While our posts are normally plain spoken and easy to understand, our last two posts and this one have been a general overview of the law. It’s basically a starting point for learning how to handle a case. We’ll go back to our normal way of writing after this.
The Act defines average weekly wage as “the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52…” (emphasis added). 820 ILCS 305/10.
A. Measuring Employee’s Weeks Worked Preceding Injury
Where the employee has worked for the employer for all 52 weeks prior to the injury, the AWW is calculated by determining the regular earnings and dividing by the number of weeks (52).
B. Seasonal Employees
The Act further states “…if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted.” 820 ILCS 305/10.
If certain employment is seasonal in nature and the employee does not earn in every week in the 52 weeks preceding the injury. In Peoria Roofing & Sheet Metal Co. v. Industrial Commission, the court held that the AWW calculation is not performed by dividing the number of full workweeks in which the employee had worked. 181 Ill.App.3d 616 (3rd Dist. 1989). The employee had worked in 48 of 52 weeks, but had worked only a total of 134 days. Instead of including a full week in the calculation where the employee could have worked only one day in that given week, the proper method was to use “weeks and parts thereof” calculation. The 134 days worked was divided by 5, a number indicating a standard 5-day workweek to get a new divider number of 26.8 weeks.
To further illustrate, in Sylvester v. Industrial Commission, the claimant had worked 48 of the 52 weeks preceding, but had only worked a total of 131 days. 197 Ill.2d 225 (2001). The number of hours during these weeks ranged from 3 to 40 hours. The claimant was a roofer who did not work during the winter because of weather but was considered “on call” year round and testified that if “work were available he would work a 4-hour week.” The workweek divisor was determined to be 26.2, as the claimant’s workweek was 5 days long and since 131 days were worked (131 / 5 = 26.2).
C. Overtime Is Excluded
As noted above, overtime is excluded from average weekly wage calculation. Because different occupations have different regular hours of employment, “overtime” is measured on a subjective standard. Overtime has been defined as 1) compensation for any hours beyond those the claimant regularly works each week, and 2) extra hourly pay above the claimant’s normal hourly wage. Edward Hines Lumber Co. v. Industrial Commission, 215 Ill.App.3d 659 (1st Dist. 1990).
In Airborne Express v. Illinois Workers’ Compensation Commission the appellate court recently stripped non-mandatory overtime from average weekly wage calculation. 372 Ill.App.3d 549 (1st Dist. 2007). The employee worked overtime in 31 of 32 weeks preceding injury. The employee had seniority in which he was able to refuse overtime, but instead chose to work it. The court found this overtime to be within the meaning of Section 10 and should not have been included in calculating the AWW. This decision is quite a departure from the way overtime cases have been treated. Mandatory overtime, however, remains part of the AWW at the regular rate of pay.
D. Other Factors Considered
Vacation pay has been determined to be included as part of an employee’s average weekly wage. General Tire & Rubber Co. v. Industrial Commission, 221 Ill.App.3d 641 (5th Dist. 1991). In most cases, the inclusion of vacation pay does not materially change the rate since the weeks of vacation would be included in the formula for determining AWW.
VIII. Temporary Total Disability (TTD)
A. When the employee becomes totally and temporarily incapacitated from performing his job duties, he is entitled to TTD benefits pursuant to Section 8(b). The compensation rate is equal to 66 2/3% of the employee’s average weekly wage. 820 ILCS 305/8(b).
B. The maintenance benefit shall not be less than the TTD rate determined for the employee. In addition, maintenance shall include costs and expenses incidental to the vocational rehabilitation program. 820 ILCS 305/8(a). The employer has the duty to pay maintenance benefits to the employee once the employee reaches maximum medical improvement.
IX. Temporary Partial Disability (TPD)
A. When the employee is capable of working light duty on a part-time or full-time basis and earns less than he or she would be earning if employed in the full capacity of the job or jobs, then the employee shall be entitled to temporary partial disability benefits (TPD). 820 ILCS 305/8(a).
B. This equates to 66 2/3% the difference between the average amount the employee would be able to perform in the full performance of his duties in the occupation in which he was engaged at the time of accident and the net amount which he is earning in the modified job provided to the employee by the employer or in any other job that the employee is working. 820 ILCS 305/8(a).
X. Nature & Extent
A. Specific Loss
Section 8(e) of the Act provides a list of specific body members which the employee may receive compensation for at the rate of 60% of the average weekly wage.
For any serious and permanent disfigurement to the hand, head, face, neck, arm, leg below the knee or the chest above the axillary line, the employee is entitled to compensation for such disfigurement, the amount determined by agreement at any time or by arbitration … not less than 6 months after the injury but shall not exceed 150/162 weeks…”. 820 ILCS 305/8(c).
C. Man as a Whole
When the employee suffers permanent injuries that are not covered under the specific loss section of the Act, the employee will be entitled to permanency benefits under a man-as-a-whole. Where there is no loss in earnings but the employee can no longer perform his usual and customary line of employment, he can ask for compensation on the basis of 500 weeks and the scheduled losses for 8(e). 820 ILCS 305/8(d)(2).
D. Wage Differentials
If the employee as a result of the injury becomes partially incapacitated from pursuing his usual and customary line of employment, he shall receive compensation for the duration of his disability, equal to 66 2/3% the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment after the accident. 820 ILCS 305/8(d)(1).
E. Permanent Total Disability
1.) Statutory Permanent Total Disability: The specific case of loss of both hands, both arms, or both feet, or both eyes, or of any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability…”. 820 ILCS 305/8(e)(18). This allows the employee recovery of 100% loss of use of the specified member.
2.) Medical Permanent Total Disability: When the employee does not suffer a specific permanent total disability defined by the above statute, he can still be found to be permanently and totally disabled with an injury to any part of the body which has caused actual, complete disability supported with medical evidence. 820 ILCS 305/8(f).
3.) Odd-Lot Permanent Total Disability: For an employee whose disability is limited in nature so that he is not obviously unemployable, or if there is no medical evidence to support a claim of total disability, the employee may qualify for “odd-lot” permanent total disability by establishing the unavailability of employment to a person in his circumstances. Valley Mould & Iron Co. v. Industrial Commission, 84 Ill.2d 538 (1981). If he is able to prove this, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the employee.
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