Thursday, March 19, 2009

Antartica in Colorado workers comp case!

Decided on March 19, 2009 the Iler case involved a claimant hurt in Antartica. He sought to add the value of his room and board to the wage calculations by comparing it to his room/board in Colorado. So how do you calculate its value in Antartica? The judge felt he couldn't and the claimant appealed. The next level up in an appeal is called an ICAP decision. The Industrial Claim Appeals Panel decides at this stage. In his case they agreed with the Judge. The next appeal is to the Court of Appeals and here the claimant succeeded in getting his case remanded back down to the Judge to assess a reasonable value and add it to the calculations. Read the Iler case here. It is always in the best interests of a claimant to have a high average weekly wage. This figure is often used in determining the amounts of temporary and permanent benefits you are entitled to receive. The most common increase comes when they forget to add your overtime. Also they should add your health coverage if you are going to lose it through your employer. But also as is the case here an employer provides you with room and board. It may be part of your wage package so it too can be added. The Colorado statutory definition of what is your average weekly wage is as follows at 8-40-201:

(19) (a) "Wages" shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the injury, either express or implied.

(b) The term "wages" shall include the amount of the employee's cost of continuing the employer's group health insurance plan and, upon termination of the continuation, the employee's cost of conversion to a similar or lesser insurance plan, and gratuities reported to the federal internal revenue service by or for the worker for purposes of filing federal income tax returns and the reasonable value of board, rent, housing, and lodging received from the employer, the reasonable value of which shall be fixed and determined from the facts by the division in each particular case, but shall not include any similar advantage or fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the employer continues to pay any advantage or fringe benefit specifically enumerated in this subsection (19), including the cost of health insurance coverage or the cost of the conversion of such health insurance coverage, such advantage or benefit shall not be included in the determination of the employee's wages so long as the employer continues to make such payment.

(c) No per diem payment shall be considered wages under this subsection (19) unless it is also considered wages for federal income tax purposes.

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