CALCULATING WORKERS’ COMPENSATION BENEFITS

Calculating Workers’ Compensation Benefits

By C. Brian Davidson

            The calculation of workers’ compensation benefits has confused, baffled, and eluded attorneys since Alabama adopted the Workers’ Compensation Act in 1909.  The confusion is created by the various types of workers’ compensation benefits allowed by the statute and the plethora of exceptions and combinations of benefits allowed by the statutes and interpretations thereof by our appellate courts.  Those of us who primarily practice workers’ compensation litigation often do not calculate the injured employee’s benefit’s correctly which can cause the employee to be underpaid or the employer to pay too much in benefits.  Therefore, it is extremely important for the practitioner to have at least a rudimentary understanding of the calculation of benefits to properly represent our clients.

            The first step in calculating workers’ compensation benefits is to determine the injured employee’s average weekly earnings.  The employee’s average weekly earnings is the employee’s average gross earnings for the fifty-two weeks preceding the date of injury.  If the employee has not been employed by the employer paying compensation for fifty-two weeks then the employee’s average weekly earnings is calculated according to the average weekly earnings of a similarly situated employee who has been employed for fifty-two weeks.  The employee’s average weekly earnings is often confused with the term average weekly wage which is the average gross wage of an employee in the State of Alabama and is determined annually by the Department of Industrial Relations. 

            The next term the practitioner should be familiar with is “weekly benefit” which is the maximum amount of workers’ compensation benefits the employee is entitled to per week.  The employee is entitled to 66 2/3 percent of his average weekly earnings per week subject to the maximum and minimum caps established by Ala. Code § 25-5-68 (1975).

            There are five types of workers’ compensation benefits allowed by the Alabama Workers’ Compensation Act pursuant to Ala. Code § 25-5-57 (1975): (1) Temporary Total Disability Benefits  (2) Temporary Partial Disability Benefits  (3) Permanent Partial Disability Benefits  (4) Permanent Total Disability Benefits and  (5) Death Benefits.  Each of these five types of benefits are calculated differently according to the statutes.  This article will address and explain how to calculate benefits for each of these types of disability.

Temporary Total Disability Benefits

            The calculations for Temporary Total Disability Benefits are set forth in Ala. Code § 25-5-57(a)(1).  Temporary Total Disability benefits are paid to an employee who is injured and is unable to return to work for a period of time.  Temporary Total Disability benefits are the simplest workers’ compensation benefits to calculate.  The employee is entitled to 66 2/3 of his average weekly earnings subject to the aforementioned maximum and minimum limitations for the period of time which the employee is unable to return to work.

Temporary Partial Disability Benefits

            The calculations for Temporary Partial Disability are set forth in Ala. Code § 25-5-57(a)(2).  Temporary Partial Disability benefits are to be paid when the injured employee is able to return to work but is not able to earn the same amount of money.  This commonly occurs when the employee must miss time for doctor’s appointments, according to doctor’s orders, physical therapy, must leave due to pain, or is placed on “light” duty at a lower wage.  The employee’s benefits are paid according to what the employee’s average weekly earnings at the time of injury and what the employee is able to earn after the injury.  Therefore, the practitioner must determine what the employee is able to earn in his/her partially disabled condition.  This can be accomplished by the employee’s earnings since the date of injury or by expert medical and/or vocational testimony.  The employee is entitled to 66 2/3 percent of the difference between his/her average weekly earnings at the time of injury and his/her average weekly earnings or earning ability since the date of injury.  The employee’s benefits are subject to the aforementioned maximum and minimum limitations and are payable for a total of 300 weeks.

Permanent Partial Disability Benefits

            Once a temporary injury is deemed permanent by the employee’s physicians, commonly referred to as maximum medical improvement, temporary benefits cease and the employee may be entitled to permanent workers’ compensation benefits.  Permanent Partial Disability  benefits are the most common permanent benefits paid and the most difficult to calculate pursuant to Ala. Code § 25-5-57(a)(3).  Permanent Partial Disability is paid when the injured employee has sustained a permanent injury but is able to sustain gainful employment.  The practitioner must first determine whether the injured employee has sustained a scheduled or a non-scheduled permanent injury.  Scheduled injuries are injuries to specific parts of the body which have each been assigned a total number of weeks for which workers’ compensation benefits are payable.  The schedule is set forth at Ala. Code §25-5-57(a)(3)a.  The amount of compensation for a scheduled injury is calculated according to the extent(percentage) of the disability.  The extent of disability (or permanent impairment rating) is most often proved by utilizing the treating physician’s permanent impairment rating or the results of a functional capacity evaluation but can also be proved by the testimony of the injured employee.  The practitioner must remember that the judge is not bound by expert medical testimony.  The judge may take into consideration all of the evidence and testimony to adjudicate the employee’s extent of disability.  Once the extent of disability is determined, the benefits are calculated by multiplying the percentage of disability by the number of weeks allowed for the scheduled injury to arrive at the number of weeks payable.  The number of weeks payable is then multiplied by the employee’s weekly benefit or $220.00 whichever is less. 

