Overtime Pay Lost After a Work Injury May Be Recovered as Temporary Partial Disability (TPD) Benefits
One of the objectives of the Illinois Workers’ Compensation Act is to ensure the financial security of workers injured and disabled as a result of on-the-job injuries. Although the law provides the injured worker with weekly paid benefits known as temporary total disability (TTD) and compensation for permanent partial and permanent total disability, there are limitations and in many cases exclusions on the amount of compensation the injured worker could receive for missed overtime hours after the injured worker became partially disabled. Fortunately, injured workers are finding a remedy for some of that lost overtime income with a claim for temporary partial disability benefits (TPD).
“I’m truly shocked at how many insurance claims adjusters deny this pay to injured workers,” said Christopher Mose, Katz, Friedman, Senior Trial Attorney.
Attorney Christopher Mose successfully recovered TPD benefits for lost overtime for an employee of Komatsu Mining Systems in Peoria, Illinois. In that case, the employer refused to pay the injured worker and at trial denied responsibility under the law. The arbitrator awarded the injured worker over $7,000 in TPD benefits as the evidence established the employer limited him from working overtime hours during the temporary period he was restricted as a result of the work injury.
Typically, temporary partial disability benefits become available to the injured worker if they are provided work on a limited or light duty basis for a temporary period of time while the worker recovers from the injury. In many cases, the injured worker receives wages for the hours worked and in some cases temporary partial disability benefits for a portion of lost wages that they would otherwise be able to earn if working full duty. Although many employers offer light duty on a temporary basis to injured workers, the employers, with or without their own medical opinion, limit the workers to 40 hours or less, prohibiting the partially disabled worker from working overtime. Illinois Workers’ Compensation Law provides that temporary partial disability benefits under Section 8(a) of the Act may be available. This Section provides:
When an employee is working light duty on a part-time basis or a full-time basis and earns less than he or she would be earning if employed in the full capacity of the job or jobs, then the employee shall be entitled to temporary partial disability benefits. Temporary partial disability benefits shall be equal to two-thirds of the difference between the average amount that the employee would be able to earn in the full performance of his or her duties in the occupation in which he or she was engaged at the time of the accident and the gross amount which he or she is earning in the modified job provided to the employee by the employer or in any other job the employee is working. 820ILCS305/8(a).
The difference between the average amount that the employee would be able to earn in the full performance of his/her duties in the occupation in which he/she was engaged at the time of the accident and the gross amount which he/she was earning in his/her light duty job is the overtime hours he/she was not allowed to work. It is irrelevant whether or not the Petitioner would have wanted to work those overtime hours had he not been injured. He would have worked these hours had he not been injured, and he was not allowed to work them because of the injury. Thus, under Section 8(a), he is entitled to two-thirds of the difference between his lost overtime pay and the wages he received on light duty. For TPD benefits, the calculation of lost overtime is not limited to straight time pay. Unlike TTD, Section 8(a) does not limit TPD to two-thirds of the average weekly wage. The lost overtime pay is therefore calculated at time and a half. Spencer v. State of Illinois, 12IWCC0756; McBride v. State of Illinois-Ludeman Development Center, 09IWCC0914.
Although this provision in the law is well established in both the Statute and numerous trial decisions, many injured workers do not receive a portion of their lost overtime pay while working light duty. Many employers improperly refuse to pay TPD benefits. Katz, Friedman lawyers have successfully recovered TPD benefits against Ford Motor Company in Chicago, Caterpillar Corporation in Decatur, John Deere in Moline, Stellantis/FCA/Chrysler Corporation in Belvidere, Hamilton Sundstrand/Collins Aerospace in Rockford and others.
If you, your family or coworkers have a question about whether you may be eligible to recover a portion of lost overtime following a work injury or any other question about your rights under Illinois Workers’ Compensation Law, please contact the attorneys at Katz, Friedman for a free consultation. We look forward to helping you.