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Temporary Total Disability Benefits
Temporary total disability (TTD) is a type of benefit available to injured workers during the period of time they are recovering from a workplace injury or occupational illness before returning to work. Under Colorado law, workers entitled to TTD will receive two-thirds of their average weekly wage during the time they are unable to work. The amount of TTD benefits a worker may receive each week is capped at a maximum based on the state's average weekly wage, which is set each year on July 1 by the director of the Division of Workers' Compensation. For 2008, the state's average weekly wage is $863.93. Thus, if a worker's average weekly wage is $900.00, the most the worker will receive is $863.93.
The worker's average weekly wage is determined based on the date of the injury, or in cases of occupational illness, the date the worker developed the disability. The date of the injury can make all the difference in the amount of TTD benefits a worker ultimately will receive and, thus, can be a highly contested issue, particularly if the worker has suffered multiple injuries, has pre-existing conditions from an earlier injury or suffers from an occupational disease.
Calculating Average Weekly Wage
In order to establish the weekly amount of TTD benefits a worker will receive, it must be determined how much the worker made weekly at the time of the injury. This task is easiest if the worker is paid on a weekly basis. Since not all workers are paid on a weekly basis, however, Colorado §8-42-102(2) provides formulas to determine the average weekly wage.
- For workers paid monthly, the monthly wage at the time of the accident is multiplied by 12 and divided by 52.
- For workers paid on a per diem basis, the daily wage is multiplied by the number of days and fractions of days in the week in which the worker was injured. In this calculation, the number of days the worker would have worked had he or she not been injured also should be included in determining the average weekly wage.
- For workers paid hourly, the hourly rate is multiplied by the number of hours in a day the employee actually worked at the time he or she was injured, or would have worked had he or she not been injured. This number is then multiplied by the number of days and fractions of days the worker worked or would have worked in the week.
- For workers paid based on piecework, tonnage, commission or some other basis, the total amount of wages earned by the worker in the 12 months before the injury is divided by the number of pay periods the worker was employed during that time.
- For workers paid by the mile, the rate per mile is multiplied by the average number of miles per day the worker drove within the 60 working days before the date of the injury. This daily rate is then used to calculate the weekly rate.
If the worker is employed by more than one employer at the time of injury, the wages from both employers are used to determine the average weekly wage. If a worker's average weekly wage cannot be determined by using one of these formulas, the allows administrative judges to set the amount. In some instances, this may include looking back beyond the time frame of the worker's injury to determine the average weekly wage. In other cases, judges have set the amount based on the wages the worker earned with a subsequent employer after the injury occurred.
In fact, a recent Colorado Supreme Court decision may shed some light on the broad discretion administrative law judges have in making equitable determinations of average weekly wage. In Avalanche Industries v. Clark, the injured worker started a new job after her injury at Avalanche Industries. Two years later, she reopened her claim due to a worsening physical condition, and her physician concluded that she was no longer able to work. The administrative law judge used his discretion to apply Ms. Clark's current, higher wages to his average weekly wage calculation, rather than her wages at Avalanche, where she was initially injured. The Colorado Supreme Court upheld this determination.
Wages are not the only figure used to calculate a worker's average weekly wage. Benefits also may be included in the calculation. Generally, for the benefits to be included there must be a determinable current cash value for the benefit. Per diem amounts normally will not be included, unless they are reportable for federal income tax purposes.
Some of the types of benefits that may be included in a worker's average weekly wage include:
- Rent, housing, lodging
- Wage dividends
- Health insurance
- Dental insurance
Overtime compensation also may be used in calculating the average weekly wage. Overtime is sometimes overlooked by insurance carriers.
Typically, employer contributions to non-vested retirement accounts and pensions are not included in the average weekly wage. Likewise, FICA tax payments made by an employer also are not included. Determining the correct amount of a worker's average weekly wage can be a complex process. It is not only necessary to determine the correct time period for calculating the weekly wage, but it is also essential to include the worker's applicable benefits. Otherwise, a worker will not receive the full, fair amount of TTD benefits that he or she is entitled to under Colorado law. An administrative law judge has broad discretion in determining average weekly wage.