mr crow mr mr or you're on video as your audio working for you mr crow yes it is your honor ok mr mr yes it is your honor ok very good morning good morning good morning both of you time i had ever done this i'm afraid that my eyesight is not what it used to be and i did make some mistakes i don't believe the mistakes were of substance and i think the proper sanction or remedy would be an bonus instant profit sharing it also appears in the documentation is simply instant profit sharing as indicated we believe that this constitutes a bonus under section ten and should  in considering the claimants average weekly wage because the bonus was provided in consideration for work performed pursuant to a collective bargaining agreement so the question is how is this case distinguish  production of volume of steel and the quality of that volume so it was not a group or a collective payment it was a singular collective made specifically to that person for or the for what that person produced but i think more significantly than that is that the bonus that was paid in article or was subject to the collective bargaining agreement between the  employees union and the employer that made it an enforceable contractual right in this particular case there is disclaimers all over the place indicating that it's a discretionary  discretionary bonus and it is not something that can be a for enforced in court as a contractual right i believe that that really is the crux of this case is the fact that this is not a  in the commission's determination will not be disturbed unless it is contrary to the manifest with the evidence this i believe is the standard of review in this case this is a factual case and the commission made a determination on the facts this is not a case involving a law or the interpretation of the statute and i do not believe it requires an interpretation of the statute i think that you've made this court has made it very clear about the law concerning bonuses  case and i think that the article i case is right on point and i think that it certainly could be applied to this case i just think our kaleri is distinguishable because in that case that was a contractual right accruing to the employee but here  there was no right no obligation by the employer they could give the bonus they could cancel it they could do whatever they want there was no contractual obligation is that the gist of your position yes it is your honor mr crow i have a question this comfortable with now that maybe form d over substance as we decide this case and the act but it does seem to create some questions in my mind quick i wouldn't say that they were created as a wage i think they created that is that they viewed as income and i think that there's a there's a distinction between income and wage ok and what form it takes you know although that would be my benefits were paid the only matter an issue is whether the compensation paid to the decisions under the eps or the i would be i p s program should be considered a section  on us or a way to and including the calculation the case proceeded to arbitration before arbitrator flora's in december of two thousand and seventeen which are florists found that the i p compensation where it was wages in should be included in the average weekly wage calculation menards filed a timely review of the arbitration decision and we went before the commission in february of two thousand and nineteen at that time the commission had reversed the arbitrator or finding that the i p s program was in fact the section ten bonus the reason was is that they followed article and that  it was a this was not something that was aid directly to the employer he for work that the employee performed but it was a collective bonus for the entire department in which he worked the entire they collectively had not achieved their profit goals then nope nope a bonus would have been well did they achieved the goals in this case yes they  did so how would you respond to the argument that can be made at the payments or sort of in consideration for the work that was performed wasn't well yes but as i said not individually but a collective and i think that that's where we draw the distinction that we got from mark o'mara is that it has to be individual not collect but i think most important as i keep going back to that one thing is that it's not it's not something that can be enforced in court it is not a it is not a contractual right disclaimers you've seen them in the exhibits there's disclaimers all over the place with respect to that and if they state that it can be changed it c know that's a really good question and it has never been litigated but i mean it if let's say for instance the entire group got together and said hey we matter goals and we're entitled be paid then perhaps you'd have a point but i think individually no because i think that the disclaimer and i think that this is that this is across the board with all the other cases that i cited from other areas of the law in which they talk about discretionary payments and i think that we really have to focus on the term discretion and what it really means this is something that is within the discretion of menard's they can pay it if they want to they don't they they don't have to pay it if they don't want to you  is what lawyer he has to do the issue is the document provides the program as discretionary they employer has the right to amend it or cancel it in whole or in par he can modify it he can reduce it he can withhold the employer can withhold the awards doesn't make any difference what the employee has to do to get it or the group s to do to get it and that's my argument in this case and that is what i've