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Law Offices of Jeremy K. Lusk, Inc.

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When calculating workers’ compensation benefits (temporary disability and permanent disability), the employee’s actual earnings are used to calculate the average weekly earnings.  This figure is then used to calculate both the temporary and permanent disability rates. 

But, what if your work is part time, or where an average weekly earnings cannot reasonably and fairly be applied?  Under Labor Code section 4453(c)(4) the average weekly earnings shall be taken at 100% of the sum that reasonably represents the average earning capacity at the time of your injury, with consideration being given to actual earnings from all sources and employments.

For example, after being laid off after working full time you are forced to work sporadically or at a lower wage.  During this sporadic period of earning a lower wage you sustain a work related injury.  The computation of your average weekly earnings due to the sporadic periods at a lower wage does not adequately reflect the average week earnings.  During this period, one must be able and willing to work.  The Labor Code permits the trier-of-fact to consider your prior work history and other relevant information in determining ones earning capacity. 

If you have a history of steady employment and then due to circumstances beyond one’s control have sporadic employment at a lower wage, the use of earning capacity can be used to calculate the correct average weekly earnings. 

If you have any questions about your workers’ compensation case and want to talk to an attorney in Fresno, call (559) 408-7436 or fill out the form to the right. 

How does earning capacity affect workers' comp benefits?