In Arcelor Mittal Steel v. Illinois Workers' Compensation Commission, 2011 IL App 102180WC (November 7, 2011), a maintenance technician filed a workers' compensation claim for injuries to his right arm sustained while carrying 300-pound piece of steel. The Arbitrator awarded TTD and PPD, which included scheduled overtime earnings and production bonuses.
The Appellate Court ruled the Workers’ Compensation Commission did not err by including overtime earnings in calculating average weekly wage, as evidence established the employee was required to work scheduled overtime as a condition of his employment. Academicians note there is nothing in Section 10 of our Ac that says anything about scheduled or unscheduled overtime.
The IWCC also included production bonuses in calculating average weekly wage, as bonuses were in consideration for work performed pursuant to collective bargaining agreement and the employer had no discretion in paying bonuses when earned. Basically, it appeared to the Commission and reviewing courts the “bonuses” were part of the regular compensation of these workers.
In our view, this decision did not change the seminal ruling of the Appellate Court in Airborne Express, it appears to merely have supplemented the decision. Case law and the Act have long held mandatory overtime wages earned in the 52-weeks prior to the injury are included in the AWW calculation. Questions have developed and been decided over the years regarding overtime and resulting decisions have hinged on “regular and mandatory”.
Bonuses that are not part of regular compensation are supposed to be excluded based on the language of Section 10 of the IL WC Act. This dispute appears to have based upon the semantics of how the bonuses were defined by the parties and Respondent sought clarification. The collective bargaining agreement call the production bonuses “the incentive plan” and the employer called them “a production plan”. What is undisputed is the fact the bonuses were calculated and paid based upon the prior year’s production. The bonuses complained of were non-discretionary and part of the CBA. While the employer attempted to argue the bonuses were tied to production, safety and attendance; it was uncontroverted the bonuses were based upon the prior year’s production, safety and attendance, and the employee in question clearly worked and earned the bonuses in the prior year.
This article was researched and written by James F. Egan, J.D. Please do not hesitate to contact Jim about issues relating to calculating the average weekly wage at firstname.lastname@example.org.