Seasonal Employee Injured during Temporary Off-Season Work: What Are Claimant’s Relevant Earnings In Determining His Compensation For An Injury?

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Seasonal Employee Injured during Temporary Off-Season Work: What Are Claimant’s Relevant Earnings In Determining His Compensation For An Injury?

Two sections of the Illinois Workers Compensation Act deals with calculating the number of wages that are due to an injured employee upon injury. Section 10 of the Illinois Workers Compensation Act discusses how an Average Weekly Wage is calculated to determine the rate of compensation. This section in part provides that “Average weekly wage means the actual earnings of the employee in the employee in which he was working at the time of the injury during the 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury”. This section further provides that “when the employee is working concurrently with two or more employers, and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered if earned from the employer liable for compensation”. 820 Ill. Comp. Stat. Ann. 305/10

Section 8(d)(1) of Act also deals with the amount of compensation that is due to an injured employee. This section in part states “If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall receive compensation for the duration of his disability equal to 66- 2/3 % of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident”. 820 Ill. Comp. Stat. Ann. 305/8.

The Plain reading of section 10 allows an employee to be compensated based on earnings he was making at all employers granted that the Respondent employer knew his employment. On the other hand, section 8 (d)(1) seems to exclude wages not earned at the time of the injury. Illinois Supreme Court in Flynn v. Indus. Comm’n, 211 Ill. 2d 546 (2004), analyzed and reconciled the plain language of Section 10 and section 8(d)(1). In Flynn, the claimant’s primary job was of an asphalt truck driver. As an asphalt truck driver claimant generally worked from spring to late fall. The claimant was laid off during the winter months. During the winter months, the claimant would find part-time employment. The claimant was injured during one of his part-time employment. Claimant’s part-time employment never overlapped with his primary employment as an asphalt truck driver. In Flynn, the Supreme Court was asked to decide as to whether in calculating claimant’s compensation his earning from his primary job as an asphalt truck driver are to be used in calculating his claim for wage differential.

Supreme Court in Flynn in deciding this question, reviewed the Appellate Court case in Jacobs v. Industrial Comm’n, 269 Ill.App.3d 444 (1995).In Jacobs, the claimant was primarily employed as a sheet-metal worker. He was also employed part-time cleaning snow. The claimant was injured during his part-time employment while cleaning snow. At the time of the injury, the claimant has been laid off as a sheet-metal worker for two or three weeks. The evidence at the time of the trial showed that the layoffs like one claimant had was not unusual in that line of work, and that claimant was at all times subject to recall. The Appellate court in Jacobs found that the claimant’s wage as a sheet metal worker should be taken into account in calculating recovery under the Act because the claimant’s employment relationship as a union sheet-metal worker was not severed during his layoff period or at the time of the accident.

The Supreme Court in Flynn in answering the presented question held and found that the Illinois Workers Compensation Act is a remedial statute designed to and intended to protect injured employees. The system of workers’ compensation aims to make an employee whole for the interference with his future earnings occasioned by an injury. The Supreme Court found that when an employee is concurrently employed, all of his earnings are to be included when calculating a claim under wage differential. The Supreme Court acknowledged that a claimant may be concurrently employed by two or more employers even during a layoff from one of the jobs. The Supreme Court emphasized that the test remains whether at the time of an injury the claimant’s employment relationship with the concurrent employer is severed. It noted that in determining that the duration and consistent seasonally recurrent nature of claimant’s primary employment are relevant.

The Supreme Court in Flynn suggested that the test in determining whether concurrent wages even if not earned at the time of the injury are to be included in determining an injured workers compensation is if the wages earned remains a valid predictor of the injured employee future earnings capacity. At Strong Law offices, we focus on getting the best recovery possible for our clients. If you are unclear as to the wages that need to be calculated in determining the correct compensation, call us for a free consultation.