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Transcript of Seasonal Employees
What is a Seasonal Employee?
How to calculate the Average Weekly Wage (AWW) for a Seasonal Employee
The Pitfalls of Concurrent Employment
What happens when Seasonal Employment Ends?
Compared to Termination for Cause
2015 Lunch and Learn with Lee + Kinder, LLC
Where the employee is being paid by the month for services, the AWW shall be determined by multiplying the monthly wage or salary at the time of the accident by twelve and dividing by fifty-two.
C.R.S. § 8-42-102
Where the employee is being paid by the week for services, the weekly pay at the time of the injury shall be deemed to be the AWW.
C.R.S. § 8-42-102
Where the employee is rendering service on a per diem basis, the weekly wage shall be determined by multiplying the daily wage by the number of days
of days the employee worked per week at the time of the injury.
C.R.S. § 8-42-102 (West)
Where the employee is being paid by the hour, the AWW shall be determined by multiplying the hourly rate by the number of hours in a day the employee normally worked at the time of the injury; then multiply the daily wage by the number of days the employee normally worked per week
C.R.S. § 8-42-102 (West)
The Division and ALJs have discretion to compute the AWW by any another means in order to fairly determine the AWW.
Skipping a period of wages because an illness reduced the employee's normal pay
Using a shorter period of wages because the employee received a raise before the date of injury
Usually does not continue year-round
Temporary and short-term work
Many positions are only necessary during certain times of year, so workers will only be employed during that time.
Ski lift operators
Summer Camp counselors
At the time of the injury, Alice was earning $800 per month.
$800 x 12 (months) = $9,600 per year
$9,600 ÷ 52 (weeks) = $184.62 per week
Alice's AWW is $184.62.
Mark was being paid $100 per week for services at the time of the injury.
Mark's AWW is $100.
Based on the prior wage records, Wes worked an average of 3 1/2 days per week at the time of the injury. Wes was paid $100 at the end of each day.
$100 x 3.5 (days per week) = $350
Wes' AWW is $350.
At the time of the injury, Zach was being paid $10 per hour. According to the prior wage records, Zach worked an average of 8 hours per day and 5 days per week.
$10 x 8 hours = $80 per day
$80 x 5 days = $400 per week
Zach's AWW is $400.
The Division and the ALJ have discretion to include the wages earned from any concurrent employment that was held by the employee at the time of the injury as part of the AWW. This is based on the idea that an injury impairs a Claimant's ability to earn from all employment and it would be "fair" to include all such wages in the computation of the AWW.
St. Mary's Church & Mission v. Industrial Commission
, 735 P.2d 902 (Colo. App. 1986).
Victoria works 4 days a week for Employer A as a ski lift operator and 3 days a week as a waitress for Employer B. She injures her back when a chair lift hits her. As a result, she is unable to work.
Victoria earned $450 per week from Employer A and $300 per week from Employer B.
Victoria's AWW is $750. ($450 + $300)
Victoria is entitled to $500 per week in TTD benefits until she is placed at MMI or is able to return to work for either of the employers.
$750 (AWW) x 2/3 = $500 TTD rate
The Colorado Court of Appeals held that the end of seasonal employment does not automatically preclude an employee from receiving disability benefits.
City of Aurora v. Dortch, 7
99 P.2d 461, 463 (Colo. App. 1990)
Kim is hired as a holiday sales associate to help with holiday crowds from November 15, 2014 through January 15, 2015.
On January 10, 2015, Kim slips and injures her knee while putting up store decorations.
Kim's doctor gives her work restrictions of no standing and the employer cannot accommodate the restrictions. Thus, Kim starts receiving weekly TTD benefits.
Despite the fact that Kim had no expectation of continuing her employment past January 15, 2015, the employer
stop her TTD payments based on the end of her seasonal employment!
Before reaching MMI, Victoria is able to return to work 5 days per week earning $500 as a waitress for Employer B. She is still unable to return to work as a chair lift operator for Employer A.
Victoria is now entitled to TPD benefits in the amount of $166.67 per week.
$750 (AWW) - $500 (post-injury AWW) = $250
$250 x 2/3 = $166.67
The question is whether the employee was
for his/her loss of employment or reduced earnings and whether the employee's work injury caused or contributed to his/her reduced earnings.
Disability benefits cannot be terminated based on the end of seasonal employment alone.
Termination for Cause:
Termination of temporary disability benefits can occur if the claimant is
for termination of the employment regardless of whether it is regular or modified employment.
To be "responsible" for termination, the employee must have engaged in a volitional act or exercised some control over the circumstances that led to the termination.
Termination of temporary disability benefits is also appropriate if the separation for employment was voluntary.
Examples of actions that may cut off benefits:
Examples of actions that will not cut off benefits:
An employee is fired for stealing.
An employee is fired for violating a drug policy.
An employee is fired for tardiness.
An employee is fired for insubordination.
An employee is fired for poor work performance.
An employee voluntarily resigns.
End of seasonal employment
Company lay offs
Company closure due to economic factors
However, in some cases termination may not sever the causal connection between the injury and the subsequent wage loss.
If a worsening of the employee's injury or an increase in work restrictions causes the wage loss, temporary disability benefits are payable even if the termination from employment was voluntary or for cause.
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Navigating the Act and the Rules of Procedure while understanding the effects of interpretive case law can be complex.