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211 Landmark Drive, Suite C2, Normal, IL 61761

211 North Broadway, Suite 2200, St. Louis, MO 63102

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Average Weekly Wage: Are Overtime Hours Really Mandatory Or Consistent?

November 2021

By: Markeya A. Fowler

Properly calculating average weekly wage is essential to any claim and can often pose a challenge based on the types of compensation received by an employee. In a year, an employee often earns regular wages, overtime wages, bonuses and additional earnings for working holidays. An issue often in dispute between parties that can significantly affect the average weekly wage calculation is whether overtime hours worked are mandatory, or, if not mandatory, consistently worked?

It is well established under case law and the Illinois Workers’ Compensation Act that average weekly wage is calculated generally to exclude overtime and bonuses. Section 10 of the Illinois Workers’ Compensation Act states that:

“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 employee's last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52.”

So what exactly does this mean? Since the enactment of the current version of Section 10, the Appellate Court has interpreted the statute to determine the legislature’s intentions and what should be classified as overtime.

Collateral Estoppel Applied in Case Involving Workers’ Compensation Settlement

Armstead v. Natl’l Freight, Inc., 2020 IL App (3d) 170777

Dylan R. Besser

I. Introduction

Question 1 – If, in the underlying workers’ compensation claim, a claimant only establishes injury to his knee, can this claimant then, in a subsequent civil lawsuit, claim injuries above and beyond what was established in said workers’ compensation claim? Based on Armstead v. Nat’l Freight, Inc., 2020 IL App (3d) 17077, the answer is no.

Question 2 – What is the proper doctrine for moving for summary judgment on a plaintiff’s tort claim in a situation like the above? Would Plaintiff’s tort claim be barred under the doctrines of (1) collateral estoppel, (2) res judicata, or (3) judicial admission? The appellate court ruled Plaintiff’s claim was barred under collateral estoppel.

What Happens in Kane County…Should Not Stay in Cook County

September 2021

By: Robert J. Schwarz

Recently, the Illinois Appellate Court, First District issued an opinion that should prove to be a valuable tool when confronted with a forum shopping plaintiff looking to file suit in a more plaintiff-friendly jurisdiction. In Matthiessen v. Greenwood Motor Lines, Inc., 2021 IL App (1st) 200405-U, the Court established that, despite reports of its death, the doctrine of forum non conveniens is actually alive and well in Illinois.

The doctrine of forum non conveniens is an equitable remedy based on considerations of fundamental fairness and effective judicial administration. The circuit court is given the discretion to decline jurisdiction in cases where another forum with proper jurisdiction and venue would better serve the ends of justice.

In-Person Jury Trials Resume in Illinois

September 2021

By: Jeffrey F. Clement

Since the start of the Covid-19 pandemic, courts throughout Illinois have enacted a patchwork of procedures for court appearances, hearings and trials. Early on, this resulted in a complete suspension of jury trials. Then, courts moved to remote procedures and/or a hybrid approach where a personal appearance was optional. More recently, many courts throughout Illinois have started in-person appearances and trials. Yet, Cook County lagged with enacting any procedures to specifically resume in-person jury trials.

It appears those days are now behind us. On September 8, 2021, the Circuit Court of Cook County entered a new General Administrative Order (GAO) allowing all court proceedings to be conducted in person, remotely or in a hybrid of the two. Most importantly, the Court is expanding operations in all district and divisions to accommodate in-person jury trials.

21 More Medicare Tips For 2021

June 2021

By: Marina Takagi Cobb, MSCC, CMSP

In 2020, the Brady, Connolly & Masuda, P.C. Medicare Compliance Department (MCD) provided our top 20 tips and updates for the Medicare Secondary Payer world (https://conta.cc/2T6NjH4). Since then, we have all overcome new obstacles, developed innovative processes, and continued to advance the practice. With 2021 in full swing, the MCD presents 21 more tips and updates for you.

GENERAL INFORMATION:

  1. Start. Early! The MCD continues to emphasize early investigation into possible Medicare implications for your claims in order to avoid delay in resolution down the road.
  2. With that said…it is never too late. Whether the claimant is still treating, you have settled the claim, or the permanency portion of the claim has been closed for some time, the MCD can always offer recommendations to resolve possible Medicare-related issues throughout your claims.
  3. The low-dollar review thresholds for liability, no-fault, and workers’ compensation cases remain $750.00 in 2021.
  4. Rated ages are not only useful for future medical analyses, but can also decrease potential exposure for other aspects of claims. Please reach out to us if you need assistance with obtaining a rated age.

Two Heads Are Better Than One

June 2021

By: Markeya A. Fowler and Carolyn P. Murray, MSCC

Two heads are better than one! We have all heard this old adage and found it to be true more often than not. Brady, Connolly & Masuda, P.C. is proud to share one such case where two practice groups came together to achieve a great result.

One of the hardest to contain and costliest parts of any workers’ compensation case is the exposure for future medical. That task becomes even more arduous when the claimant is a Medicare recipient. Our attorneys, Markeya Fowler (Workers’ Compensation Litigator) and Carolyn Murray (Certified Medicare Consultant) were faced with this task in a work injury claim. Together, they formulated and implemented a strategy which completely mitigated the future medical exposure for the client.

The claimant alleged that he was involved in two accidents occurring a month apart. He claimed an injury to his shoulder on June 11, 2012 while removing baseboards and to his bilateral hands on July 12, 2012 while prying out tile. As the case developed, we were able to identify evidence that called into the question the claimant’s credibility, as well as the alleged mechanism of injury.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
One Metropolitan Square
211 North Broadway, Suite 2200
St. Louis, MO 63102
Phone: 314-300-0527
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