It is a basic principle of the Illinois Workers’ Compensation Act that when calculating an average weekly wage for a petitioner who has concurrent employment, and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation. In other words, if a petitioner had a second job, and the employer was aware of that job, then we calculate the average weekly wage using his wages from all employers. The question is how far courts will take the concept of “concurrent employment”.
The Illinois Supreme Court was given the opportunity to address this question in the case of Flynn v. Industrial Commission, 211 2d. 546, 813 N.E.2d 119, 286 Ill.Dec. 62 (2004). In that case, the petitioner worked as an asphalt driver from early Spring through November or December for 17 years. In the off season, the petitioner would work odd jobs. During one of these odd jobs (blowing snow for the local township), the petitioner suffered a severe injury. A dispute arose as to whether to include the wages from the petitioner’s asphalt driving position or to only calculate the wages he earned blowing snow for the township.
Initially, the Court noted that despite being laid off from his position driving an asphalt truck, he had a long and consistent history of rehire as had been the case the prior 17 years. The Court found that his employment relationship was not wholly severed such that his earnings from the employment became irrelevant to the prediction of his lost future earnings and that his employment relationship with the asphalt company remained sufficiently intact such that the claimant’s past earning experience remains a valid predictor of future earning loss. Finally, the Court found that his AWW must include his earnings as an asphalt driver and for the position for which he was currently doing.
It is clear that the Supreme Court took an expansive view of the term “concurrent employment.” This provides some historical context for the rationale of the Appellate Court in the recent decision ABF Freight. The Court in Flynn did not give any additional direction to what it means when it stated that the “employment relationship remained sufficiently intact such that claimant’s past earning experience remains a valid predictor of future earning loss,” but the disagreement will turn into a factual dispute regarding the concurrent employment. In any event, Employers should heed this advice: Be aware of your employees’ work activity – all of it! – as you may end up paying for more than what you think you’re bargaining for.
Thanks to I&F attorney Frank Johnston for the reminder and update. Frank works out of the Champaign office and is a member of the Champaign County Bar Association, Vermilion County Bar Association, and a founding member of the Young Lawyers Network and Champaign County Young Lawyers division. He has presented topics to the Champaign and Vermilion County Bar Associations.