On June 27, 2022, the Illinois Appellate Court Workers’ Compensation Commission Division (4th District) issued a Rule 23 Decision in the case of City of Springfield v. Illinois Workers’ Compensation Commission, 2022 IL App (4th) 210338WC-U. While the court made rulings on PPD and TTD, the rulings on AWW (Average Weekly Wage) were the most interesting.
Petitioner was employed as a Captain for the Springfield Fire Department. Petitioner claimed PTSD and other psychological trauma as a result of responding to a traumatic medical call. As a result of the injury, Petitioner was not able to return to his pre-injury job as a Firefighter.
At trial, the parties stipulated on the Request for Hearing form to an average weekly wage which only accounted for Petitioner’s wages with the Fire Department. At trial, Petitioner testified that he had concurrent employment at a local funeral home in the year preceding the accident. The wages from his second job were not included on the Request for Hearing form, there was no dispute regarding wage on the form, and no dispute arose when the Arbitrator read the form into the record at the onset of the hearing.
Despite the fact that the wage issue was not raised by either party at hearing, the Arbitrator added Petitioner’s wages from the funeral home to Petitioner’s average weekly wage. This made the wage higher than the wage stipulated by the parties. The Arbitrator’s Decision regarding the average weekly wage was affirmed by the Commission.
The Appellate Court took exception with the Petitioner’s wages at the funeral home being added to the Petitioner’s average weekly wage. In doing so, the Court relied upon Walker v. Industrial Comm’n, 345 Ill. App. 3d 1084 (2004). In Walker, the Court held that the Commission lacked the power to enter an award of TTD below the amount that Respondent claimed on the Request for Hearing form. The Court noted that, “The language of Section 7030.40 (now codified at 50 Ill. Adm. Code § 9030.40) indicates that the Request for Hearing is binding on the parties as to the claims made therein.” The Court agreed that a stipulation in a Request for Hearing form is considered a “settlement” of the questions in dispute in the case.
The Court noted that Section 10 of the Act requires an employer to have knowledge of concurrent employment for the earnings to be included in Petitioner’s average weekly wage. Petitioner simply tried to argue that he had worked concurrently for both employers for fourteen years, insinuating that the Fire Department must have known about the employment. The Court rejected this argument and stated:
“To assume that Respondent had knowledge of Claimant’s work at the funeral home because he had been there a long time would require one to speculate that the subject must have been discussed at some point during that time. Similarly, it would be speculation to conclude that the funeral home had contacted Respondent simply because it was able to do so. An award under the Act cannot be based on mere speculation. A.O. Smith Corp. v. Industrial Comm’n, 51 Ill. 2d 533, 536 (1972).”
Oftentimes, Respondent may engage in an attempt to prove a negative at trial, such as proving lack of knowledge of notice or lack of concurrent employment. The decision in City of Springfield is a good reminder that a Decision cannot be based on speculation and that the burden is on Petitioner to meet every element of a claim. The Decision also highlights the importance of stipulations made prior to trial, which should not be disturbed by the tribunal and essentially represent “settlements” of stipulated issues.
If you have any questions regarding calculation of an average weekly wage or whether concurrent employment should be included to your wage calculations, feel free to reach out to our attorneys at Nyhan, Bambrick, Kinzie, & Lowry.