“Employment” under Section 10
ABF Freight System v. IWCC, 2015 IL App (1st) 141306WC
Synopsis: The Appellate Court held “employment” as used in Section 10 means the position in which the petitioner was working at the time of his or her injury. Therefore, only the earnings and weeks worked for that particular job are to be considered in calculating average weekly wage.
Facts: Petitioner was originally hired as a “casual employee.” This meant he was told the day before a shift whether the respondent needed him to come to work; he was nonunion and worked about 19 hours per week. Petitioner was a “casual employee” from December 11, 2010 to March 19, 2011. Petitioner at that point obtained his certification as a “spotter,” and he became a full-time, union employee, working about 36.6 hours per week.
The Commission determined the time spent as a casual employee should not be included in the average weekly wage calculation. Instead, the Commission calculated Petitioner’s average weekly wage using only the earnings from the 22 weeks he worked as a spotter. On appeal, Respondent argued the Commission should have used the earnings from both positions Petitioner worked as its employee, which would result in a lower average weekly wage.
The Appellate Court first looked to Section 10, which provides average weekly wage shall mean “the actual earnings of the employee in the employment in which he was working at the time of the injury….” (Emphasis added.) 820 ILCS 305/10 (West 2010). The Court noted “employment” was not defined in the Act and the parties presented two competing interpretations: Petitioner posited “employment” referred to the specific occupation in which the employee was working at the time of the injury, while Respondent contended the “employment” meant the entire period during which the employee worked for the employer. As both interpretations were compatible with the dictionary definition and therefore ambiguity existed as to the term’s meaning, the Court turned to principles of statutory construction. In so doing, the Court considered the “purpose behind the law and the evils the law was designed to remedy.” Reiterating the main purpose of the Act was to “provide financial protection for injured workers,” the Court held the legislature intended “employment” to mean the particular job a claimant was engaged in at the time of an injury rather than the continuous period of employment with a single employer:
At the time of his accident, claimant was earning wages as a spotter—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 award should be based on. This is consistent with the remedial purposes of the Act. ABF Freight System, 2015 IL App (1st) 141306WC, ¶31.
Impact on Illinois Employers: When calculating average weekly wage, only the earnings and weeks worked from the claimant’s current occupation or job classification are to be considered. While in this circumstance Petitioner’s AWW increased, it is important to remember the language of this holding would seemingly permit a reduced AWW should an employee have been transferred or demoted to a lesser-paying position.
