During the course of my career I’ve heard many of Claimant attorneys argue that their client’s future bonus or potential eligibility for health insurance must be included in the average weekly wage (AWW) calculation.  Many times I counter, “no it does not.”  Case law states otherwise and now the First DCA confirms that rule.

In Target Woodwork v. Rodriguez, the Employer offered health insurance benefits after 90 consecutive days of employment.  On Claimant’s 88th day with the company (get ready for it!), he injured himself in a compensable accident.  Naturally, his attorney argued that the fringe health benefits should be included in calculating the AWW.

The argument–one that I’ve heard a 1,000 times–is that if not for the accident, Claimant would have continued to work and earned the health benefits.  Plus, these benefits are practically guaranteed at 90 days and (turn on the violins!), Claimant was this close to earning those benefits.  Surely, to not include them would be heartless.

However, the reasoning of the Court is that these potential health benefits had no “real present day value” to Claimant on the 88th day of his employment.  They only have value on the 90th day, and if Claimant got injured before then, too bad.  It sounds harsh, but a line has to be drawn and in this case, that line is the 90th day.

Now, what about sick days?  Employers offer sick days as benefits, especially when employees can cash them in every year if the sick days go unused.  The Court in Target Woodwork confirms that sick days are to be included even if Claimant did not use them before the accident, because Claimant had “access” to those sick days and therefore they represent a “real present day value” to her.

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