Our firm has run into this on a couple of occasions here. There’s no case law in Minnesota yet. It’s our position that unless the volunteer position actually provides some real vocational benefit to the employee in terms of job skills, it’s not vocational rehab. It’s also our position that since the volunteer work is unpaid, it’s not economically suitable, and actually interferes with the employee’s efforts to find real alternative work.

Jen Yackley
Meuser & Associates, P.A.

FYI, one dirty little secret of Illinois work comp–the vast majority of wage loss claims are never, ever paid as wage loss.

Almost all such claims are “wage loss” in name only; the weekly benefits are always lumped up to an enormous sum of money.

As I have said many times, the spiraling cost of wage loss claims is another dirty little secret of Illinois WC—we recently had a kid with bilateral CTS; the “wage loss” value was about $900K.

He had surgeries to his wrists that wouldn’t provide any permanency in most states—in Illinois, he has a well-paid job and is owed almost a million bucks. What hogwash.

I don’t think anyone truly understands how much these cases are going to cost until they start to land.

The current wage loss system is unique to Illinois. As case law has shown, it really has nothing to do with actual lost wages. Once an award is entered, it pays for life and is almost impossible to reduce. This is easily one of the biggest cost-drivers in the system.

How about a wage loss system similar to what other states have (LA, MA, TX, for example)….one that is designed to be a hand up, not a hand out and is based on actual lost wages. The system should be designed to encourage the injured worker to seek employment opportunities. Wage loss should be revised as follows:

Cap on benefits: No more lifetime wage loss awards. Those make no sense. They completely ignore that people eventually retire from the work force. Wage loss benefits should be capped at no more than 10 years of benefits.

Eliminate fixed amount wage loss awards: Wage loss should be just that, a benefit to compensate the injured worker for lost wages. They should be required to submit their wages on a quarterly basis, and benefits paid based on the actual loss of earnings. Injured workers should be required to cooperate fully with vocational rehabilitation efforts during the entire period that wage loss benefits are payable.

Base the wage loss on the AWW at the time of the injury: Case law strikes again. Wage loss benefits are currently based on a mythical standard of what the injured worker “would have been earning”, but for the work injury. There is no logical basis for this standard. I have litigated wage loss cases where the employer went out of business and the courts ordered an inflated AWW based on what they “would have” been earning but for the work injury. If they didn’t get hurt at work, they would have been laid off just like everyone else at the company!

Mark Walls

Manager of LinkedIn group: WORKERS COMPENSATION FORUM

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As I have indicated the current amputation minimum ends or become superfluous at about $40K per year. Most folks will have an AWW less than the amputation minimum.

We feel you still have to pay the minimum, if it is an amputation.

That was the specific purpose of the 2005 Amendments.

If a guy/gal at a Target working part-time making $45 a week lost an index finger, they got about $1,935.00 under the old law.

That wasn’t considered enough money. Under the new law, the same amputation would bring $21,441.98.

820 ILCS 305/8 (b)

4.1. Any provision herein to the contrary notwithstanding, the weekly compensation rate for compensation payments under subparagraph 18 of paragraph (e) of this Section and under paragraph (f) of this Section and under paragraph (a) of Section 7 and for amputation of a member or enucleation of an eye under paragraph (e) of this Section, shall in no event be less than 50% of the State’s average weekly wage in covered industries under the Unemployment Insurance Act.

This section also indicates death benefits are paid at the same high minimum “mega-rate.”

Gene Keefe

Edward

I also respect and understand what you have said below.

One of my associates, Arik Hetue, whose wife is a school teacher strongly agrees with you and disagrees with me.

I am not saying I am necessarily right and you are both wrong.

I would also recommend school districts change their contracts in light of this ruling.

In my view, I cannot understand how anyone can look at someone whose “annual salary” and gross income on their U.S. and state tax returns is $40,000 and then say it is $52,000 for workers’ compensation purposes.

2/3 of $40K is $26,666.67 or the teacher’s actual approximate annual take-home pay. You replace their expected take-home pay by averaging their actual annual income.

2/3 of $52K is $34,666.67 or about $8K more than their approximate annual take-home pay.

Workers’ comp benefits are supposed to be wage/salary replacement benefits.

If a teacher makes $40K per year and becomes disabled for a single year due to a work-related event, replacing their salary by starting at $52K provides a windfall—they don’t earn that much.

If a school teacher makes $40K per year for the traditional school year and makes $8K during the summer and is disabled for the next entire year, their annual salary for that year is would be replaced by averaging their actual take-home pay of $48K and not $60K.

Again, I understand your point and we will see how this works out in other settings, like police and fire who also don’t work a “whole year.”

I know a Lake Zurich firefighter who works nine days a month. He makes about $52K per year. Like most firefighters, he also has a side business and does well, like a school teacher who works an additional summer job.

If he only worked as a firefighter and if you calculate his average wage by taking out the days he doesn’t work as you suggest in the Washington School ruling, the firefighter’s salary for WC purposes would be about $90K per year. Using that number to calculate TTD isn’t replacing his wages at the time of unforeseen injury that is a major windfall. He would receive more money on TTD that his average weekly income.

I would appreciate your thoughts on why the same theory wouldn’t apply to police and firefighters.

The debate will rage on. Thanks for your input.

Gene Keefe

From a former school teacher and spouse of a teacher, I can definitively tell you that teacher’s summer time is not paid vacation. If you read the employment contracts, teachers are hired for 42 weeks per year and can elect to be paid just over those 42 weeks (with no pay over the summer) or over 52 weeks. It is a choice by the teacher. If a teacher does summer school, this is additional employment. The act says you calculate on the basis of weeks actually worked and teachers only work for, and are only contracted for, 42 weeks per year.

The paid vacations are the Christmas, Easter, veterans holidays, etc. I have litigated this issue on multiple occasions, and the arbitrator always agrees with my analysis on the basis of the contract being a 42 week period.

For your consideration.

Chris Doscotch
Janssen Law Center