GQ Corner

Q. The injured worker is a substitute teacher who was injured on 4/29/24. She received a light-duty release on 4/30/24 but has the flexibility to choose the days she works for the district. She was scheduled to work as a substitute on 4/30, 5/1, 5/2, 5/8, and 5/9 but had to cancel these dates due to the injury. My question is this: since she selects the days she wants to work for the district, should we only consider these specific dates when calculating lost time, or do we pay from 4/30/24 until she was released to full duty on 5/10/24? I ask because she was not scheduled to work every day for the district, so it seems she only lost wages on the days she was scheduled to work as a substitute teacher.

A. The answer regarding disability is relatively straightforward, but since this involves a school district, the calculation of benefits is more nuanced than with other employers.

First, the WC statue provides: “‘Disability’ means the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.”

Rule 124.7(a) provides a definition for “Day of disability” as “a day when the worker is unable to obtain and retain employment at wages equivalent to the pre-injury wage because of a compensable injury.”

In APD 052804 the Appeals Panel observed that disability is based upon a claimant’s inability to earn the pre-injury wage, not what his duties would have been had he not been injured. Therefore, the fact that co-workers earned less during the claimed disability period was not relevant to the amount of benefits due the claimant. In APD 002671 the Appeals Panel also noted that weekends are used to calculate the accrual date of benefits:

As to the method of computing when the eighth day occurred, we would agree with the carrier’s general argument that weekends or holidays encompassed within a period of “off work” time should be counted. Rule 124.7 makes clear that it is days of “disability” which are cumulated to calculate the eighth day, and not just days of lost work. The fact that a particular employment may not be open for work over the weekend does not obviate “disability.”

Utilizing these principles, if the employee was disabled on the days that she was otherwise scheduled to work, then she would be disabled on the days that she was not scheduled to work.

Therefore, the claimant would be considered “disabled” during the entire period.

However, the disability period doesn’t answer the question of TIBs because TIBs are based on AWW, and for school district employees, the AWW fluctuates weekly. The key here is Section 408.0446(b), which provides: “An insurance carrier may adjust a school district employee’s average weekly wage as often as necessary to reflect the wages the employee reasonably could expect to earn during the period for which temporary income benefits are paid.  In adjusting a school district employee’s average weekly wage under this subsection, the insurance carrier may consider any evidence of the employee’s reasonable expectation of earnings.”

This applies even outside of holidays, and the claimant’s own work schedule is the “any evidence” that can be considered. That is, unlike with every other employer, a school district’s employee’s AWW is a prospective determination and not based upon past earnings.

This means that although the claimant is disabled on a day she was not scheduled to work, her AWW for that week does not include those days. So, for the first week, the AWW is based on what she was supposed to have earned on the three days she was scheduled to work that week. The second week’s AWW would be based on the two days she was scheduled to work.

Thus, the effect is essentially the same as you suggest, except that the accrual date is accelerated. The eighth day of disability is May 7th, and you don’t pay for the first week until there are 15 days of disability. Therefore, you only have to pay TIBs at 70% of the expected earnings for 5/8 and 5/9.

Please feel free to reach out to Roy Leatherberry at rjl@fol.com with any additional questions on this topic.