actually that's what i pointed out in all of the other cases that i cited that are outside the workers compensation realm that that when you have something that is discretionary and when someone who to stick around and then before the bonuses do they fire oh and happen was he sued for the bonus and the court was very specific not finding that he was entitled it but he was entitled to the payment based on very briefly on the standard of review any want to if there are any one of three reasons to affirm judge barnhart's decision trying to get to know both standard of review one there simply were no facts in dispute in this case and that's confirmed by the sign stipulation of the parties saying and i quote the legal question presented is whether the lump sum payment is included in the calculation of deceit and average weekly wage we know that questions of law are reviewed to know number two this is involving the matter of statutory construction of section ten just like fairest and united airlines dealt with statutory construction so does this we are interpreting bonus and actual earnings as defined inside action ten of the act and number three we know that when  earnings and not a gratuitous bonus properly included in the calculation of the average weekly wage that was it works or is that it is an inference or is that a legal conclusion right i believe the facts were undisputed in this case as as set forth in the briefs of the parties and it was the application of the lot to the facts and interpretation and that's a conclusion at and interpretation of section ten of the act in terms of actual earnings bonus and my other areas that it's not an provided a financial incentive program as part of its compensation plan to its employees it was a program designed to and symbolize the work of its employees in order to increase its profits the stated goal of the program was to provide employees with a personal stake in their work unit and to be partners in profit with the nurse having financially capitalized on the program minorities now seeks to deprive mrs alvarado of proper your wards number one it's totally discretionary and does not constitute a guarantee of any particular amount of compensation in it does not contain a create a contractual relationship so why don't those disclaimers take this out of a an entitlement a wage that he's entitled to very good question justice hoffman and if i can respond  st of all i think that the brochures and the testimony of minorities h r a coordinator have to be taken in totality we can't just isolate the disclaimer on page seven in small print of a seven page brochure that's handed out to its employees but with regard to that specific question the fact is based on the totality of evidence this program was discretionary in name only this was nothing more than a litigation posture belied by the record there referring to this fine print on service on page seven but the fact is how did this program function in practice there's not a paid in consideration of work the deceiving performed and as arbitrator florists found and justice bernhard the i p s payment issue wasn't discretionary at all once m met the eligibility requirements which he did in two thousand and eleven and then received compensation on february th two thousand and twelve i would also point out that mr  union non contractual employee he was an employee at will of menard's so arguably menorahs had the discretion to reduce his hourly pay which we know was sixteen in and out the fact that they had the discretion to that's a little bit different than the characterization of a bonus i pod i'm sorry could you repeat that your honor i said that's a little different than the determination of whether a payment is or is not a bonus wages wages are wages whatever he's being paid he's being paid certainly they could have reduced it and then the calculation would have been entirely different under the act but that's not the issue he here is whether the amount of money paid for similar to this program was or was not a bonus when the stats and we and we submit to the court that it was not a bonus again based on the totality not just the other words my only argument is his hourly pay is discretionary since he's an at will employee the other thing is i want to mention because justice often us this an earlier mr crow it's the crux of his argument is he cites or roessler for the proposition that you have to be a union employee to receive incentive pay paid in consideration for were performed no i won't i don't  i think it's argument is it it's not a bonus it's not discretionary when it's contractual mandatory and under the collective bargaining agreement the bonus in the earlier case was mandatory and in forcible is a contractual matter they had that's his argument i think ok well we would submit to the  question what do you make of the language that's contained in the plan manual that specific restates program does not create a contractual rescue chip or any contractually enforceable rights between the employer and  does that bear on the argument might my response to that justice hudson would be this is in the contract case this is a case about what was earned as defined under section ten and arcelor supports our position in this regard the fact that they say it's discretionary that they say there's no contractual right to it doesn't make it so we know there are an abundance of cases before the commission every day on employer versus independent contractor if an employer could have a petition or sign a document that says it's an independent contractor we still look at all the touchdowns to determine whether in fact it's an employer employee relationship or independent contractor