Morgan’s Tip of the Week – TPD During COVID Layoff, AWW


A JCC level case from a week ago caught my eye because it dealt with two issues that I am being asked about fairly frequently.  (JCC level cases are not “the law”, and they are not binding on other JCC’s, but are sometimes good indicators as to how other JCC’s may rule).

In this case, there were two main issues.

  • Following an accident, a claimant was laid off from her job as a camp counselor because of Covid.  She did have work restrictions that were being accommodated prior to the layoff.   The JCC, citing the Wyeth v. Toscano case, denied the claim for TPD claim.  The claimant failed to meet “her burden of demonstrating a causal connection between the compensable injury and the subsequent loss of earnings.”

The key here is the employer was able to accommodate the restrictions before the layoff.

  • In the 13 weeks before the accident, the claimant was paid a “longevity bonus”.   The employer classified it as earnings in the payroll records, and it was included in her regular paycheck.  For that reason, the JCC included it in the 13 week AWW calculation.

In some cases, I have seen these types of bonuses prorated over the year for AWW purposes  In this case it was simply added into the 13 weeks.   I think if it was more of an annual bonus, an argument could be made for 1/52nd to be included in the AWW.  It will depend on what the bonus was for and how it was labeled by the employer.

Just a good refresher on the view on these issues.  As always, let me know if you have any questions.


Morgan Indek | Managing Partner