Common Adjusting Mistakes, Part 5: Earnings

Saturday, October 25, 2003 | 0

This is the final article in this series of common adjusting mistakes, this time on failure to present evidence of earnings when presenting a settlement with an in pro per applicant for approval. We have reviewed CT disputes, failure to adjust TD, improper use of LC 4050 and failure to authorize a second change of treating physician request. This brief article will look at failure to provide evidence of earnings when settling with an unrepresented applicant.

Workers' compensation judges are charged with the duty of using utmost scrutiny when an in pro per applicant is settling a case. The presumption is that the unrepresented applicant is not as sophisticated as the insurance company representative, and the legislative mandate that the Code and Regulations be liberally construed in favor of the injured worker. For that reason, the judge will look at the settlement in fine detail, and will demand support for essential facts that comprise the settlement.

One of the essential facts that require particular attention is the earnings of the applicant at the time of the injury in order to ensure that the appropriate benefit rate has been adhered to. This is particularly important of late as AB 749 of 2002 increases indemnity rates every year through 2006 when automatic adjustments occur according to the State Average Weekly Wage.

It is not difficult to provide supporting documentation of wages, it is just something that even experience claims examiners and attorneys forget to do. This becomes particularly important when the settlement documents indicate that an injured worker's wages are less than maximum. Typically the judge, in such a situation, will set the matter for adequacy so that evidence of the injured workers' wages can be made a part of the Board file as evidence so that a settlement does not later get overturned on adequacy grounds.

Make your life, the judge's life and the injured worker's life easier from the outset by ensuring that a verified wage statement is in the Board file by the time settlement papers are presented for approval. If you have an uncooperative employer, then some alternative evidence will need to be presented, but nevertheless, some form of verified documentary evidence will go a long ways towards an expeditious settlement approval.