Work Comp Injury | Temporary Disability

Based on workers' compensation law (Labor Code and case law), you are entitled to 2/3 of your average gross earnings. (There are maximum rates established by the state for people who are "high earners," but generally these maximum weekly "caps" don't apply in most cases.)

Insurance companies often obtain "wage statements" that represent the last 52 weeks of employment. For many, this can be a fair representation of your average weekly earnings. Sometimes a wage statement does not reflect wage increases, cost of living raises, increased hours as a result of the change in market, etc.

Your real earnings are based on "earning capacity." Earning capacity is difficult concept that we'll try to make simple with this statement: your average weekly earnings should be based on what you wyould have made had you not been injured.

Your temporary disability should be based on your average weekly wages which include regular, overtime, or any type of wage that you are accustomed to receiving. If you feel your rate is not based on two-thirds of your normal gross wages, then call us.

- Jason Wells, Attorney At Law

Taking the last 52 weeks from a wage statement (which is common) does not always reflect your true earnings. If you think your earnings are not reflected accurately, then contact an attorney.

You should continue to receive temporary disability until you are permanent and stationary which means that the doctor has indicated you are at "maximum medical improvement." Usually doctors determine this medical status when you are "not getting better" and/or "not getting worse."

In some cases, temporary disability is limited to 104 weeks of paid temporary disability since the injury; the law allows them to limit temporary disability to 104 weeks.

If you are unable to work, then you should apply for State Disability Insurance (SDI) and should contact a Social Security Disability (SSD) attorney.

First, apply for State Disability Insurance by going to the local EDD office and pick up a State Disability Insurance form.

Second, if you are not already receiving Social Security, you should contact a Social Security attorney to determine your rights.

The point is that if you are still injured, unable to work, and not receiving temporary disability, contact us, so we can help.