Teachers Deserve Better: How the workers' compensation system deprives educators

We are blessed to have so many committed teachers who devote countless hours and energy to educating our children. We all know our teachers are underpaid. What many teachers don't know is just how underpaid they are if injured at work.

Under South Carolina law, a worker who is out of work as a result of a job injury is not entitled to compensation in the same amount that he/she was making. Instead, the worker is entitled to weekly payments of 66 2/3 of her "average weekly wage."

South Carolina Code of Laws ยง42-1-40 calculates "average weekly wage" as follows: take the total wages paid for the last four quarters ...and divide by:

i. fifty-two or

ii. the actual number of weeks for which wages were paid, whichever is less.

What does this mean for injured teachers?

Here is how this works. Most jobs have an annual salary where a worker is employed 52 weeks out of the year. Assume this worker makes $40,000 per year and is injured on the job. Her average weekly wage would be $40,000/52 = $769. This injured worker would then be entitled to 66 2/3 (.6667) of this amount or $512 in weekly compensation.

Teachers' and most school district employees' jobs are different. South Carolina Code of Laws ยง59-1-425(A) specifically provides that the school year consists of 190 days and teachers are paid for 190 days (38 weeks). Although a teacher is paid for 38 weeks of work, most elect to receive their paychecks stretched out and reduced over a 52-week pay period. As a result, when a teacher is injured at work, the school district's worker's compensation carrier is calculating the average weekly wage utilizing 52 weeks instead of 38 weeks, which unfairly dilutes the teacher's compensation. Why do they do this? Because it saves them money and most teachers aren't aware they are being cheated out of what they are entitled to.

How we are fighting for South Carolina teachers

An example of a recent case we took all the way up to the South Carolina Court of Appeals illustrates how significant injured teachers are being short changed by the workers compensation system. We represented a teacher who worked for the Charleston County School District. She was seriously injured breaking up a fight and required a neck and back surgery. She worked during the school year but not during the summer. Our client made approximately $40,000 the year before but elected to receive her payments over a 52-week period. The school district's workers compensation carrier computed her average weekly wage as follows: $40,000/52 = $769.

We argued our client's wages were paid based on 38 weeks of work, not 52 weeks, and therefore her average weekly wage should be calculated as follows: $40,000/38 = $1,052. In our case, because our teacher had two surgeries, she had permanent disability payments she was also entitled to and utilizing 38 weeks as opposed to 52 weeks made a big difference.

In our brief to the Court of Appeals we gave the following hypothetical to show how the school district was diluting teachers' benefits:

Assume there is a teacher whose salary is $38,000 per year, $1,000 for every week of work. Suppose this teacher gets injured on the job and must miss 6 weeks of work. This costs the teacher $6,000 in wages. The injured worker would be entitled to temporary total disability benefits while out of work at 66 2/3 of her $1,000 average weekly wage or $667 (total compensation rate).

The School District's average weekly wage calculation will reduce the teacher's benefits significantly without justification. The District's math of dividing $38,000 by 52, instead of 38, yields an average weekly wage of $730 with a total compensation rate of $487. Instead of receiving 66 2/3 of each $1,000 the teacher loses every week, this teacher only gets 49%. Instead of receiving $667 per week, the teacher only receives $487, a windfall for the School District.

Now change the hypothetical so the teacher misses the entire school year, forfeiting her entire salary. The percentages are the same. Instead of getting benefits based on 66 2/3 of her lost earnings (roughly $25,333), the teacher gets only 49% (about $18,500). This teacher loses 25% in benefits for no reason.

The unfair treatment continues

The South Carolina Education Association, which is the largest organization of professional educators, filed an Amicus Curiae Brief with the Court of Appeals in support of our position because it recognized the importance of this decision for all teachers throughout the state. Prior to oral argument, the workers compensation carrier asked to settle and agreed to compensate our client utilizing our calculations and the case was dismissed.

However, because the issue was never decided by the Court of Appeals, the school district continues to utilize 52 weeks to purposely reduce what teachers are owed. They will continue to do it because they have the deep pockets and don't think educators will stand up to them. If you are injured at work, please educate yourself and don't be afraid to fight for your rights. If you are injured at work and need legal representation please feel free to contact us.

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Riesen DuRant, LLC
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Mount Pleasant, SC 29464

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