Disability Law

Instead, the Court held that the appropriate method for calculating the AWW was to divide the total number of days the employee worked over the previous 52 weeks by five, representing the employee's five-day 40-hour work week, and then divide his total earnings for the previous 52 weeks by that number, despite the employer?s claim that such a method of calculation would result in a windfall to the employee by providing more in temporary total disability benefits than he would have earned as regular wages.

The Court noted that it was difficult to characterize the windfall as a ?financial bonanza? for the employee after he suffered two crushed ankles resulting in a partial amputation of one of his legs due to a 16-foot fall from the raised bed of a truck. Significantly, the only evidence introduced to prove the employee?s AWW was his own testimony, his payroll records and W-2 statements, and his union contract. The employer failed to introduce any evidence to rebut the employee?s estimates of the number of days he had worked or to show why his method of calculating his AWW was impractical.

There is a very important lesson to be learned from Sylvester: when there is a dispute concerning a full-time employee?s AWW and there are a significant number of days on which the employee did not work during the 52 weeks prior to the alleged accident, it would be warranted and wise to procure from the employer some documentation upon which to support the dispute of the employee?s AWW calculations. Otherwise, the argument that the employee?s AWW calculations will result in a windfall will simply fall on deaf ears at the Illinois Workers? Compensation Commission.