Does L&I have to consider unemployment wages when figuring my monthly amount on a disability claim they base it on a years inc.

Q: my thumb joints are gone the independent med examiner states I cant go back to work at my old job and the specialist says if I do surgery I lose 80 % of my grip . im 58.5 yrs old and they want to close my claim and send me to unemployment to do retail sales which I have never done

A: Your time loss compensation rate is based upon your wages from all employment at the time of injury for industrial injury claims or alternatively as of the date of manifestation for occupational disease claims. Your marital and dependent status are also factors. The Department can only conduct a twelve month averaging of your wages to arrive at a monthly figure if your relationship to employment was intermittent, part-time, or exclusively seasonal. In my experience, the Department, especially in cases of blue collar workers, will often attempt to allege intermittent or seasonal employment when the facts and case law establish otherwise. Be sure to carefully review any wage order that has been issued and protect your rights by protesting or appealing it within sixty days of its receipt.

In order for L&I to close your claim, you must be at maximum medical improvement and you must be found able to work at gainful employment matching your employment pattern at the time of injury. Unfortunately, gainful employment is defined as at least minimum wage. Even though the vocational benefits potentially available to you have greatly improved over the past several years, L&I will still often try to retrain you in essentially unskilled work, such as retail sales, customer service, or telephone solication. If L&I is attempting to do so in your case, I strongly encourage you to dispute the vocational recommendation, which you have only fifteen days to submit.

Finally, since you have no intent of returning to work as a retail salesperson, the vocational counselor may attempt to persuade you to take Option 2 benefits. In cases where we want to appeal the closure of a claim and argue that the claimant is not able to work or otherwise employable, taking Option 2 will severely restrict your issues on appeal and should be very carefully scrutinized.

The potential closure of your claim raises many issues. Many attorneys who practice in this area will agree to review your claim for free prior to representation. I strongly encourage you to contact one. Good luck.