of the time of settlement.

What has and has not been paid in terms of workers' compensation benefits, and what anticipated future lost time will there be? And what will the third factor is? What will the degree of disability be over that period of time? So, the big three are average weekly wage, lost time, degree of disability. With cases involving what we call schedule loss of use. Those are cases with injuries to the hands, arms, legs, feet, fingers, and toes, things like that. Your permanent disability, the schedule, the workers' cop actually has a schedule. That has an actual chart which we use to figure out what the value of each body part is. Based upon your doctor's findings for permanent disability.

That is the second most important thing. It's your average weekly wage and your level of disability. When it's a schedule, it's what percentage of loss of use you have to that body part. With non-scheduled cases like we were talking about before, the head, neck, and back cases, your lost time and your permanent disability are the two most important factors.

In order to determine the value of your case, you want evidence of your salary, you want to confirm that with your attorney, make sure when your average weekly wage is set by a judge or set in court or suggest to buy an insurance company, that it's correct. So, talk to your lawyer about that and hopefully make sure it's the right number because that's the basis of all of your benefits.

What information do you need before you can accurately calculate the value of your workers' compensation case?

At what point in your case should you have everything you need?

Proof of your average weekly wage is the most important thing. You could provide your lawyer or the judge in your case to determine your average weekly wage. So, tax returns, pay stubs, any proof of your salary, your gross weekly salary.

When it comes to tax returns, your tax returns don't show you earned week by week for that particular year. So, your work schedule, your own personal calendar showing what days you worked or what weeks you worked and when you didn't work or when you took vacation, when you were out sick, it's very helpful to know when looking at a person's tax returns.

We just had a client in here about half an hour ago where we were discussing tax returns. When did that person work for that particular year? When did they take time off for being sick, time off for vacation, personal time? When you're looking at a whole year's worth of earnings to determine to break that down weekly, we need to know how many weeks you worked in a year. There's 52 weeks in a year. If you worked every single week, we take that big number and we divide it by 52. If you took a two-week vacation and you were out sick for another week, well then that 52 weeks is now 49 weeks. So, it's very important to know how many weeks you worked in a particular year, combine it with your tax returns, pay stubs and any other proof of your salary. It's very, very, very important. Give that to your lawyer.

If you're not represented by a lawyer, make sure you give that to a judge so that they can make sure that your average weekly wage is correct. That is the basis. That is the foundation for all of your benefits. Super, super important. Like I said before, accurate records of your lost time, timekeeping. When did you work? When did you not work? A lot of people, a lot of my clients have their own little calendars and it shows that they work this week, this week, and this week, and then they took that week off. If you have calendars like that, if you have any proof of your work status, your working and your lost time, essentially, it's very, very helpful determining what your average weekly wage and your award should be.

Equally as important, is medical evidence. Make sure you see a doctor. If you're out of work and you're not able to work because of your injury, because of your disability, make sure you have medical evidence from your doctor. Make sure you saw your doctor. Being out of work, in order to get lost time benefit, you need to be out of work, obviously, but you also need a medical report to support your lost time.

Make sure you see a doctor, make sure it's properly documented. If you're going to be out of work, medical reports in New York State are good for 90 days of lost time, three months, give or take. So if you're out of work, you need to see a doctor once every three months of your lost time to maintain that benefit, to maintain that award. See your doctor at least once every three months. I tell people to see doctors every six weeks. I'm not a doctor, so I can't make those recommendations from a medical perspective. I'm doing it from a legal perspective. Your doctor might want to see you more or less frequently, so make sure you keep in touch with your doctors there.

All right, I see some questions flowing in. We're going to get to those in one moment. Well, here's a relevant question we're going to touch on.

"What if you had a different job during that year that paid considerably more?"

It sounds like you're talking about what we refer to as concurrent employment. If you're working two jobs or three jobs or ten jobs, that's concurrent employment. If you have multiple jobs and the concurrent job, the second job is one that you would be entitled to workers' compensation benefits if you were hurt on, then you can combine those salaries. So you should certainly speak to your lawyer or the judge. Get them all your tax returns with all of your W-2s there to show all of your earnings and combine all that, and that will boost your average weekly wage. That's a wonderful question, very important topic. I believe we are going to do a video just about concurrent employment at some point in the near future because it is that important. It could take a case and it could double or triple or quadruple the overall value of a case based upon what the earnings are there.

