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Worker's Compensation And Your Right To "Temporary Total Disability"

Content Provided by Horwitz Horwitz & Associates

A common question we are asked is what is temporary total disability?

Illinois Workers' Compensation Attorney Answer

Under the Workers' Compensation Act you have the right to compensation for periods of time that you cannot work due to your work related injury. This is called temporary total disability ("TTD"). This is a weekly benefit, although many insurance companies prefer to pay it every two weeks (if at all). The weekly amount is 2/3 of your average weekly wage ("AWW"), subject to maximums and minimums. These can be found at http://www.iwcc.il.gov/benefits.htm. Temporary Total Disability, like all benefits under the Workers' Compensation Act, is tax-free. Your average weekly wage is going to require a spreadsheet to calculate correctly, but you can get a good estimate if you work regular hours. Just multiply the number of hours you regularly work each week by your hourly rate. If you regularly work a 50-hour week, and 10 of those hours are paid at time and a half, forget about that extra half you get for the overtime. In fact, stop thinking of it as overtime, since technically overtime is not included in your average weekly wage.

Some case law has indicated that—to be included in your AWW—the hours need to be both regular and mandatory. Mandatory means that if you aren't available to work those 50 (or 60 or whatever) hours each week, you could lose your job. Other cases indicate that it's enough that the hours are worked regularly, but beware. If you say you regularly work a 50-hour week, and there's one week that you worked 49 hours, the courts might say 50 hours isn't a regular week. If you really want to delve headfirst into the average weekly wage and overtime issue, read the Airborne Express case, where the Court states, "Overtime includes those hours in excess of an employee's regular weekly hours of employment that he or she is not required to work as a condition of his or her employment or which are not part of a set number of hours consistently worked each week." If you turn that inside out and upside down, it seems to be saying you can include hours in the average weekly wage calculation if they are either a condition of your employment or part of a set number of hours worked each week. But some people think that "or" is an "and". Go figure.

Let's get back to temporary total disability. The important thing to realize is this; the insurance adjuster will frequently underestimate your temporary total disability rate. (We'll be generous and assume this is done by accident.) So do the math and if you think you're being underpaid, let the adjuster know. A skilled Workers' Compensation attorney will calculate your average weekly wage and make sure you're getting paid the right amount.

In order to be entitled to temporary total disability, you need regularly updated work status slips from your doctor. Your doctor might take you off work completely, or place you on temporary restrictions that prevent performance of your job. In the latter case, your employer might offer you light duty within your restrictions. If you refuse to even try this light duty, your temporary total disability will be cut off. So show up for the light duty job and give it an honest try, as long as it's within your restrictions. If performing the job causes pain, see your doctor and get your restrictions modified accordingly. Make sure both the adjuster and your employer have copies of these restrictions.

Bear in mind that if you're working light duty but earning less than you would normally be earning, you're entitled to a different benefit called temporary partial disability. That's a subject for another article. For now, the important thing to understand is that you are entitled to temporary total disability while you're off work for your work related injury, and you need to make sure it's being paid at the correct rate. If you need any help with these issues, please feel free to contact me.

Mark Weissburg

This article is an excerpt from Mark Weissburg's book, "How to Win a Workers' Compensation Claim in Illinois." The book is available online for free at HorwitzLaw.com or you can pick up a free copy by making an appointment to see a qualified Workers' Compensation attorney at Horwitz, Horwitz & Associates.

Call 866-360-9310 for a FREE consultation today.

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