by Jacob Brandt | May 14, 2019 | Workers' Compensation
What is my average weekly wage if I have an occupational disease and haven’t worked in years?
After a workplace injury, you may be concerned about how much compensation you will be entitled to. Many injured workers often wonder the exact amount that they will be paid in compensation and how that amount is determined. Each year, there is a set maximum amount of compensation payable to an injured worker. This rate is recalculated and annually set by the Ohio Bureau of Workers’ Compensation. (Click here to take a look at this year’s rate chart.)
A very important figure in the determination of how much compensation a worker is entitled to is the injured worker’s average weekly wage (AWW). The AWW is a number meant to represent the total amount of money that an injured worker would make in a typical work week. This calculation is usually based on the last year of your employment prior to their injury. If the injured worker has been employed for 52 weeks prior to their injury, the calculation is straightforward. To calculate the AWW, the Bureau of Workers’ Compensation will take the total wages earned for the 52 weeks prior to the injury and combine them. They will then take that total of wages from the prior fifty-two weeks and divided them by fifty-two. That number is then set as the AWW and thereafter is used to determine the rate at which various forms of workers’ compensation benefits may be paid.
Under certain special circumstances, the injured worker’s AWW can be recalculated or calculated under a different formula. Despite the simplicity of the AWW calculation, issues often arise when an injured worker is entitled to compensation not as the result of a specific workplace accident but rather the development of an occupational disease related to their work conditions. These types of special circumstances can be unexpected and may result in complications in calculating the AWW.
An occupational disease may take months or even years to develop or to be diagnosed. Often, when an injured worker is diagnosed with an occupational disease, they have already left the workforce and have no record of wages being earned in the fifty-two weeks prior to their diagnosis. How is the AWW calculated in these complicated situations? In such cases, Ohio case law has provided an alternative calculation that accounts for instances where an injured worker has an occupational disease and has not worked for some time.
An important case in determining the AWW in special cases such as these is Preston v. Peabody Coal Co.. In Preston v. Peabody Coal Co., the Ohio Supreme Court concluded that the “disability due to occupational disease begins” on the day after the last day of work, rather than the date on which the claimant was found to have been totally disabled. Preston v. Peabody Coal Co., 12 Ohio St.3d 72, 465 N.E.2d 433 (1984).
The latency of an occupational disease arising presents special circumstances. What this means is that in cases where an injured worker has become disabled, and therefore entitled to compensation as the result of an occupational disease, the last day worked is the starting point for the AWW calculation.
Take this situation, for example. Assume that an injured worker spent his entire career working in a factory that exposed him to silica dust. Let’s say that this individual stopped working for that employer in 2000 and retired, leaving the workforce. Then in 2016 that individual was determined to suffer an occupational disease as a result of that exposure to silica dust while working in the factory. The individual then filed a compensable claim with the BWC. To determine that injured worker’s AWW, the Industrial Commission of Ohio would look back to 2000, the last day of the worker’s employment. The Industrial Commission would then use the wages earned prior his retirement to calculate that person’s AWW.
They would not use the wages from the fifty-two weeks prior to the worker’s occupational disease diagnosis in 2016, because if the worker was not employed, that number would be “zero.”
The AWW is an extremely important figure in the workers’ compensation system because it sets the baseline for all of the compensation paid out in a claim. Therefore, it is very important to ensure that the AWW calculation is proper and does substantial justice to the injured worker.
There can often be errors in calculating your AWW, and it is extremely important to ensure that you are being paid what you are entitled to. If you feel as though you have not received an AWW that truly represents the wages you earned prior to a workplace injury, don’t hesitate to contact The Bainbridge Firm so that we may help you obtain a proper calculation. We want to do everything we can to help you obtain all the compensation you deserve.
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