We've had circumstances in the past where a person is moonlighting as a bartender two nights a week, and I mean, we had a couple of clients actually where they had exploding beer bottles, and they were injured. That job only worked two nights a week, and they didn't make a whole lot of money. It's bartending salary and tips. It was pocket money for them. It wasn't their salary that they were living on, but it caused them to lose time at their day job. We were able to get the concurrent in, and whereas their salary with their bartending job might have been two, three, four hundred dollars, their main job was $1,000 a week, and that significantly boosted the overall value of their claim. It's super important, and if you do have multiple jobs, make sure your lawyer or the judge knows and you raise what's known as concurrent employment.

Again, it's got to be a job that you would otherwise be entitled to workers' compensation benefits. So if your second job as an NYPD, well, that might not be the best example, it's got to be a job that falls under the coverage of New York State workers' compensation. So thank you. Certainly speak to somebody back in current employment. If you want to give me a call, I'm here to help.

What mistakes do injured workers often make when determining the value of their workers' compensation case?

How can they get a more accurate idea of what their case is worth?

It's the most common question I get. What is my case worth? Whether it's a client sitting across the desk from me, somebody I'm interviewing for the first time and signing their case up, or one of my nerdy friends at a party, they love to pick my brain about workers' compensation cases, what is my case worth? What is a broken finger worth? What is a bad back worth?

It's so difficult to really give an estimate as to what the value of any particular case is worth. So the one thing that I hear about all the time from clients, and it's very important, people will call me and talk to me all the time, and they'll say, "Well, I haven't been able to pay my rent in six months, or my credit card bills are due, or I owe child support." Unfortunately, there's a lot of those factors that are just irrelevant, and you could tell a judge, and I've had clients tell a judge, "I haven't been able to pay my rent in six months, and the judge will sympathize with you, and the judge will feel bad for you, and then the judge is going to say, "I'm sorry, there's nothing I can do about it," because those are not factors in determining the value of a case.

The value of a case is based upon the extent of the injury, the extent of the lost time, the extent of the permanent disability, and your average weekly wage, like we discussed earlier. Average weekly wage is huge. So, you know, a lawyer's job, and the reason why a lawyer like me, why we're valuable in what we do is, we are able to take the facts of your case and apply the law to the facts of your case, and we filter out what's irrelevant, we filter out what's not going to result in you getting a recovery, and we apply the law to the important factors. So, unfortunately, it kills me to tell people, you know, the fact that you haven't been able to pay your rent in a few months is not something a judge is going to consider, and it's not something that's going to boost the value of your case. And it's because of that the people overvalue their case.

I'll have clients come to me and say, "My rent is $3,000 a month, and it's six months, so that's $18,000 a year, I owe $20,000 in an outstanding credit card, so now I'm up to $38,000, and I owe $50,000 in child support that I haven't been able to pay, so now I'm at $88,000, get me $88,000," Well, your case isn't worth anything close to that because those numbers just don't, they don't convert.

And by the same token, a lot of clients also undervalue their cases. I can't begin to tell you how many people I will call up and I'll say, "Hey, I've reviewed your file, and I think we could put a demand in for $20,000 or $30,000 or $40,000 settlement, and we could probably get you some money here," and they turn around and say, "But I went back to work three months ago. Yeah, I know that." And you still have value in your case.

There's still value in your permanent injury. You still might not have been paid for all of your lost time. There's still might be some outstanding issues that are worth money in your case. So people also undervalue their case. I can't begin to tell you how many people I surprised, and it's the greatest day as a workers' comp lawyer when you tell your client that, "Hey, I got you at $25,000 or $40,000 that they weren't expecting." They tell you, "I went back to work," or "I stopped treating," or "I feel better for the most part," or "I'm able to deal with my injuries." And you say, "That's great. I got you a whole bunch of money on top of that," And it makes people's day.

