Will my Overtime Pay Be Included in my Workers’ Compensation Claim?

One of the most important elements in any workers’ compensation claim is the injured employee’s average weekly wage (AWW).  The higher the employee’s AWW, the higher the applicable benefit rates will be for related payments such as total temporary disability benefits (TTD) or permanent partial disability benefits (PPD).  For this reason, inevitably, a frequent and crucial question from injured workers is whether their overtime pay will be included when calculating their AWW.  The answer will depend upon the facts and circumstances of each individual claim.

Section 10 of the Workers’ Compensation Act addresses how to calculate an employee’s average weekly wage.  According to the statute, AWW is based upon the actual earnings of the employee excluding overtime.  However, reviewing courts have interpreted the statute to allow for the inclusion of overtime hours if those hours are mandatory and consistently worked each week.  So, despite what insurance adjusters and employers may tell you, it is possible to include overtime pay when calculating an employee’s AWW.  However, when overtime hours qualify to be added to calculate the AWW, it is added at straight pay and not time and a half.      

Although the inclusion of overtime hours is almost always disputed by insurance companies and employers, it can and often is included when calculating the AWW.  This can result in increasing related benefits by thousands of dollars for injured workers.  If you believe the insurance company is wrongfully withholding your proper benefits, you should contact an experienced attorney at Eames Law Group, Ltd. for a free consultation.   The content of this blog is intended for informational purposes only and does constitute or establish an attorney-client relationship, nor constitute legal advice. If you wish to discuss any further aspect of the material contained herein, please contact Eames Law Group, Ltd.