And this is a blog dedicated to Mississippi Workers' Compensation
Pay the man!
This week we get to talk about something we all love...MONEY! You can learn a lot about a someone when money gets involved. As Woody Allen once said, “money is better than poverty, if only for financial reasons.”
Last week, as I was coming home a little later from work than normal, the UPS driver was pulling up to my house. This is a common occurrence. He could tell I was trying to pull into my driveway, but he was parked where I could not. When we finally made eye contact, he simply walked over to my truck to hand me a package rather than leaving it at my door. I rolled down the window and the man handed over what was clearly a brown packaged box from Amazon. As he went to walk away, he looked back and said: “you are lucky guy. You get a package almost every day.” In reality, “I” rarely get a package, but I could vividly picture my wife in that moment thinking....
While we all want money, we oftentimes have a difficult time determining how much a claimant should get. Many times, I get a copy of a wage statement and calculate a different average weekly wage (AWW) than what the adjuster calculated. I have had this come up several times in recent weeks, so I wanted to touch base on a few tips for ensuring we are calculating the same AWWs.
First, we need a 52 week pre-injury wage statement for calculating a claimant’s AWW. What if the claimant has not worked for an entire year? The Commission has said that as little as four weeks are sufficient to calculate a pre-injury AWW. While four weeks is sufficient, the more the better (preferably 52 weeks).
What if your claimant has worked for less than four weeks? That is another situation that occurs often. In that scenario, we will need a similarly-situated employee’s wage statement. Essentially, the employer will need to find another employee who is in the same grade, employed at the same or similar work in the community. We will then take a copy of that employee’s 52 week wage statement in order to calculate the average weekly wage.
One last caveat that many attorneys do not consider is if the claimant actually missed more than seven days from work in the calendar year preceding the injury.
“If the injured employee lost more than seven days during such period, although not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks remaining after the time so lost has been deducted” MISS.CODE ANN. § 71-3-31
What does this mean? Let us use an example. We have a claimant who has worked 52 weeks prior to his date of injury, but missed a total of 10 days throughout that time. In Mississippi, we use a five day work week; therefore, missing 10 days would equate to two weeks. Generally speaking, we take the total amount of gross wages and divide by 52 (the number of weeks). However, if claimant were to miss 10 days (or two weeks), we would then take the same amount of wages and divide by 50 instead of 52. This would actually increase the claimant’s average weekly wage.
Now that we have a correct and sufficient wage statement, we then need to determine what all is included in the wages.
“Wages” are defined as follows:
“(k) “Wages” include the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of injury, and also the reasonable value of board, rent, housing, lodging or similar advantage received from the employer and gratuities received in the course of employment from others than the employer. The term “wages” shall not include practical training received by students of an educational institution as a part of such educational institution's curriculum.” Miss. Code. Ann. § 71-3-3 (West)
This is a case-by-case scenario depending upon the type of employment and wages for same. Per diem is considered a component of wages in some states, but not others. Some of my clients are in the trucking field, where per diem is commonly paid. In Mississippi, per diem is to be included within the gross wages when calculating the claimant’s AWW. This has been clarified by the Commission recently, so please make sure you are including this in your AWW calculation in the event that per diem is a benefit paid to your injured worker.
In summary, we first add up all of the “wages”. Once we have the total amount of wages, we then divide that number by the amount of weeks the claimant worked, which gives us the claimant’s AWW. In paying indemnity benefits, we would then take that figure and multiply it by (two-thirds) to determine the weekly compensation rate. The compensation rate is what will actually be paid to the claimant for indemnity benefits, subject to a maximum rate for that year. Please refer to the “quick reference” under “USEFUL LINKS” which details the maximum rate for every year from 2007 through 2017.
Of course, there are other variables involved in calculating an AWW and other factors which can impact these calculations. If you ever encounter a scenario which is unique, please feel free to reach out to me and I can certainly assist you in preparing any calculations.
P.S. I will be flying to Orlando, FL in the morning for the WCI Conference. If any of you plan to attend the Conference, please send me an email as I would love to meet over a meal possibly, or at least say hello. I will be there as of tomorrow, and I do not fly back to Mississippi until Thursday morning. I would love to meet up with anyone who is available.
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Attorney with Markow Walker in Ridgeland, MS