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211 Landmark Drive, Suite C2, Normal, IL 61761

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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.

A Peek Into Petitioner’s Past Prevents A Permanent Total

January 2021

By: Francis M. Brady, Karen E. Zimmermann, and Ndubuisi V. Obah

Petitioner was scheduled for a cervical fusion surgery which she and her treating neurosurgeon both linked to a trauma at work. A large umbrella blew over and its pole struck petitioner in the back of the head. Not only was there a physical injury, petitioner also asserted she sustained post-traumatic stress disorder as a result of the incident. She was supported in that claim by her treating psychologist. Both doctors limited her ability to work and no light duty could be afforded. Thus she was and had been for some months on full benefits.

No Penalties for Delay in Authorizing Medical Treatment: A Defense for Employers

October 2020

By: Markeya A. Fowler

Expanding on its reasoning in Hollywood Casino-Aurora, Inc. v Ill. Workers’ Comp. Comm’n, 2012 IL App (2d) 110426WC, the Second District Appellate Court issued a decision that limits the awarding of Section 19(l) and Section 8(a) penalties and attorney’s fees under the Illinois Workers’ Compensation Act.

Captain Caterpillar: The Final Word on McAllister

October 2020

By: Rachel E. Smith

A workers’ compensation case concerning carrots, coworkers, and common courtesy, Kevin McAllister’s claim for benefits sent the Illinois courts down a path of self-reflection when considering whether injuries involving common bodily movements arise out of employment.

On August 7, 2014, Kevin McAllister was preparing for the dinner rush at North Pond Restaurant, where he worked as a sous-chef. Part of his process was arranging the restaurant’s walk-in cooler, making sauces, and prepping food items; so, when a co-worker mentioned misplacing a pan of carrots in the walk-in cooler, Mr. McAllister offered help. He thoroughly checked the walk-in cooler, finally kneeling down to search under the shelves. When he stood up, there was a “pop” and his knee “locked up.” He hopped over to a table to try and straighten his leg, failed, and was taken to the emergency room. After presenting his claim for benefits, the Arbitrator found that the injury arose out of his employment, as the act of looking for the carrots in the walk-in was one the employer reasonably could have expected him to perform in order to fulfill his duties as a sous-chef. The Arbitrator found Mr. McAllister’s position so clear and convincing, that it rendered the Respondent’s refusal to pay benefits dilatory, retaliatory, and objectively unreasonable, warranting the imposition of penalties and attorney’s fees, in addition to awarding TTD, PPD, and medical benefits.

COVID-19 Continues to Present Evolving Challenges for Employers, Insurers and Third Party Administrators in Missouri

August 2020

By: Noah P. Hamann

COVID-19 continues to present evolving challenges for employers, insurers and third party administrators. Adjusting to these unprecedented claim situations requires a careful analysis of facts, rules, laws and the political climate.

Like many other states, Missouri’s Division of Workers’ Compensation has taken action aimed at addressing COVID-19 injuries and illnesses. While its COVID-19 rules have been in effect for several months, they are worth revisiting as Missouri is experiencing a rise in confirmed cases and hospitalizations. Recently, White House Health officials identified the St. Louis and Kansas City regions as “areas of rising infections.”[1] This uptick likely suggests the claims industry may also see an increase in COVID-19 related workers’ compensation allegations from employees. For these reasons, it is worth taking another look at the Division’s current rules relating to the pandemic.

Payment of Permanent Partial Disability Benefits: Weekly Accrual or Lump Sum?

June 2020

By: Kelly E. Kamstra

A recent case before the Illinois Appellate Court raised the issue how permanent partial disability benefits should be paid out by a respondent.  In the case of Alphonse Lannoni v. The City of Chicago, Petitioner was awarded $6,189.73 in additional temporary total disability benefits and 175 weeks of permanent partial disability benefits or $126,290.50. 

Respondent issued an initial check to Petitioner for $62,890.49, covering the temporary total disability benefits owed and more than 70 weeks of the permanent partial disability benefits awarded.  Following that initial check, Respondent issued a second payment of $3,135.78, four weeks after issuing the first payment.

  • 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
1015 Locust Street, Suite 914
St. Louis, MO 63101
Phone: 314-300-0527
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