Other factors that people also bring in pain and suffering, we hear it every day, they'll say, "The judge doesn't know how much pain and suffering and what I've been through." Yeah, the judge doesn't, and the insurance company doesn't, and unfortunately they're not going to factor that in to the overall value of your case. Pain and suffering are not compensable aspects of your claim unless they are disabling. It's your disability that's relevant here, not just pain. So we need to keep that in mind.

Are there any benchmarks for case value that injured workers can look to?

What sort of ranges can people expect for different injuries?

Well, different injuries have different values, and like we discussed earlier, under the workers' compensation law, generally speaking, different injuries are handled in different ways. And I call them core body injuries, head, neck, back, and this includes stroke, heart attack, brain injuries, any core, systemic disability, or the other way to look at is anything other than arms, legs, hands, feet, fingers, toes, are handled one way. And the value of the case is based upon your salary, your average due to the wage, like we discussed, your lost time in any permanent disability, and you are only compensated for lost time.

So if you have a back injury, if you hurt your back lifting, or you've got hit by a car and you have a bad back as a result, you are only compensated for your lost time and you get your medical paid for. Unfortunately, as soon as you go back to work and you're earning the same amount that you're earning before the accident, so you equal your average with the wage or you earn more, then you're not going to be generally entitled to monetary awards moving forward. You still are entitled to your medical, you can get treatment to get better, but from a financial perspective, from an indemnity perspective, as we call it, the value of your case is only based upon the lost time, and that's for head, neck, and back injuries, again, generally speaking.

With extremity injuries, arms, legs, hands, and feet, the value of your claim is again based upon your average due to the wage, your lost time as a factor, but the largest factor there is your schedule loss of use, like we discussed earlier. How much permanent disability do you have to that particular body part, the shoulder, the elbow, the knee, the hip? How much permanent damages there based upon your doctor's findings and unfortunately the insurance doctor's findings? Those are finite numbers. 100% of an arm is 312 weeks of compensation, so if the doctors agree that you have a 10% disability because of a shoulder or an elbow injury, you would get 31.2 weeks of compensation, 10% of that at the total rate, at 2/3 of your average weekly wage. Those are numbers that are more easily determined based upon the nature of your particular injury.

You can look to the guidelines and you can speak to an attorney, your attorney, or if you don't have one, reach out to somebody and go over what the facts of your case are. We're always available to have discussions like that to try to guide you through the process.

How do you know if your workers' compensation case is being undervalued?

What can you do if that happens?

Unfortunately, if your case is being undervalued many, many times, people miss it and it doesn't get picked up upon until it's too late, unfortunately. The reason for that is the most often when I see a case being undervalued is because the person didn't have an attorney. I'm not trying to sell my services here, but it's just the fact. Insurance companies will swoon you. They'll be super nice to you. They'll make you feel happy. And they'll say, "By the way, we're going to close your case. We're going to give you $20,000." Some people think that's great and they take it. When I finally get to look at that case, afterwards, I see that the value is higher. And people don't realize that they're being undersold because they feel like they were dealt with nicely. They smile on your face and they're stabbing you in the back.

What you should do is you should always speak to an attorney. Even if you've handled your case on your own for the most part and you feel confident and comfortable with the way things have worked out, run up by an attorney, get a consultation. Consultations are free. And if they feel like your case is being undervalued, they can help you get more money. If you're dealing with the insurance company on your own and you get that consultation, the lawyers know how to negotiate with an insurance company as well. So, you should certainly get a consult.

Also, if a bad decision has already been made, if the insurance company offered you money and you accepted it, or there was a bad and adverse decision from a judge, an attorney is going to know what to do to hopefully get you a better outcome. And either they can negotiate a different settlement, change the settlement if it hasn't gone through yet, or perhaps if it's an adverse decision from a judge, they can file an appeal and try to salvage what they can from that case.

So, please, and again, it's not me trying to sell my services here, but you should certainly consult with a lawyer.

We have a question here on Instagram: "What if a person has continued full use of the extremity, but the doctor says that the person will be in constant pain because of the injury? How is the value treated?"

Well, if we're talking about an extremity, we're talking about a schedule loss of use. Thank you, TMCA60. I don't know what state you're in, but thanks for the question. In New York State, that's a schedule loss of use. We're talking about extremities. And unfortunately, the pain is not considered in the value of the loss of use. Loss of use, schedule loss of use like we discussed before in that little chart that I showed, is based generally on range of motion. There are some what are called special considerations in the board guidelines, frozen shoulder, or each different body part has its own special considerations.

