Wages for Short Timers

March 2018

By Kelly E. Kamstra

When a claimant is employed with an employer for at least a year prior to their workplace accident, the applicable average weekly wage is relatively straightforward to calculate. In situations where a claimant is employed less than a year prior to his or her workplace accident, a more involved analysis must take place.

Section 10 of the Illinois Workers’ Compensation Act addresses how an average weekly wage is to be calculated in cases where petitioner has worked less than a calendar year. The Commission can either add up claimant’s actual earnings for the period of her employment and divide by the weeks and parts worked; or, if her time has been really short, measure her AWW by the earnings data of a person working in a like job for the year preceding the claimant’s accident.

The question becomes, of course, what is a “really short” period of employment such that the IWCC will look to the earnings of a colleague.

Illinois Courts have examined this issue and while there is no litmus test in making this determination, examining relevant decisions can assist in the decision making process and ultimately prevent the under or overpayment of benefits.

The Illinois Appellate Court, in Cent. Grocers v. Ill. Workers’ Comp. Comm’n, determined that using the earnings of a similar employee is appropriate when the claimant only worked one day in the year preceding his accident. The court in this case looked at the plain language of Section 10, and because of the short term of employment, Petitioner had not earned any wages in the 52 weeks prior to his workplace accident. From a practical standpoint, using a similar employee’s earnings for the 52 weeks prior to the date of accident in this case makes sense, since not even one pay period was worked prior to the date of accident. Cent. Grocers v. Ill. Workers’ Comp. Comm’n, 2016 Il App.3d 150557WC-U. (1)

On the opposite end of the spectrum, the Illinois Workers’ Compensation Commission affirmed a determination that a 35 day work permit was enough documentation to use the claimant’s “actual earnings” in determining average weekly wage, even when only one day of work was completed. In Stephen McKenzie v. Read Excavating, Petitioner was hired under a 35 day permit with the International Union of Operating Engineers Local 150. Petitioner was not a member of the union, however, under this permit, he was assigned to work on various union job sites. Petitioner was to be paid as if he were a union journeyman. Arbitrator Erbacci determined that the issuance of the 35 day permit, as well as the union contract guiding Petitioner’s pay, made using Petitioner’s projected wages, divided by parts of the week, the appropriate method for calculating an average weekly wage. Arbitrator Erbacci did consider using a similar employee’s wages, but determined that the amounts would ultimately be the same, per the union contract. While other issues were modified upon review, the Commission affirmed Arbitrator Erbacci’s determination on this issue. Stephen McKenzie v. Read Excavating, 4 IIC 82 (January 2004).

When any situation arises where a claimant was injured shortly after being hired, it is always an excellent idea to take the above considerations into account when assessing the average weekly wage of the claimant. Reasoning from Arbitrator Erbacci determined in McKenzie it seems 1 day is not enough data to calculate average weekly wage but 35 days is a sufficient sample size.

(1) This is an unpublished opinion from the Illinois Appellate Court, so while it cannot be used as precedent for future cases, the analysis provided in this case provides a guide as to how the Courts will handle similar issues going forward.