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Workers’ Comp News Alerts

By John F. Kamin

Petition for Re-Hearing Denied in Will County Forest Preserve Shoulder Case 

As many know, the Illinois Appellate Court rendered a Decision in Will County Forest Preserve District v. IWCC, ( 2012 IL App.(3d) 10077 WC) concluding that permanent disability for injuries to the shoulder should be paid based upon loss use of a man as a whole under Section 8(d)(2). A Petition for Re-Hearing had been filed by respondent’s counsel and the Court recently denied the Petition for Re-Hearing as well as the Petition for Certification of Importance to the Illinois Supreme Court. Consequently, the Will County Forest Preserve shall remain the law pending a legislative response.

AWW Overtime Wages and Wage Differentials 

Two (2) recent Decisions have dealt with overtime earnings as it relates to both AWW and a claim for a wage differential. In Arcelor Mittal Steel v. IWCC, (2011 IL App. (1st) 102180 WC) the Appellate Court had concluded that both shift differential pay and any incentive pay should be included in the AWW calculation. Furthermore, the Court properly included mandatory overtime in the AWW as the evidence suggests that it was not voluntarily and that Petitioner did not use seniority in order to obtain the overtime hours. Further, there is no evidence Petitioner requested to work the overtime hours. Petitioner’s supervisor had testified that Petitioner could switch his schedule for overtime with another employee, but that all employees were usually scheduled to work overtime. On that basis, overtime earnings should have been included at the straight time rate. However, if overtime earnings are not mandatory, then they would be excluded from the AWW calculation.

Further, the Appellate Court recently reversed the Workers’ Compensation Commission inclusion of non mandatory overtime in rendering a wage differential award. In Copperweld Tubing Products Co. v. IWCC, 402 Ill.App.3d 630, 931 N.E.2d 762 (1st Dist. 2010), Petitioner received an award for a wage differential benefit. Petitioner presented evidence as to what he could be earning at the time of the Arbitration By presenting the earnings of several similarly situated employees. Each of these employees worked voluntary overtime and the overtime earnings were included in determining Peitioner’s earning capacity for purposes of the wage differential award. The Appellate Court reversed the Commission. The Court noted that although petitioner’s co-workers were earning higher wages which included voluntary overtime, such overtime earnings should not be included for purposes of determining a wage differential award.

It is important in either circumstance to ensure that a company representative attends any trial hearing in order to confirm and establish that overtime earnings are voluntary.

Originally published in the Summer 2012 edition of Quinn Quarterly.