Assume a claimant achieves an award of wage loss benefits and then returns to employment that pays less that the average wage earned at the time of the injury. Are benefits payable at all? What is the method for calculating post injury wages if those wages, on average, exceed the average injury wage?
These questions were clarified by the Court of Appeals' opinion in KUZMA v. GREAT LAKES BEV. CO., 2004 Mich. App. LEXIS 1988 which was decided this week.
The importance of the opinion is that when a claimant returns to a lesser paying job, the method for calculating weekly benefits must be made each week. The post injury wages cannot be averaged.
The employer had argued that the claimant is not entitled to ongoing wage loss benefits because he returned to work and his average post injury earnings exceeded his average weekly wage at the time of his injury. The Court of Appeals disagreed and pointed out that the statute is clear: post injury wages must be calculated each week.
Insurance claims representatives and adjusters are therefore encouraged to examine a claimant's post injury wage each week in order to remain in compliance with the law. In the event the claimant has returned to work, the claimant's post injury wages cannot be merely averaged and compared to the injury average. Indeed there maybe certain weeks where the post injury wage exceeds the injury average wage, in which instance no wage loss benefits would be paid. A differential wage loss benefit should be paid however for those weeks where the post injury average does not meet or exceed the injury average weekly wage.