Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s Burning Question: We have an employee who was injured in 1995 and needed surgery on his hip at that time. He just recently went in for a complete hip replacement. The city is not contesting that the second surgery relates to the original injury. The question is should he be paid at his compensation rate when he was originally injured in 1995 because that is when the injury occurred, or the rate he currently makes?
Answer: Well, I originally thought this would be a simple question with a simple answer…. but no… This has to be one of those “its depends” answers that I hate but so often have to give.
First of all, I am not a workers comp specialist. Let that be known and I would encourage any comp lawyers out there to offer their considered opinions.
Second – not all firefighters fall under workers comp for work related injury coverage, and those that do need to keep in mind that comp law will vary greatly from state to state.
Under workers comp law (governed by state law) the critical date for determining the compensation rate of an injured employee will either be the date of injury or the date of disability. In most cases they are one in the same but on occasion (like here) they are not. States differ in how they handle a case like this with some looking to the date of disability (ie. his wages today in 2013 … IMHO the wiser rule) and some looking to the date of injury (1995 … probably implemented by the pre-Christmas Eve Scrooge).
If your state looks to the date of disability, then the simple answer is they will look at his wages as they currently are (most likely averaged over the last 52 weeks he worked).
If your state looks to the date of injury, it would potentially be the average of the 52 weeks prior to the injury… BUT…all hope is not lost. Take a look at this indepth article on determining compensation rates in North Carolina. It will give you a flavor for just how many issues come into play… and how complicated a final answer will be.
For those not inclined to dig into the article – NC is a date of injury state – and the author cites at least five different methods for determining the appropriate compensation rate, most notably:
Method #5: If “exceptional circumstances” exist that would make application of
Methods #1, #2, #3, or #4 unfair, either to the injured worker or the employer, then some other method that would as nearly as possible approximate what the injured worker would have been earning but for the injury may be used.
Thus, even in a state that uses the date of injury to calculate the comp rate, there may be a way to ensure the firefighter is fairly compensated. The bottom line – get your injured firefighter a good comp lawyer ASAP!!!
One last followup question… are you sure the most recent hip injury wasn’t due to an all new work related injury?
