Workers comp benefits are determined by the average weekly wage. The AWW is an important calculation because it determines temporary disability and permanent total disability benefits, subject to statutory maximums. The average weekly wage is determined by the rate in effect as of the employee’s date of injury. Wis. Stat. § 102.03(4).
The date of injury for a traumatic accident is generally self-evident. Problems with later injury manifestation of an earlier traumatic accident usually become a question of notice, statute of limitations and/or causation.
Real difficulty can attend determining an occupational disease date of injury. Wisconsin courts and LIRC have consistently determined the date of disability to be “the first date of wage loss through lost work time attributable to the effects of the occupational disease.” Adams v. Cub Foods, WC Claim No. 91-074342 (LIRC Mar. 31, 1993); see also Royal-Globe Ins. Co. v. DILHR, 82 Wis. 2d 90 (1978).
If there is no missed work wage loss, then the date of injury for occupational diseases is the last day of work for the last employer whose employment caused the disability. Wis. Stat. § 102.01(2)(g)2. Occupational disease claims cannot be apportioned in Wisconsin. Travelers Ins. Co. v. DILHR, 85 Wis. 2d 776 (Ct. App. 1978).
The occupational disease date of injury can be cloudy, especially for employees such as iron workers who regularly work for multiple employers over years. The correct date of injury will impact not only AWW but liability for a particular employer or insurer. Occasionally, there may be separate, distinct periods of occupational exposure. The question becomes whether there was a recovery and a new exposure or if the subsequent exposure is a recurrence of the former exposure. Zurich General Accident & Liability Ins. Co. v Industrial Commision, 203 Wis. 135 (1930).
Once the date of injury is ascertained, the average weekly wage for most full-time employees is determined by comparing two calculations:
First, the employee’s hourly earnings are multiplied by the average hours worked per day; this product is then multiplied by the average days per week. Overtime hours are specifically excluded from a wage calculation unless they are part of the “normal full-time working day as established by the employer.” See Wis. Stat. § 102.11(1)(a).
Secondly, determine the employee’s actual gross earnings in the 52 calendar weeks preceding the injury if the employee has worked during at least 6 weeks of those 52 weeks. Divide the actual gross earnings by the number of weeks in that 52-week period in which the employee earned any wage. This method would account for overtime.
The average weekly wage for workers comp benefits is the higher of these two calculations. See Wis. Stat. § 102.11(1)(d).
McCormick Law Office in Milwaukee, Wisconsin.
