Case name: Martin v.
Illinois Dept. Of Transportation, 13 ILWCLB 184 (Ill.Ind.Comm. 2005).
Ruling: The Commission held
that a highway employee’s overtime wages should be included in his average
weekly wage calculation, as evidence indicated that the claimant was required to
work such overtime was as a condition of his employment.
What it means: Where a union
contract governing work rules provides for an employee to be disciplined if he
fails to respond to overtime calls from the employer, such overtime should be
included in the AWW calculation.
Summary: A highway maintenance
employee filed a benefit claim for neck and back injuries sustained when a
falling tree struck him at work. The claimant testified that his paychecks
reflected a base salary, any overtime earned, and additional salary if he worked
in a supervisory capacity as a lead worker. He stated he normally worked a 40
hour week, but from Nov. 1 until March 31 of each year, the “snow and ice
period,” he was required to work overtime, if called, during inclement weather
conditions. Pursuant to union contract, an employee’s failure to respond to
such a call would result in disciplinary actions. The claimant testified that
during the year preceding the injury, he frequently worked as a lead worker and
also worked substantial overtime during the snow and ice periods. Based on the
claimant’s testimony, pay stubs and case law, the arbitrator included overtime
in the AWW calculation, as the claimant was required to work overtime as a
condition of his employment. Upon review, the Commission affirmed the award
with modification to the PPD award.
In Edward Don C. v Industrial Commission, the appellate
court found that in order to include overtime earnings in the calculation of the
AWW, evidence must establish that the claimant was required to work overtime as
a condition of his employment, he consistently worked as a set number of
overtime hours each week, or the overtime hours worked were part of the regular
hours of employment. In the instant case, a union contract governed the work
rules involved and the claimant would have been disciplined for his failure to
respond to inclement weather calls. Under these circumstances, the overtime pay
at the straight time rate must be included in the calculation of the AWW.
