Appellate Court provides new interpretation of Average Weekly Wage calculation
The Illinois Appellate Court recently held in ABF Freight System v. IWCC, 2015 IL App (1st) 141306WC, that the Commission was required to calculate AWW based solely on the wages from the position in which the claimant was working at the time of his accident.
In this case, the claimant sustained an injury to his back in a compensable accident on August 22, 2011 and subsequently underwent a lumbar surgery to address a lumbar disc herniation. Prior to the accident, the claimant had begun working for the Respondent on December 11, 2010 as a non-union, casual employee and worked approximately 19 hours/week for 14 weeks through March 19, 2011. He subsequently obtained his certification as a spotter, at which time he became employed as a full-time employee and worked approximately 36.6 hours per week. He worked in that position for 22 weeks prior to his compensable work accident on August 22, 2011. The claimant earned more as a certified spotter than he did as a causal employee. The Commission only counted the wages that the claimant earned as a certified spotter in its AWW calculation. Respondent contended that it should have used both periods during which the claimant worked for the Respondent, which would have resulted in a lower AWW. The Circuit Court affirmed the Commission’s decision.
Section 10 of the Act provides as follows:
“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 employees last full pay period immediately preceding the date of injury, illness or disablement excluding overtime and bonus, divided by 52.”
On appeal to the Appellate Court, the employer contended that “employment” meant the period during which the employee worked for the employer, which would encompass both the period claimant worked as a certified spotter and the period he was a casual employee, which would have resulted in a lower AWW. The Appellate Court rejected that argument and found that the employer’s position was contrary to the purpose and intent of the Act.
The Appellate Court indicated that where the language of a statute is clear, the Court must give effect to its plain language. The Court added that if the meaning of an enactment is not clear from the statutory language, the Court may look beyond the language and consider the purpose behind the law, the evils that the law was designed to remedy and the consequences that may result from construing the law one way or another. The Court added that the intent of the legislature was to make an employee whole after the loss of future earnings to due injury. The Court found that the claimant was no longer a casual employee and that his earnings as a casual employee no longer provided insight into his future earnings. The Court reasoned that the claimant was a spotter and would be losing the wages of a spotter, as opposed to the wages of a casual employee, as a result of his work injury. The Court found that if they were to presume that the legislature intended to measure claimant’s loss by something to which it bears no relationship, they would be attributing to it an absurd and unjust intent.
The Court found the employer’s position regarding the AWW calculation untenable for two reasons; the first being contrary to the purpose of the Act and the second requiring the Court to impute an absurd, unjust intent to the legislature. The Court found that the term “employment,” as used in section 10 of the Act, referred to the occupation in which the employee was working at the time of the injury, i.e., as a spotter. The Court found that the Commission properly used claimant’s employment at the time of his injury in calculating his AWW.
What it means: The Appellate Court attributed the term “employment” in section 10 to the specific position that the employee was working at the time of his injury and not to (1) the same employer with which he was working during the 52-week period that preceded his accident or (2) the length of time that he had been in a specific position at the time of his accident. It’s unclear whether the Court would have found the employer’s position concerning AWW to be untenable had the claimant worked as a casual employee for 20 weeks and a spotter for 3 weeks.
Thanks to partner Mark Carter for following this issue and providing this summary.