Calculating Lost Wages Benefits

By: Douglas A. Williams

If you are receiving workers’ compensation benefits, you’re likely bringing home less money than you were when you were working. Unfortunately, workers’ compensation is not designed to pay the exact same amount you were earning before your work-related injury. After an injury, the employer or the workers’ compensation insurance carrier calculates the “average weekly wage” or (AWW). This is the average amount that the injured worker was earning at the time of the injury. The injured workers’ compensation rate could be anywhere from 66% – 90% of that AWW depending on how much the worker was earning.

Many injured workers simply assume that the employer or the workers’ compensation insurance carrier has accurately calculated their AWW and compensation rate, but they often make mistakes.

The Workers’ Compensation Act provides for different methods of calculating the AWW based on the manner in which the injured worker’s pay was determined—hourly, salary, or other methods—and how long the injured worker was employed. If the employer or the carrier use the wrong method of calculation, the AWW and corresponding compensation rate may be too low.

Additionally, the employers and/or workers’ compensation insurance carriers are required to include other payments such as the following:

Money received in a profit sharing plan;

Accrued vacation and/or sick pay;

Per diem payments (i.e., payments made to workers who travel to provide money for food and/or lodging);


Supplemental Unemployment Benefits (benefits that are payable under some Collective Bargaining Agreements when a worker receives unemployment), and;

Concurrent employment (money earned from a second job at which the injured worker was employed at the time of the injury).

Employers or insurance carriers often neglect to include benefits such as these in the calculation of the AWW. When this happens, the injured worker receives less than they should in weekly compensation benefits. If you believe that you’re receiving less than you should, call us and we will be happy to review your case. If appropriate, we will file the necessary petition to compel the employer or carrier to pay you the full amount of benefits you earned.

The Personal Comfort Doctrine

By: Sandra Weigel Kokal

The Workers’ Compensation Act states that an injury must occur in the course of employment and be causally related to the job for the injured worker to receive benefits. An injured worker must show they were engaged in the furtherance of the employer’s business when injured. In other words, the worker must be on the job when the injury occurred.

However, an injury can be considered on the job, where the injury occurred during an innocent departure from work within regular working hours. This is what is known as the personal comfort doctrine. The Court has defined this doctrine as follows:

Course of employment embraces intervals of leisure within regular working hours and momentary departures from work do not remove an employee from the course of employment. Breaks which allow an employee to administer to his/her personal comfort better enable the employee to perform the job and are considered to be in the furtherance of employer’s business.

If an employee does not stray from the course of employment for a momentary departure to attend to some “personal comfort” such as using the restroom, etc., the injury is covered.

A recent Pennsylvania case upheld this doctrine where an employee was injured while meeting her mother in another area at work to obtain feminine hygiene products she had forgotten at home. The Court held this was a temporary departure from work to attend to her personal needs so she could continue her shift at work. Workers’ compensation benefits were granted in this case. This is just one example of the personal comfort doctrine; there are many others. If you were injured while attending to a personal comfort you may be entitled to benefits, it is always important to speak with an attorney to discuss the specific facts of your case.


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