But generally speaking, the value of a schedule loss of use award is based upon range of motion. So, that's really what it comes down to. So if a person has full range of motion and pain, presumably the schedule loss would be low because they have use of the arm. And pain is not necessarily a compensable aspect of a claim. Good question though, thank you.

Do you have any expert tips for workers trying to figure out what their workers' compensation case is worth?

Well, the most important tip in not so much figuring out what your case is worth, but maximizing the value of a case is timing. Timing is super important. Understanding proper timing from both a medical and a legal perspective is very important to determine when is the best time to settle the case. You don't want to exhaust all of your treatment. You don't want to exhaust all of your permanency awards and then think that while you've hung on this long, your case should be worth something. You want to get to your case before it peaks in terms of value.

It's difficult for the injured worker themselves acting in a pro se, representing themselves to reach that conclusion. It's best to speak to an attorney. They know when the timing is right to start negotiating and to settle a case. It's also important, and again, this is a skill that a lawyer has that the lay person does not. Having a comprehensive understanding of how different cases settle in different ways, that permanent partial disability had neck and back case versus a scheduled loss of use case, a lawyer is going to know, especially when there's overlapping injuries, injuries in both categories. A lawyer is going to know how to dissect that case and find the most value and present it in a way that's most favorable to you and get you as much money as they can get you. You don't always know, and it's not like we said before, based on pain only, your lawyer will know how to maximize case value there. So, it's super important.

A couple of other questions that popped up here: "How would you calculate the valuable of multiple body parts?" Good question. And again, it depends on what those multiple body parts are. As we said before, there's two categories.

There's the schedule loss of use, the extremities, and there's the non-schedule, head, neck, and back systemic type of cases. When there's overlap, when you have injuries in both categories, you really need to figure out which route your case is going to go. And it really is based upon lost time. If you have a broken arm and a bad back and you still haven't gone back to work after a few years, your case is going to go the non-schedule, permanent partial disability route, like a back case. If you're able to deal with your pain and the worst of it was the broken arm, well then your case might go the schedule loss of use route, especially if you're back at work without having lost money, we call it reduced earnings, if you're back at full salary. So, it really depends when there's multiple body parts. If there's multiple extremities, if it's your shoulder and your hip, well that's an arm and a leg. We just add them both together and we get you the value of both schedule body parts in your overall settlement. So, it really depends on what the body parts are, but it's a very, very good question. More often than not when people get hurt, they hurt multiple things.

Another question: "What does it mean a case is traveling?" Usually what a judge is saying a case is traveling, it means you have another case. You have an older case, maybe a newer case, but you have a second, third or fourth case and they are traveling together and often times they travel together because there's overlapping injuries. So, you might have hurt your back five years ago and that case may or may not still be open and then you hurt your back again last year. Well, when your case comes back on, when either case comes back on, the judge is going to want them to travel together. There's no sense in coming back and dividing their time, they're going to address everything in one shot each hearing and all your cases will be traveling together. So, that's what it means when a case is traveling generally.

Let's see if there's any other questions here, "How to find an honest lawyer who works for me and not the insurance company?" Well, I can tell you how to find one honest lawyer that works for you, not the insurance company, you can call me, but there are a lot of great lawyers out there.

My telephone number here is 212-406-8989. Always happy to take a call and walk through your case with you and see what we can do to help you out. I don't know any attorney that works for the insurance company, but I understand the frustration that many people feel. And again, it's a difficult path to navigate. We're here to help give us a call anytime. We're always free to help out and take a call and discuss somebody's case.

A couple more questions that popped up here: "What if the judge established the case and the C240 is produced?" A C240 is the employer or the insurance company's statement of your earnings. So like we said earlier, your average weekly wage is based upon the 52 weeks leading up to your accident date. A C240 is just a breakdown of what you earned each week for those 52 weeks, and we use it to figure out what your average weekly wage should be. Oftentimes, if a C240, if that document is not produced as it should be, a judge will sometimes set your average weekly wage based upon other factors and he'll set it with a finding that we call without prejudice, which means it's subject to change. So the judge will set your average weekly wage without prejudice just so the case can move forward, move some money to you, and then if that C240 comes back and it shows a different number, we can always modify it, modify the awards, and we can move the money. We can move those benefits to you. So a C240 is a document that the insurance company uses to report your earnings. There should be one in every case, very, very important document.

Another question: "Does it matter on what type of claim adjuster you have depending on how much money your case is? Like a senior?" Okay, I see what you're asking. Does it matter if you have a senior adjuster versus a regular adjuster? Listen, every insurance company is their own business. They're all set up differently. Some of them do have departments for grave injuries or more severe or higher exposure injuries. Don't worry about your adjuster because you don't have a choice. You can't ask for a new adjuster. You can't ask to switch adjusters. If you do, I would be fearful that they would do something to spite you. So don't worry about your adjuster. If you're having a problem with your adjuster, first of all, if you're represented by a lawyer, you shouldn't ever be speaking to your adjuster. You should be speaking with your lawyer. Let your lawyer deal with your adjuster. Good, bad, or indifferent. It's your lawyer's job to deal with the adjuster. If you don't have a lawyer and you don't like your adjuster, get a lawyer and let them deal with your adjuster. You don't have to deal with that.

Another question: "How long does vocational rehab last? Is there a time limit to find a job?" You're talking about work search. Your time limit to find a job is until a judge tells you to stop or until, until you, generally until you're found to have a permanent disability. Once you, if you've been instructed to do a work search, and this is a topic on other videos, and we will have more videos on this because it's a very hot topic right now.

In New York State, if you've been instructed to do a work search and you have to maintain attachment to the labor market, generally once the judge determines that your injury is permanent and you've been found to have a permanent partial or permanent total disability, usually in permanent total cases you don't look for work, but it's usually a permanent partial case. Once that permanent disability finding has been made, then your obligation to look for work is done and you can generally stop or if a judge tells you could stop. In other circumstances, there will be a work search obligation. If you have surgery and you've maintained labor market attachment, if you've done a good work search and then you have to have surgery, you don't have to look for work, generally speaking once you have surgery. And again, what I'm telling you here is these are generalities. Every case is different and you need to speak to your attorney about your specific circumstance because every case is different and you might still have to look for work under certain circumstances.

Another question: "Is there a way to calculate the value of a workers compensation heart attack claim?" A heart attack claim is handled like a neck or a back claim, generally. It's a systemic disability. It's not a schedule loss. We're not going to find the percentage of value of your disability and pay you and everyone goes on their way. It's based upon your lost time and your average weekly wage. So heart attack, if you're out of work for an extended period of time, you're paid for your lost time as long as that lost time is related to the heart attack. It's based upon your average weekly wage and it's based upon your degree of disability throughout the time that you're disabled. And if you never go back to work, well, then you'd be entitled to permanent disability awards presumably. So it's different than a schedule loss and it's more like a neck or a back injury when you have a heart attack.

Another question: "My shoulder specialist doctor might release me after eight months since surgery, but I'm still having problems with neck and back, only approved chiropractic, not MRI, to get a diagnosis." I'm assuming. You know, here's the problem there. I'm not a doctor. You're not a doctor. So it's hard for me and you to say what you might and might not need. Yeah, we hear about MRIs and EMGs and things like that. But what you really need to do is just have a sit down with your doctor and say, "Look, you know, I'm still having pain. Is there any other testing that we could do to figure out what's wrong with my neck and my back?" "What else can we do to get to the bottom of this? What else can we do to make it better?" You really just need to have a sit down with your doctor and get to the heart of the subject here. And also, if he's clearing me to return to work, is it full duty? Is it light duty? Is there a lifting restriction, a sitting restriction, anything like that? No overhead reaching? You know, there's all different restrictions. So it's hard to say exactly what's going on. I would certainly recommend you have a chat with your doctor, have a chat with your lawyer, and just get a better understanding.

Thank you, everybody.

Any questions at all, please don't hesitate. 212-406-8989. I do my best to return every single phone call that comes in. I am Rex Zachofsky, have a great day.

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