Tuesday, June 01, 2010

Supreme Court issues decision on AWW

In the Simpson/Bennett cases the Colorado Supreme Court reversed the Court of Appeals to the extent it used the concept of date of disablement to determine a claimant's average weekly wage or AWW by applying a higher maximum rate in effect years later. The wage calculation can be a very important figure that is used to pay out benefits. The higher the calculation the higher the benefits may be. The case reviews the two ways a judge can determine AWW. One way is the statutory way which can involve computing your wage as of the date of injury. Another allows a judge to use his discretion when another way would be more appropriate. For the last year we also dealt with the concept of date of disablement which suggests another approach. Actually most of us in the field realized that the date of disablement concept is unnecessary anyway in most cases. The discretion given a judge is enough to afford him the ability to figure an appropriate wage if he exercises that discretion. Usually your wage at time of injury includes tips and overtime, perhaps room and board and perhaps even the cost of health insurance if it was paid in part by your employer and can be cancelled. Using some other concept seemed to be somewhat confusing but it came because of a prior Supreme Court case called Avalanche. Now the court simply corrected itself although the rest of that prior case still holds that wage calculations may include a subsequent wage if the judge in exercising his discretion decides it is appropriate.

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