unemployment compensation does not constitute “earnings” under section 10 of the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. § 910 (1976))
How later courts described this case
- unemployment compensation does not constitute “earnings” under section 10 of the Longshoremen’s and Harbor Workers’ Compensation Act (33 U.S.C. § 910 (1976))
- amount claimant received weekly multiplied by 52 weeks resulted in windfall
- average weekly wage properly calculated excluding overtime pay
Written by the judges who cited it.
Distinguished
Distinguished by Cook v. Industrial Commission, 231 Ill. App. 3d 729 (1992)
McCartney v. Industrial Comm’n (1988), 174 Ill. App. 3d 213, 529 N.E.2d 250, and Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 885, 536 N.E.2d 1008, upon which claimant relies, are distinguishable.
The opinion
JUSTICE McCULLOUGH, specially concurring:
I agree with the result, but not the reasons therefor.
Section 10 provides four methods to determine the average weekly wage.
The first method determines the “actual earnings” of an employee who works 52 weeks prior to the injury date, with no lost time.
The second part of this same sentence applies to the same employee who but for lost days would have his average weekly wage determined pursuant to the first method. If he loses five or more calendar days during the 52-week period, whether or not in the same week, the time lost must be deducted and the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time lost has been deducted.
The above methods are included in one sentence and the average weekly wage definitions apply to the full-time employee.
The next sentence in section 10 provides a third method to compute “weekly average wage.” Where the employment prior to the injury extended over a period of less than 52 weeks, you divide the earnings by the weeks or parts thereof during which the employee actually earned wages.
I submit that the “average weekly wage” of an employee determined pursuant to the first three methods would be the same. There would be a slight difference for the employee who lost less than five days, i.e., one to four days.
The next sentence provides a fourth alternative and applies to employees:
(1) recently employed;
(2) whose employment is of a casual nature;
(3) with special terms of employment.
The weekly wage of this employee is determined by determining the wages earned by an employee “in the same grade,” employed at the same work, for each of 52 weeks for the “same number of hours per week,” for the same employer. This section appears to be legislative response to the supreme court’s decision in Vaught v. Industrial Comm’n (1972), 52 Ill. 2d 158 . This method is to be used only when “it is impractical to compute the average weekly wages” by application of the three other alternatives.
It can be argued as impractical from a financial burden standpoint of the employer to apply the first three methods. The third method does fit the facts of this case. The employment extended over a period of less than 52 weeks prior to the injury. That the employee historically worked for many years for the same employer does not require a different result. As stated in Larson:
“[T]he purpose of the wage calculation is not to arrive at some theoretical concept of loss of earning capacity; rather it is to make a realistic judgment on what the claimant’s future loss is in the light of all the factors that are known.” 2 A. Larson, Workmen’s Compensation Law §60.21(c), at 10 — 667 (1987).
As stated above, the average weekly wage in this case should be determined by the third method. The employment extended over a period of less than 52 weeks prior to the injury. The time lost is deducted and the earnings of the “period” (the time of employment) are “divided by the number of weeks and parts thereof remaining after the time lost has been deducted.”