Are Your Benefits Calculated Correctly?
When the adjuster sends you a benefit check if you are out of work due to your work accident, she should also send you a letter telling you how she calculated your average monthly wage (AMW). The AMW is the amount used to calculate your out-of-work compensation benefits and your permanent partial disability award. The higher the AMW, the greater the compensation benefits, and the greater the lump sum PPD award
It is difficult for injured workers to know whether the AMW established by the adjuster for your claim is correct unless you have two pieces of information. First, you need the wage verification form that should have been completed by the employer when requested by the adjuster. That form asks the employer to list all gross income earned for 84 days before the date of your accident. You can ask the adjuster for a copy of the wage verification form and then check the income listed against your paycheck stubs. Remember to look at your gross wages. You should request this form in writing from the adjuster, and always keep a copy whenever you make a request.
Secondly, you need to know what the rules are for calculating AMW. Those rules are contained in NRS 616A.065 (definition of AMW), and in the regulations adopted by the DIR at NAC 616C.420 -NAC 616C.447. Ordinarily, the insurer will calculate AMW by going back 84 days before the date of the accident and by averaging those gross earnings. However, if the claimant thinks that he earned more during a year with the same employer, he can ask the adjuster to look at AMW using his one year earnings history, or his full period of employment . The adjuster is obligated to use the highest AMW resulting from the use of those two methods.
There are several other regulations that address different circumstances where calculating AMW using the two most typical methods will not be a fair representation of the injured worker's average monthly wage. The Nevada Supreme Court just published a new opinion that discusses the regulations that provides that the rate of pay on the date of the accident or the onset of the disease should be used to calculate the average monthly wage where the employee is promoted to a different job just before the accident. In City of North Las Vegas v. Warburton, 127 Nev. Adv. Op. No. 62 (October 5, 2011), a pool lifeguard had just been promoted to pool manager when she was injured at work. She hadn't actually received higher wages based on her new rate of pay yet. The Court held that her benefits should have been calculated using the rate of pay for the primary job she was working when she was hurt, and that would have been the pool manager position.
If you just changed jobs with the same employer or had just gotten a raise, then you will want to look closely at how the adjuster calculated your average monthly wage. Keep in mind that there is a maximum average monthly wage that is set by the state each fiscal year, beginning on July 1 annually. When the adjuster sends a determination letter setting your AMW, usually at the beginning of the claim, you are given 70 days from the date of that letter to file an appeal (Request for Hearing form with the Department of Administration.) Even if you did not file an appeal within 70 days of the date of that letter, you may still have the right to contest the AMW if you think that your average monthly wage should be increased. You may then be entitled to additional retroactive benefits based on the higher AMW, and your PPD award will be greater.
Effective July 1, 1970, the law (NRS 616C.427), allows an injured worker to contest the AMW determination even after the 70 days has run if the claim is still open and the injured worker hasn't received a lump sum PPD award yet. If you had unusual employment circumstances and you think your AMW was calculated too low, before your claim is closed and before you are rated for impairment, ask a knowledgeable Nevada workers' compensation attorney to please review your AMW calculation with you. The sooner the AMW is corrected, the better.
Mileage Reimbursement Rates and Maximum Average Monthly Wage for Nevada Workers' Comp Claims
There's good news and bad news. The good news is that effective July 1, 2011, the mileage reimbursement rate for using your car to go to and from doctors and physical therapists visits increased from 51 cents per mile to 55.5 cents per mile. Injured workers must have traveled more than 20 miles one way for medical care, or alternatively, have traveled a total of 40 miles or more during a week time period to qualify for reimbursement. (NAC 616C.150.) Use a mileage reimbursement form to send to your adjuster (or forward it to my office if you are already a client and we will take care of it for you). Don't wait until the end of your claim to turn in these forms. They must be sent in within 60 days of your qualifying trips.
The bad news for injured workers is that the state's maximum average monthly wage for injuries occuring after July 1, 2011 has been decreased slightly again for the second year in a row. This is the figure that is used to calculate lost time compensation benefits and the permanent partial disabilit award. The most an injured worker can collect for being disabled each month on new claims is $3,434.38. That means that if an injured worker is making high wages at the time of her accident after July 1, 2011, she will get far less than 2/3 of her average monthly wage if she is off work and entitled to temporary total disability benefits. Her final award for a permanent impairment will be less also.
Tip If you aren't receiving maximum compensation benefits, but think you should be, take advantage of a free consultation with an attorney to review the average monthly wage calculation on your claim. You must do this before you accept a PPD award.
There's Still Time To Question The Average Monthly Wage Calculation
Before you get rated for impairment at the end of your claim, you want t
o make sure that the award offered will be based on the right average monthly wage (AMW). Your AMW is one of the three factors that the insurer must use in determining how much money your percentage of impairment will be for you. The third factor is your age.
Your average monthly wage is calculated a number of ways, all of which use a period of earnings before the date of your Nevada work accident. Any days you were unemployed or took leave without pay will work against you and will decrease your AMW. Any unemployment benefits you received during that period will not be added in to boost your earnings.
If you have a workers’ comp claim and think that the insurer is using an average monthly wage figure that is too low, you can ask your adjuster for a copy of the wage verification form the employer gave the adjuster. That form should show your earnings for 84 days just before you were hurt. (There are other rules applicable if you didn’t work 84 days before you were hurt.) If you see that there is a period where you had no earnings, you may qualify to have days without income excluded. Ask your employer or your adjuster to help document why you had no earnings if you don’t remember the reason.
The law now allows an injured worker to question how the adjuster calculated average monthly wage so long as the claim is still open and the worker hasn’t accepted a final PPD award yet. NRS 616C.427 is a recent law, added in 2009, and some adjusters aren’t aware of it. If an adjuster tells you that you failed to file an appeal within 70 days from the date the adjuster first sent a letter with your established average monthly wage calculation, you may nonetheless still have time to question the AMW calculation.
An injured worker may also request that a one year earning history be used if that would result in a higher average monthly wage than the usual 84-day earnings history. The regulations that the adjuster must follow in calculating average monthly wage are at NAC 616C.420- 616C.447.
