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Zachary
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3928
Experience:  Contracts, Wrongful termination and discrimination
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I was injured at work on april 25th, 2013 with a back injury.

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I was injured at work on april 25th, 2013 with a back injury. Injury happened at 6:55am and was not taken to the companies dr until like 4 hours after. Company dr sent me back to work saying i had lumbar sprain.Went back to work, and the pain was extreme that I had to take the rest of the day off to go get my medication prescribed. During the night my situation got worse to the point where i could not move and i was constantly screaming and no sleep whatsoever. I let my employer now that i was worse and i was not able to go. That friday i went to the company dr for the appoinment and again, i was sent back to work, eve though they had to strap me down and help out the clinic to get in my car. This took minutes to do because I could hardly move on my own. Next, i decided to go to my chiropracter for help, because obviously they weren't doing anything for me. The chiropracter diagnosed me with lumbar disc syndrome, radiculopathy, antalgic gait, and muscle spasms, and he took me off of work and driving. It was obvious there was no way for me to go to work when even in bed, i was in so much pain! I took the letter to work and they said it was ok to be off of work. I still kept going to the company drs appoinments. Finally after 10 days i got changed to my own treating doctor(chiropractor). Up until this date i have not received any pay and i missed days of work. Before the injury i was working 7 days a week with overtime. My last pay check was 905.30 pre-tax and i just noticed that on the first respond of injury my employer submitted that wage was 440 5 days 8 hours! Isn't this wrong? Shouldnt my overtime be calculated in and the wage should be what i was making before injury? I asked the hr person who submitted the report and she says that, that is for future purposes, meaning what i will be making after the injury date. Is she correct on this? She also put the wrong thing on the type of injury, and she put that i had no loss time, and i didnt even go to work after the injury for over a week. She also checked that full pay was given for the date of injury, but my check doesn't reflect that!
Is my employer breaking the laws and avoiding for me to get my benefits? Thanks a lot. I have returned now to work starting on may 6. and i should have worked those 10 days in between.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question and I'm sorry to hear about your situation.

Can you tell me what state you are in?

Also, you need to look at your wages over a longer period of time, not just the preceding week. How long had you been working 7 days a week?
Customer: replied 1 year ago.

texas

Customer: replied 1 year ago.

since when i started working there for almost 3 years. I usually work the 7 days. there is some times here and there we have a sunday or saturday off

Expert:  Zachary replied 1 year ago.
Thank you for your response.

You HR person is incorrect.

In Texas, your income benefits in a workers comp. claim are based on your average weekly wage. To calculate your average weekly wage, add your earnings for the 13 weeks prior to the injury including any overtime or other special pay and any non-pecuniary wages the employer does not continue after your injury and divide by 13.

So to check and see if your employer was correct, you will need to get the 13 weeks of pay stubs and figure this out.

If after you figure this out, the number your employer reported is incorrect, then you need to file a claim with the Texas Workerforce Commission for workers compensation benefits. The claim will state that the employer is not paying what you are rightly owed. The state will assign an ombudsman to you and will assist you with the claim.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Customer: replied 1 year ago.

I understand that it is an average of the 13 weeks before. she says that the 440 she put on the report was, what he will be getting paid after the injury (work pay, if i make sense, not workers benefit) So she is not accepting that what she put there was the average of he's wages.

Expert:  Zachary replied 1 year ago.
Oh, I see.

Here is an example of the form we are talking about: http://www.tdi.texas.gov/forms/dwc/dwc001rpt.pdf

Is this the form she used? If so, are you referring to what she reported in Line 36?
Customer: replied 1 year ago.

yes that is the form and you are correct

Expert:  Zachary replied 1 year ago.
OK. She is correct that she is only supposed to put down the regular amount of pay not counting over time in that spot.

The thing you need to do is to check that the benefits you are being paid are calculated correctly. In other words, you need to ensure that the average weekly wage calculation is correct.

So, if you were not able to work at all, then you would take the average weekly wage (13 week average) and multiply it by .7 to get what your benefits would be. For example, lets say the average weekly wage is $1,000. You would thus be receiving income benefits of $700.

You know your income benefits are not being correctly calculated by your employer if you are receiving an amount that does not reflect what your true average weekly wage is.

If that is the case, then you need to proceed with filing the claim with TWC.
Customer: replied 1 year ago.

What do I have to do, to receive the benefits? Injury was on the 25th. i stopped going half of that day and i finally started back on monday with restrictions and less hours then before injury. Do I have to submit paperwork or does it take this long?

Expert:  Zachary replied 1 year ago.
The fact that you are returning to work at a reduced amount of wages means that you are still entitled to receive income benefits based on the difference.

So for example, you return to work now and are only making $400 a week, but prior to the injury were making $1000 per week. Now, your income benefits would be based on the amount of wages you are losing ($1000-$400=$600). You take the $600 and multiply by .7 to get your benefits that should be payable.

So, you should start seeing benefits this week for the missed days, and if you are on a restricted work schedule because of your injury, then you should receive a supplemental amount of benefits based on that difference.

You should probably just go ahead and file a claim with the TWC to ensure that your rights are protected and that there is oversight over your employer to make sure that the correct benefits are paid.
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3928
Experience: Contracts, Wrongful termination and discrimination
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Customer: replied 1 year ago.

and by that you mean to file the employee's claim for compensation for a work-related injury> or is it a different claim?

Expert:  Zachary replied 1 year ago.
No. That's the one!
Expert:  Zachary replied 1 year ago.
Please let me know if you have any further question.

Please also do not forget to rate my answer positively. I'm not paid at all until you do (the website keeps all your money).

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