Timely reporting, fair wage assessment wins benefits in a cumulative work injury case
October 4, 2021
By Richard P. Gaitens, Esq.
In Gradel v. Regis Corp., The Workers’ Compensation Appeals Board (WCAB) affirmed the findings of the Workers’ Compensation Judge (WCJ) that a hairstylist provided timely notice of her work injury and that she correctly calculated her wages.
Debra Gradel developed carpel tunnel and an exacerbation of arthritis during her work as a hairstylist. She had conversations about the injury with her supervisor and also called the company 855 number to report the injury. The employer countered that she had not given proper notice because her supervisor was not “an authorized person.” Section 313 of the Workers’ Compensation Act provides that notice of a work injury may be given to the employee’s supervisor. The employer’s argument that the supervisor was not an authorized person is irrelevant under the Act.
Documentation proved that Ms. Gradel had called the 855 number. Section 311 and 312 of the Workers’ Compensation Act require that an employee must provide notice within 120 days of the injury. It is difficult to pinpoint when an injury occurred when it is a cumulative injury, and the WCJ will rely on the facts of each case. Generally, it can be the last day of work, where medical evidence indicates each day of work is a new injury or it can be the date of diagnosis when an employee seeks medical treatment while still working. The WJC found, and the WCAB affirmed that Ms. Gradel had provided adequate notice.
Because Ms. Gradel’s pay was a combination of hourly rate, commission, and tips, it was not a clear cut calculation as to her what her earnings were. The WCJ found the injured worker’s calculations, allocated to the four quarters preceding the injury, fairly assessed and was an accurate representation of her earnings.
What does this mean? When a worker is injured on the job, he or she should inform the immediate supervisor and also follow any other instructions, such as a call-in number or a form, as required by the employer as soon as they are injured or receive a medical diagnosis, as in the case of a repetitive injury. When an injured worker allocates his or her earnings to the four quarters before the injury and they are determined to be fairly assessed and economically accurate, the resulting weekly wage will likely stand.