In this blog post, we will continue to discuss the issues surrounding average weekly wage. In the case of Illinois-Iowa Blacktop, Inc. v. Industrial Commission, the court acknowledged that the special considerations accorded construction and seasonal workers due to the unique nature of their work have long been recognized in Illinois. For example, some construction workers might be injured during the first week of employment and others work most of the 52 weeks per year; that as far as weather is concerned, the construction season is longer in Carbondale than in Chicago; and that of course modern methods have lengthened construction seasons.
Prior to the reforms in September of 1980, Section 10 of the Illinois Workers’ Compensation Act had a specific provision to address wage issues for employees who did not work year-round. It read like this:
As to the employees in employment in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings, providing the minimum number of days which shall be so used for the basis of the year’s work shall not be less than 200. Ill.Rev.Stat.1979, ch.48, par.183.10(a), (e).
The current version of Section 10 plainly states that in all cases where the employee lost five or more days of work during the 52 weeks prior to the injury, the lost time (to the extent not due to the fault of the employee) should be deducted from the wage calculation denominator.159
Illinois-Iowa Blacktop (Appellate Court Decision)
In the above-mentioned case of Illinois-Iowa Blacktop, the Appellate Court affirmed the Commission’s decision to determine a construction worker’s average weekly wage by using the worker’s hourly wage per the contract, and calculating what he should have earned during the 52 preceding weeks based on the number of non-overtime hours he worked and dividing that total by 52. The employer argued that this calculation resulted in a windfall to the Petitioner. A windfall is defined by Merriam Webster as “unexpected, unearned, or sudden gain or advantage.”
The court reasoned that although the calculation did result in a slight windfall to the Petitioner in Illinois-Iowa Blacktop, such a windfall was set off by the Petitioner’s inability to work again. Furthermore, the court went to explain that even under the old Section 10, the principle against windfalls was not absolute.
James Brown v. Riggs Construction (Commission Decision)
In the case of James Brown v. Riggs Construction, both the Commission and the Arbitrator came up with the same average weekly wage for a construction worker but used two different methods. In this case, the Petitioner was a union carpenter that only worked for the Respondent one full day before his accident on April 7, 2005. The parties agreed that Petitioner was hired pursuant to a collective bargaining agreement and that Petitioner’s hourly wage was always $34.32 prior to the date of the accident.
The Arbitrator used the third method wage calculation, finding that Petitioner’s average weekly wage was $1,372.80 since the collective bargaining agreement assumed a 40-hour work week. The Respondent argued that instead, the Arbitrator should have relied on the fourth method, using the earnings of a “like and kind” employee in calculating the average weekly wage. In support of that argument, Respondent offered records concerning wages earned by another union carpenter who worked for Respondent in 2004 and 2005.
The Commission applied the “like and kind” analysis but didn’t rely on the like employee’s wage records. Instead, the Commission relied on Petitioner’s testimony and records of wages that the Petitioner earned while working as a union carpenter for several contractors between April 2004 and April 2005.
- Petitioner had testified that he worked for Avenue, Inc. From April 19, 2004 through July 2, 2004 and that he never worked a 40-hour week during that interval.
- Petitioner also testified that he worked for RCI for five to six weeks, again absent any 40-hour work weeks.
- Petitioner then worked for Denk and Roche from February 2005 through April 2005 and once again never worked a 40-hour week.
- Finally, Petitioner worked 8 hours for Respondent on April 6, 2005, the day before the accident.
The Commission totaled the earnings, and came up with a total of $18, 601.44. The Commission relied on the evidence of work with past employers to determine that Petitioner worked for a total of 13.55 weeks prior to the date of the accident. The Commission then divided Petitioner’s earnings of $18,601.44 by 13.55 weeks, and came up with an average weekly wage of $1,372.80, which is the same number the Arbitrator arrived at by multiplying Petitioner’s wage of $34.32 by 40 hours pursuant to the collective bargaining agreement.
Not everybody works a steady 9 to 5 job. If you are a construction worker, it isn’t always easy to decipher your average weekly wage. And as you can see from the Commission’s decision in James Brown, sometimes you yourself can be a stand in for a “like employee” if you are injured on the job before you have the opportunity to establish a weekly wage with your new employer. If you are a union member, it is important that to have an updated copy of your collective bargaining agreement, along with access to paystubs from both your current and prior employers. This will make it easier to establish the correct average weekly wage, and ensure you receive the benefits you deserve.
If you are having difficulty figuring out your correct average weekly wage, feel free to contact me for a free consultation.