ICL Wins Trial on Temporary Disability and Earning Capacity for Union Construction Worker – Labor Code 4453(c)(4)

In a recent trial, Injury Compensation Law Attorneys won against defendant on the issues of temporary disability and earning capacity for an injured union construction worker.

In this case, defendant had previously obtained a court order that the applicant’s average weekly wage was $290.76 based on just under 2 weeks (9 days) of wages prior to injury.  The applicant had just started working at the construction employer when he sustained injury to the back and elbow due to an incident.

Unfortunately defendant obtained that rate with incorrect calculations of days and hours worked, and refused to acknowledge earning capacity calculations based on Labor Code 4453(c)(4) where the applicant worked for less than 30 hours per week.  The Judge set aside the prior order under Labor Code 5803 for good cause, including the fact that Applicant’s prior attorney improperly sent a hearing representative instead of a attorney on the day of trial.

Using the Applicant’s Sheet Metal Union 60% journeyman membership documents and prior employment, Injury Compensation Law was able to prove his actual earning capacity under Labor Code 4453(c)(4) was $1,062.80 per week.  This resulted in significant increase in temporary disability benefits for the union worker awaiting surgery, as well as back-pay of over $20,000+ in benefits owed by the insurance carrier.  The court provided excellent analysis of 4453(c)(4) including reference to California Supreme Court case Argonaut Insurance Company v. Industrial Accident Commission (1962) 57 Cal. 2d 589, 594 [27 Cal. Comp. Cases 130, 133].

In a comment to bLAWg.blog, Attorney and Founding Partner J. Grant McCreary said: “This is a big win for our client, as he was almost evicted due to defendant paying less than $200 per week in temporary disability benefits.  Now he can comfortably pay his bills and support his wife and kids as he awaits surgery and recovery.  This case shows that injured workers should not settle for questionable firms with hearing representatives that don’t know the law.  Union workers should always find a knowledgable aggressive attorneys that can work with their union representatives to make sure proper benefits are paid in full.  A special thanks to Sheet Metal | Air | Rail | Transportation (SMART) Local Union 105 for their help providing documents and support!”