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Archive for the ‘overtime’ tag

Ruling Regarding Overtime in AWW Overturned

August 28th, 2013 at 2:40 pm

A ruling regarding an Average Weekly Wage (AWW) calculation in Illinois that included overtime was overturned in July, according to the Illinois Workers’ Compensation Law Bulletin. The ruling will affect any workers’ compensation claimant who has logged a considerable amount of overtime hours, especially if those hours were not consistent or considered mandatory by the company at which the accident occurred. The case involved a worker at an excavation company. The claimant, according to the Bulletin, is a union machine operator, and suffered an injury related to an on-site accident.  Ruling Regarding Overtime in AWW Overturned IMAGE

The operator, according to the Bulletin, logged overtime hours on 60 days in a 73-day period. That’s more than 80 percent of the days considered by the ruling. Initially, a judge ruled that the operator’s overtime hours should be considered when determining his Average Weekly Wage for workers’ compensation benefits. “Upon review,” however, “the Commission modified the arbitrator’s decision to find the claimant failed to prove that his overtime was mandatory or that he worked overtime on a consistent basis.” Even though the claimant worked overtime more than 80 percent of the days in the period considered, this isn’t considered “consistent.” One good reason that the Commission reversed the ruling was due to a lack of evidence presented on the part of the operator.

The importance of having an experienced workers’ compensation lawyer in the courtroom can’t be understated. One reason for the decision reversal was because “the defendant’s witness testified that there was no consequence for not working overtime.” Yet the decision to overturn was not unanimous. “The dissent noted that although the claimant gave a recorded statement to the claims adjuster that overtime was not mandatory he testified that he meant that no one came to employees with a daily demand to work overtime.”

If you or someone you know has been injured in the workplace, the most important first step is to seek the counsel of a qualified workers’ compensation attorney. Don’t go through it alone. Contact our offices today.

 

 

Driver fails to deliver convincing evidence that overtime was mandatory

February 20th, 2013 at 1:13 pm

LaraAccording to a recent issue of the Illinois Workers’ Compensation Law Bulletin, a driver stated he had been struck in the face while on the job by an office door.  He was awarded temporary disability benefits and medical expenses.

However, issues arose when the parties were attempting to determine the average weekly wage.  It was not clear whether or not hours worked in excess of eight hours a day would be classified as mandatory overtime.  According to evidence, truck drivers were required to complete additional assignments after returning to the terminal.  These additional assignments would push the drivers over the eight-hour straight work day.  Drivers had no choice in the matter of completing the additional assignments, unless a driver with less seniority was present and had not completed the eight-hour day.

It was reported that if the driver refused to accept the additional work, it was possible they could be subject to termination or disciplinary action.

The arbitrator relied on the collective bargaining agreement and the policy of the defendant in order to prove that the hours worked by the claimant were not mandatory.  The arbitrator explained that all drivers were not subjected to immediate termination/disciplinary action if they did not accept overtime hours.  Therefore, these overtime hours were not mandatory.  It is true, however, that if no discretion was permitted and drivers were subjected to immediate consequences, such as termination, the ruling would be much different.

In the end, the Commission determined that the claimant’s average weekly wage would be calculated without the inclusion of the overtime hours.

In this case, it was determined that the claimant was not being subjected to mandatory overtime hours.  In many other cases however, this may not be completely true.  If you have found yourself in a situation in which you are working mandatory overtime hours and they are not being included in your average weekly wages in the event that you have suffered an injury on the job, you should contact an experienced Illinois attorney immediately to explore your options and help you fight for your rights.

Nurse’s Overtime Included in Wages for Purposes of Workers’ Compensation

December 15th, 2012 at 8:32 am

The Illinois Workers’ Compensation Commission recently decided a case involving the issue as to whether a nurse’s overtime pay should be included in her average weekly wage calculation for the purposes of her workers’ compensation claim. The arbitrator concluded that as a result of the nature of the nurse’s mandatory overtime over the 52 weeks prior to her injury, her overtime pay should be included in computing her average weekly wage. Furthermore, the arbitrator found that the claimant nurse had sustained a 30 percent loss of the use of her left arm as a result of her on-the-job injuries. The Commission affirmed and adopted the arbitrator’s decision.

In this case, the claimant worked as a licensed practical nurse and mental health technician at an Illinois mental health facility. She suffered a shoulder injury on the job when a mentally disabled adult attacked her and threw her to the floor. The nurse testified that overtime was mandatory; she could either volunteer for a particular overtime shift, or she would be assigned a shift. If she failed to work overtime, she could be disciplined and even terminated by her employer. Based on the claimant’s testimony, as well as her wage records from the year prior to her injury, the arbitrator found that the claimant’s overtime wages should be included in her average weekly wage for the purposes of computing her workers’ compensation benefits.

The arbitrator also examined evidence concerning the nature and extent of the claimant’s shoulder injury. Her injury required surgery involving four separate procedures and extensive physical therapy. The claimant testified that she continued to experience pain, weakness, and limited range of motion in her left arm, which impairs her ability to perform her job duties. As a result, the arbitrator found a 30 percent loss of use of her left arm.

If you have been injured while at work, you may need the assistance of an experienced Illinois workers’ compensation attorney. Contact our office today for a thorough assessment of your claim.

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