Legal Question in Workers Comp in Illinois

If I am injured at work and the company Dr. puts me on light duty,can my employer cut my work hours to 40hrs./week when I normally work 60hrs./week? And not give me any wage compensation ,just take care of the medical expenses?

Asked on 9/24/10, 12:15 pm

2 Answers from Attorneys

Jason Marker Marker & Assosiates, Attorneys at Law, P.C.

No. If you normally work 60 hours a week, and your doctor says you can only do light duty, then your employer has to accomodate that light duty within the same amount of hours you were working (on average) before the accident. Therefore, if they are only allowing you to work 40 hours per week, you would be entitled to what is called "maintenance" or payment for 2/3 of the difference in pay (2/3 of 20 hours x your average weekly wage). The bottom line is you are entitled to the difference in pay unless the employer can find a light duty position for the same 60 hours you were working before. If I can be of any further assistance, please let me know.Good luck.

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Answered on 9/29/10, 12:50 pm
Matt Belcher Belcher Law Office

The answer to your question is more complicated than it seems.

The issue that needs to be addressed in every workers compensation case is the amount of your average weekly wage (AWW).

Any work more than 40 hours is considered "overtime" for hourly workers. If that overtime is mandatory then your average weekly wage is 60 hours multiplied by your straight-time rate, assuming you worked 60 hours per week for the last 52 weeks.

(FYI - some arbitrators are requiring that the overtime be mandatory AND regular, meaning it happens reliably, but that is beyond the scope of this question.)

If your overtime is mandatory and your employer agrees with you, then your average weekly wage AWW = 60 x $xx/hr. You can now skip down to the TPD section below to calculate your weekly benefit.

Most employers however will claim that the overtime is NOT mandatory therefore your AWW is 40 times your straight-time rate (again, assuming you did in fact work 40+ hours for the last year).

To determine if the employer is correct, you need an experienced attorney and a lot of fact specific information regarding your job.

Take Notice - Your average weekly wage is a vital part of your claim because that is the number that is going to be used to determine (among other things) your permanent injury settlement. In worker's comp, your settlement is generally determined by "weeks of pay".

For example, if you cut off your index finger at work then you get 43 weeks of benefits. Almost every body part has its own schedule and your entire body is 'worth' 500 weeks of benefits. (Because amputations are seldom the cause of disputes there is a certain nuance to determining the extent each case-by-case permanent loss, which makes it wise to consult with an attorney.)

TPD benefit calculation:

If you cannot return to your prior job duties and you have not finished your medical recovery and your employer is providing you with light duty (of a full-time or part-time basis) you may be entitled to temporary partial disability benefits (TPD).

TPD is for when you are still healing and working light-duty (again, on a part-time or full-time basis) BUT earning less than you would earn working prior to the accident.

The TPD check is supposed to be equal to 66% of the difference between the average amount you would earn at your regular job and the NET amount of the check you are getting now.

Here is the classic example provided by the Commission:

"A worker was earning $500/week at the time of injury. While the worker was off work and recuperating, the pay for the job increased to $525/week. The worker returns to a light-duty job and, after taxes are deducted, takes home $200/week."

Pre-injury average weekly wage (AWW) = $500

Current AWW of pre-injury job = $525

Post-injury take-home pay = $200

Wage differential = $525 $200 = $325

TPD = $325 X 66 2/3% = $216.67/week

I hope that this helps a little but because each situation is so unique, it is always a good idea to consult with an attorney in person. Luckily almost all workers' compensation attorneys offer a free initial consultation.

Good luck,

Matt Belcher

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Answered on 9/29/10, 12:58 pm

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