            Non-scheduled injuries are those permanent injuries not set forth in Ala. Code § 25-5-57(a)(3)a.  The most common non-scheduled injuries are back injuries and those injuries which result in a significant disability to the body as a whole.  Non-scheduled injuries are calculated according to the extent that the injury has reduced the injured employee’s ability to earn income pursuant to Ala. Code § 25-5-57(a)(3)(g).  The extent of disability is most often proved by expert vocational and medical testimony, functional capacity evaluations, the testimony of the injured employee, and the difference between the earnings prior and subsequent to the employee’s injury.  However, if the injured employee returns to work at the same or greater amount of remuneration, no vocational evidence is admissible to prove the extent of disability but instead the court must rely solely upon the extent of physical disability.  If the employee received any weekly Temporary Total Disability or Temporary Partial Disability benefits, the number of weeks paid are subtracted from the total number of Permanent Partial Disability benefits available.  The amount of benefits payable for a non-scheduled Permanent Partial Disability injury is limited by Ala. Code § 25-5-68 to a maximum of 300 weeks and $220.00 per week.  Once the extent of disability is determined, the benefits are calculated by multiplying the percentage of disability by the maximum number of weeks allowed (300) to arrive at the number of weeks payable.  The number of weeks payable is then multiplied by the employee’s weekly benefit or $220.00 whichever is less.

Permanent Total Disability Benefits

            The employee is entitled to Permanent Total Disability benefits if the employee is unable to return to suitable gainful employment, meaning employment of similar kind and of similar remuneration, due to his/her on-the-job injury pursuant to Ala. Code § 25-5-57(a)(4).  Permanent Total Disability benefits are calculated the same way as Temporary Total Disability benefits with the exception that Permanent Total Disability benefits are paid for the remainder of the employee’s life or until such time as the employee returns or is able to return to suitable gainful employment and is determined by the Court to not be Permanently Totally Disabled.  There are no deductions made from Permanent Total Disability benefits for Temporary Total Disability or Temporary Partial Disability benefits which have been paid.

Death Benefits

            The last category of workers’ compensation benefits are Death benefits which are set forth in Ala. Code § 25-5-57(a)(5) and Ala. Code § 25-5-60 through Ala. Code § 25-5-67.  The employer must first pay the expenses of the deceased employee’s burial up to $3,000.  Workers’ compensation Death benefits are calculated according to the number of the deceased employee’s surviving dependents at the time of his or her death.  If the deceased employee has no surviving dependents, the employer must make a lump sum payment of $7,500 to the estate of the deceased employee.  If the deceased employee has one total dependent that person is entitled to 50% of the employee’s average weekly earnings for a maximum of 500 weeks subject to the minimum and maximum limitations of Ala. Code § 25-5-68.  If the deceased employee has more than one total dependent at the time of death, those dependents are entitled to 66 2/3 percent of the employee’s average weekly earnings for a maximum of 500 weeks subject to the minimum and maximum limitations of Ala. Code § 25-5-68.  A partial dependent is also entitled to Death benefits to the extent of the employee’s contribution to the partial dependent’s total income.  The employer also receives a credit for the number of weeks of benefits paid to the employee prior to his/her death.

Present Value

            A common problem practitioners have when dealing with workers’ compensation calculations is that of determining the present value of the employee’s future benefits.  The present value of the employee’s future benefits (Permanent Partial, Permanent Total, and Death) is needed to determine the employee’s attorney’s fees and to calculate the value of a lump sum settlement.  The calculation of the present value of Permanent Total Disability benefits is more complicated than those for Permanent Partial Disability and Death benefits.  The first step in calculating the present value of Permanent Total Disability benefits is to determine the employee’s life expectancy by utilizing the Standard Ordinary Mortality Table which is available from the Alabama Department of Industrial Relations.  The Mortality table is listed in terms of years so a calculation to transfer the figure to weeks will be necessary.  This is done by multiplying the number of years listed in the Mortality Tables by 52.2 weeks.  The life expectancy of the employee in the terms of weeks is then reduced to present value by utilizing the Table of Present Values which is available from the Department of Industrial Relations by finding the employee’s life expectancy in the “Number of Weeks” column.  Then look to the figure listed in the “Present Value of $1.00″ column to the right of the “Number of Weeks” column.  Multiply the figure listed in the “Present Value of $1.00″ column by the employee’s weekly benefit to determine the present value of the employee’s Permanent Total Disability benefits.  To calculate the present value of Permanent Partial Disability or Death benefits, simply locate the number of weeks of benefits payable in the “Number of Weeks” column in the Table of Present Values and locate the figure in the “Present Value of $1.00 column.  Multiply the figure listed in the “Present Value of $1.00″ column by the employee’s weekly benefit (or $220.00 whichever is less) to determine the present value of the employee’s Permanent Partial Disability benefits.

            The practitioner who intends to litigate a workers’ compensation case must become fully aware of the correct way to calculate the benefits which are to be paid.  Those who attempt to calculate workers’ compensation benefits without a complete understanding of the statutes and, more importantly, the case law are almost destined to err on behalf of their clients.  This article does not go into the plethora of exceptions to the rules, combinations of calculations usually necessary, or the case law which interprets, defines, and explains the various types of disability.  Workers’ compensation litigation, like most areas of the legal profession, is becoming increasingly specialized due to the complexity of the Alabama Workers’ Compensation Act and the opinions rendered by our honorable appellate courts.

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