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New Calculation For Average Weekly Wage

The Average Weekly Wage pursuant to Illinois Workers Compensation Act is to be calculated as 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 preceding the date of injury divided by 52. 820 ILCS 305/10 (West 2010). Traditionally this formula has been construed as the amount of money made by the injured worker at the employer, divided by the weeks/days worked.

Recently, Illinois Appellate Court was asked to weigh in as to what the term "in the employment" meant as stated in the Act. They were presented with a scenario where the injured worker, worked as a "casual employee" for employer for a few months. He subsequently obtained a certification as a "spotter". After becoming a spotter, the injured worker was employed as a full-time employee for 22 weeks prior to his accident. Injured worker earned more as a spotter than he did as a casual employee. The Illinois Workers' Compensation Commission in calculating the Average Weekly Wage only counted claimant's time as a spotter. The Employer appealed the issue to the Appellate court arguing that per the Act both periods during which claimant worked for the employer, which would result in a lower Average Weekly Wage should have been used.The Appellate Court in order to analyze this issue first looked at whether the term "employment" is defined in the act. The court explained that when the legislature does not define a term in a statute (Act), we may consult a dictionary to ascertain its meaning. ABF Freight Sys. v. Rodriquez, 2015 IL App (1st) 141306WC. The court found that per reputable dictionaries, the term employment can be referred to both as the particular job in which claimant was engaged at the time of the injury and also as the entire time that claimant was employed by the respondent. The court further explained that when the meaning of the statute is unclear from the plain language, we should consider the purpose behind it.

The Appellate Court found that the main purpose of the Illinois Workers Compensation Act is to make the injured worker whole, to bring him back to the position he would have been but for the injury. With that logic applied the Appellate Court held that the term "in the employment" in the Act refers to the particular job an injured worker was engaged in at the time of the injury rather than the continuous period of employment with a single employer. They further went on to explain that at the time of his accident, claimant was earning wages as a spotter and that is what he lost as a result of the accident. As such, the true measure of claimant's loss is the wages he was earning at the time he was injured, and that is what his average weekly wage should be based on.

If you are an injured worker and think that the insurance company is cheating you on your Wages and paying you less than what you are entitled to, then call Strong Law Offices and ask to speak with one of our experienced attorneys to evaluate your case.

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