When we say that every Illinois workers compensation case is different, one big reason is because your course of medical care is not the same as anyone else. Neither is the way the accident is caused, your age, your health background or any possible defenses to the case. Another factor that is really big is your average weekly wage.
Payments for time off work and settlements in Illinois workers’ compensation cases are based off your average weekly wage. If you are salaried at $104,000 a year, it’s pretty easy to show your average weekly wage (AWW) is $2,000. Most cases aren’t that simple of course.
Here is what the Illinois Workers’ Compensation Act says about how to calculate an AWW:
The compensation shall be computed on the basis of the "Average weekly wage" which shall mean 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; but 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. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee actually earned wages shall be followed. Where by reason of the shortness of the time during which the employee has been in the employment of his employer or of the casual nature or terms of the employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury, illness or disablement was being or would have been earned by a person in the same grade employed at the same work for each of such 52 weeks for the same number of hours per week by the same employer. In the case of volunteer firemen, police and civil defense members or trainees, the income benefits shall be based on the average weekly wage in their regular employment. When the employee is working concurrently with two or more employers and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation.
So let’s use plain English on this. If you worked 52 weeks in a year, you add up your wages (overtime at a straight time rate) and divide by 52. That is for the most straight forward.
If you only worked 48 weeks, you’d divide by 52. If you’ve been with the company for years, but took two weeks of unpaid leave, you’d divide by 50.
If you just started a job, we’d look at what the earnings would be of a similarly situated employee. In other words, let’s say you got hired as a barista at Starbucks. If you fell on the second day on the job and tore your ACL, we’d calculate your AWW based on what full time baristas make.
If you are a seasonal worker, your AWW would be based on the season. If you have two jobs, typically we add up the wages of both jobs. If some fringe benefits are included as compensation, those should be included too.
If you are available to work full time, but they only give you sporadic work, the Commission will divide the number of days worked by 7 to determine how many weeks you worked.
The biggest take away from this should be that the number one way workers get screwed over is by having their AWW miscalculated. It can cost you hundreds of dollars a week in benefits and tens of thousands when it comes to settlement time. Don’t trust the insurance company when they tell you what your weekly pay rate should be. Talk to a lawyer.
Bonus tip. If the insurance company paid you too little, you can retroactively be reimbursed once the correct amount is determined.
If you have any questions about wages and Illinois work comp law, please call us for free any time at 312-346-5578.