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Do you have a really low workers comp weekly pay rate, raise it with the application of special circumstances

Workers' Compensation

How Your Average Weekly Wage Is Calculated

Probably one of the most questions that injured workers ask me is, “I was making so-and-so amount of money before I got injured, in fact I was supposed to get a raise, so why are my weekly workers comp pay checks so low ? ” 

There are two factors that confound folks when it comes to the workers comp weekly pay: 1.) how your weekly pay, or average weekly wage, is calculated; and the 2.) rate that the BWC pays the average weekly wage. What the BWC will do is take sum of all the money you have earned from the date of injury, going back a year, They will then divide this sum by the number of weeks in a year and divide by 52 to arrive at your AWW or averate weekly wage. Then you will be paid 66 2/3 % of your AWW each week. This forumla is laid out in Ohio Revised Code 4123.61 which you can read here:

Look at this example to better see how this works: 

  • John gets injured on October 23, 2023, so the period of time we will be collecting wages from is October 23, 2022 through October 23, 2023
  • From October 23, 2022 through December 31, 2022, John worked at Amazon. He received a 2022 W2 which showed he earned $8000
  • From January 1, 2023 through October 23, 2023, John worked at Fed Ex where his foot was crushed by a forklift. He produce paystubs for this time period. Totaling these pay stubs produces a sum of $24000. 
  • John’s AWW or average weekly wage would be: ( $ 8000 + $ 24000 ) divided by 52, or $ 615.38
  • Therefore for each week that John is on temporary total disability compensation he would recive 66 2/3 % of 615.38, or $ 410.46

With this example you can see how important it is to raise your AWW as high as possible. Because you are not going to receive 100 % of your AWW but rather 66 2/3 %. The only silver lining in this deal, if there is any, is that you pay no taxes on temporary total disability compensation.

What If You Did Not Work Much In the Year Leading Up to Your Date of Injury

Okay using the general forumala above is fine for everyone who worked in the year preceding their injury, but what happens if you did not work the entire year leading up to the date of your injury. What happens if you were unemployed, returned back to work for a month, then suffered a work injury ?

To illustrate lets look at another example:

  • Steve started working at Amazon on October 1, 2023
  • Steve’s suffered a crush injury to the foot at Amazon on October 23, 2023
  • From October 23, 2022 through September 30, 2023 Steve earned no wages because he was taking care of his sick mother
  • From October 1, 2023 through October 23, 2023, Steve earned a total of $ 2500

If we go off the general AWW formular, Steve’s AWW would be $ 48.08 ($ 2500 / 52). Each week Steve was on temporary total disability he would be paid $ 32.07. This is absolutely untenable. Steve would be better off sellign his kidneys, or begging on the street. But this Ohio Workers Comp law, what you need to do is get yourself a competent Columbus workers compensation attorney.

Apply the Special Cirumstances Rule to Raise your AWW 

There’s a rule in Ohio Workers Comp called the “Special Circumstances Exception” to the standard AWW formula in R.C. 4123.61 which presents two quesions: 

  1. did the claimant demonstrate “special circumstances” so as to warrant a departure from the standard AWW formula, and if so
  2. is the current AWW substantially just.

Ohio Court’s have determined that the closeness in time from the injured workers reentry into the workforce and his work injury date, may constitute a “special circumstance” under 4123.61. In which case the Industrial Commission may use an alternate formula to determine your AWW. 

How would this actually play out. Steve’s attorney would file a motion to have his AWW raised based upon the “special circumstance” exception in 4123.61. Assuming the BWC issued an order denying this motion, Steve’s attorney would file an appeal to the BWC order. The motion would then be referred to the Ohio Industrial Commission. It would be heard before a District Hearing Officer in a DHO hearing. Steve’s attorney would argue the following: 

  • Steve had recently entered the workforce, the special circumstances exception applies justifying an alternate calculation
  • The weeks in the period, October 22, 2022 through September 30, 2023 should be excluded from the AWW wage calculate. These are the weeks in the snapshot period Steve did not work. in total, 49 weeks
  • Instead of dividing the wages Steve earned from October 1, 2023 through October 23, 2023 by 52, these wages should be divided by 3. 
  • So the AWW should be $ 833.33 ( $ 2500 / 3), rather than $ 48.08 ($ 2500/52)

Much better result wouldn’t  you agree. 

This exact scenario played out in the 2022 10th District case, State ex re. Huntington Bancshares Inc. v. Berry. 2022-Ohio-531 

Ohio Workers Compensation Lawyer Kip Malek has made a video discussing the Bancshares case on youtube,  which you can find here: