My Temporary Disability Check Was Reduced Because My Employer Told the Insurance Company I Didn’t Work Full Time Last Year—What Can I Do?

My Temporary Disability Check Was Reduced Because My Employer Told the Insurance Company I Didn’t Work Full Time Last Year—What Can I Do?


You can start by contacting the Law Offices of Marc Francis to review your case with a local Santa Rosa workers comp attorney.

For almost a year, many workers have been struggling to work enough hours to feed their families, pay their bills, and meet other financial obligations. This has proven to be difficult for many workers due in large part to the economic downturn caused by the coronavirus.

One result of reduced work hours for some workers has been that when they suffer a work injury that results in lost time from work the work comp insurance company calculation of the workers’ earnings results in a smaller weekly benefit check.

There are several different ways to calculate your average weekly earnings. Your temporary disability check under California law should be two-thirds of your average weekly earnings, subject to minimum and maximum rates set forth in the Labor Code.

In one recent case involving an agricultural worker, the court observed that “all relevant circumstances,” not only past earning history or actual earnings at the time of injury, should be considered in order to produce a fair result. In that particular case the injured worker’s employer provided only the number of hours worked and the basic hourly rate of pay. Because of less than “full time” hours during the relevant period the worker’s weekly temporary total disability check was less than expected, which produced significant problems for the worker when it came to paying his bills.

As it turned out, part of the injured worker’s pay was based on how much fruit he picked, and the data provided by the employer failed to include that information. The court found that the payroll records provided were not an adequate basis to determine earning capacity, and thus the worker’s correct average weekly earnings, because the evidence did not include information on the worker’s piecework rate of pay. The Labor Code and relevant case law contain several methods of calculating average weekly earnings so as to provide a fair result.

The court ordered further investigation into the matter, noting that “earning capacity is not locked into a straightjacket of the actual earnings of the worker at the time of injury,” rather the inquiry should include all relevant facts to make the estimate of earning capacity including ability to work, age and health, willingness and opportunities to work, among other factors.

In the agricultural worker’s case, he sometimes picked more fruit during fewer hours worked, which could support a higher weekly benefit rate.

In short, it can get complicated! For a free consultation about your weekly benefit rate or other problems with your case, contact the Law Offices of Marc Francis at (707) 664-9675. Our focus will always be your rights.

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