I’ve been a lawyer for 25 years now. My primary focus that whole time has been Illinois workers’ compensation cases. I know enough about other areas of law to talk intelligently, but not so much that I could or would represent anyone in an outside area. In fact, if I had to file for divorce or defend a DUI, I’d really have no idea what to do and would be mostly winging it.
Sadly, I see a lot of attorneys try to dabble in work comp and it times it seems like they are winging it too. They know just enough to be able to handle to most straight forward of cases, but not enough to help most clients get the best result. And one mistake they seem to make over and over ends up costing their clients a lot of money.
When you are off work due to a job injury, you get 2/3 of your “average weekly wage” for your time off. So if you make $1,500 a week, you should get $1,000 a week tax free.
Average weekly wage or AWW is calculated by looking at your income for the 52 weeks prior to the injury or “parts there of.” That means if you are hired on January 1st and get hurt July 1st, they are going to look at your earnings over 26 weeks, not 52. That makes sense and most lawyers won’t screw that up and most insurance companies won’t try to get away with cutting your wages in half.
The people who tend to get screwed are the ones that work something like 47 out of 52 weeks or 50 out of 52 weeks and don’t get paid for the days they missed. If you made $75,000 in the year before you got hurt and worked all 52 weeks, your AWW would be $1,442. But if you made that same money by working 46 weeks, your AWW would be $1,630. That would result in an increase in your weekly benefits of about $125.00.
What typically happens is a worker will have most weeks that they work five days, but some weeks where they work 1-4 because work isn’t available. But if you look at a wage statement, it will show wages earned each of the 52 weeks prior to the accident so the insurance company tries to divide by 52 weeks. And inexperienced attorneys will let them get away with it because they don’t know any better.
The reality is that the law is really fair, but nobody but an experienced attorney will make sure that it’s applied correctly and in your favor. And of course if they screw up your AWW it will also mean your settlement will be too low and who knows what else they will screw up on.
I actually have a lot of lawyers who dabble in work comp call me for advice. I try to guide them as best I can because I want the best for every injured worker. But it does make me shake my head as to why they even took the case at all.
The good news is that even if you were underpaid, it can be fixed all the way up to the time when your case is settled or tried. So if you learn that your lawyer made this simple mistake, give them the boot and get someone in your corner who knows what they are doing.