An injured worker’s average weekly wage is one of the most important issues in a workers’ compensation claim.  It dictates how much the injured worker will receive for temporary total disability payments (TTD), and what the permanent partial disability rate is, which dictates how the injury is compensated.

On this topic, the case of ABF Freight System v. Illinois Workers’ Compensation Commission is an interesting study.  It was decided on December 11, 2015, with a corrected opinion on December 21, 2015.

John Rodriguez was injured at work on August 22, 2011, in an accident that was not disputed by his employer, ABF Freight System.  It involved the collision of a forklift with a steel structure.  Mr. Rodriguez described the collision as violent.  After being referred to an orthopedic surgeon, it was determined by MRI findings that the injured worker had suffered a disc extrusion.  The compression caused by the extrusion was relieved by surgery.

The employee reported he was doing well, and his pain had largely resolved, and he was released for light duty work.  One month later, he reported he had began experiencing symptoms in his left leg.  His surgeon diagnosed a recurrent disc herniation, and, after two additional MRIs and argument between the treating surgeon and an “independent medical exam” doctor hired by the employer, it was determined that the disc herniation was in fact a recurrent one, and had nothing to do with an injury which occurred between the two MRIs.

All issues regarding the injury itself were resolved in favor of the injured worker, including the fact that testimony of the respondent’s examining doctor should not have been admitted into evidence, a finding made after the arbitration decision by the Commission, while the case was on review.  The Commission also slightly modified the arbitrator’s finding on average weekly wage, stating that the correct average weekly wage was $661.29, and therefore, his temporary total disability (TTD) rate was $440.86.

The employer appealed to the Circuit Court, but the Circuit Court confirmed the Commission without significant comment.  Another appeal then followed.  In addition, the employer disputed the issue of causation, the average weekly wage and the ruling made by the Commission and confirmed by the Circuit Court that the testimony of the employer’s examining doctor should not have been admitted.  All of these issues were decided in favor of the employee after a lengthy discussion of the evidence.

With regard to the dispute on average weekly wage, the employer felt that the casual employment of Mr. Rodriguez for an initial period should have been considered, thus resulting in a lower average weekly wage.

Section 10 of the Illinois Workers’ Compensation Act provides:  “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.”

At oral argument, a question was posed regarding the phrase, “…in the employment in which he was working at the time of the injury.”  On the one hand, the employer argued that “employment,” which is not defined in the Illinois Workers’ Compensation Act, referred to the occupation in which the employee was working at the time of the injury, which was as a spotter.  On the other hand, it was suggested that “employment” should encompass both the period the employee worked as a spotter and the period that he was a casual employee.

The court then turned to the dictionary—Webster’s Third New International Dictionary of the English Language—which contains several definitions of the term “employment.”  It defines it as “work, fixed (as customary trade, craft, service, or vocation) in which one’s labor or services are paid for by an employer.”  The dictionary also defines “employment” as “the act of employing someone or something or the state of being employed.”  These two definitions leave the situation conflicted as to whether it should be the first, which would mean his trade at the time of the injury, or the second, which would encompass all of his employment, including that of a casual employee.

The court shot down the employer’s position for two reasons.  First, it was contrary to the purpose of the Illinois Workers’ Compensation Act, and that would require the court to impute an absurd, unjust intent of the legislature.  Concluding that “employment” as used in the context of this case means the position that the employee was working in at the time of his or her injury.  In Mr. Rodriguez’s case, at the time of his injury, he was working as a “spotter” and earning a salary based on that position.  The Commission properly used the claimant’s employment at the time of his injury, and calculated his average weekly wage.

In this particular case, the dispute between the employer’s wage calculation, which included the time of the injured worker as a casual employee, and the petitioner’s wage calculation, which was based only on the time of the injury, varied but a few dollars, but this is clearly not always the case, especially when the period of the initial employment is greater than that of the employment at the time of the injury.  For example, if Mr. Rodriguez had worked 75% of the year preceding the injury as a casual employee, and the remainder of the time as a union spotter in a full-time position, then the difference in average weekly wage calculations in this argument would have been far greater than it was.  In the end, for this particular case, the injured worker won the dispute.

Average Weekly Wage, Illinois Workers’ Compensation Act, Illinois Workers’ Compensation Commission, Permanent Partial Disability (PPD), Temporary Total Disability (TTD)

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