and when you look at everything admission was the woman who communicated this program to employees she told us it wasn't a gratuitous benefit and it was running she told us it was paid in consideration for the work performed these words have meaning what was equally as important is what she didn't tell us mr crowe never asked her one question about what she communicated to employees or how she described the program one has to ask why no questions were asked like that as to specifically the contractual nature i don't believe arcelor ruling is limited to calculating average weekly wage for incentive pay paid under collective bargaining agreement because if that looked the case we would be setting up a conflict another words if you had the exact same program for one company and there's a collective bargaining agreement so there's a contractual obligation that's included but for the non contractual at will employee of a company on the same program that would under mr across position and menards position that would not be included and we know i know that the workers compensation statute is remedial in nature and that couldn't be possible here so we don't believe that arcelor proposition stands for the fact that you have to have a contractual right for it to be enforced the test is whether d manual are you saying then that somehow that language can be overridden by the course of conduct between the company and the employee saying that that can be overridden by looking at the totality of the circumstances of the circumstances let's look at the entire brochure as to whether an employee he would you know were talking about what minorities set but the employees perspective i humbly submit is given equal unit meetings what encourage the unit members that the twenty member fleet mechanic unit in plano if mr all rose to meet the profits to go to work harder to meet the production document i'm just telling you that as a matter of fact in this case the reality is that the discretion was never exercised and when you look at the totality of factors this was communicated as an incentive plan there's no doubt about that i don't think there's any serious doubt that it was paid in consideration for the word reform and therefore it meets the definition of actual earnings now the question is is it a bonus if we look at all menards claims it's a bonus ironically in all of the literature that's communicated to the employees the word bonus doesn't appear anywhere it wasn't it the fact is it wasn't a bonus because it was never communicated as such and seven page panel dedicated entirely to this program had their dollar sign and on each page there's a big dollar sign on every one of those ages and so what are they trying to they're trying to communicate that look you're a partner in profit you work hard you're going to get paid for and that's confirmed with mr over auto because he works seventy eight years for the company the st year he were a part time and then he left for a brief period of time and returned he was paid ikea's payments for seven consecutive years uninterrupted increasing amounts his hour let me ask you why was he not the bonus in two thousand he was not paid your honor because one of the eligibility requirements is you have to work one thousand paid hours during the w two year more time and he did not make that you know is there any significance to the fact that in this case he was paid seven thousand dollars for the previous year in february a month and a half before y so mr overawed it was payment of seven thousand seven hundred and change paid on february th was because he earned it in the two thousand and eleven calendar year on other words he fulfilled all of the eligibility requirements in the previous year so it was paid within the statutory period the only other point i would make is mr true is incorrectly stated that arcelor is based on individual performance it's based on the crew not the in my argument chief and that is the policy considerations here is i and as i did touch upon the fact that just about every a lot of the a list quite a few businesses in the state of illinois who have  programs like this in place should a decision be made contrary and stating that these become a part of the average weekly wage across the board that will increase the average weekly wage for thousands of employees it will one hundred dollars a week over twenty five years that's one hundred thousand dollars the present guest that was about a one hundred and twenty thousand dollars ok well i'll try that across for every accident that takes place in the state of illinois with one of these big box companies it's like i don't want to situation when the bonus was not paid that is not true she did state that there were some stanzas where she was aware of where the bonus did not pay because the because the profit was not with the profit was not earned by the group program getting back to the standard a review i think that what we went in terms of questions of fact you certainly had the commission and had to go through all of the contracts and they had to make determinations there were fact that questions as to whether or not as to the in fact as to the significance of the of the language and they made determinations based on that this is not the kind of that was if the other could be united airlines case was whether or not disability benefits and economic disability or another type of disability d and whether or not the premiums that were paid for her insurance should been included in a rate wage you know one of the things is that we call them partners in profit not that it's just it's true you know there is not in a ploy or around who does not want his employees to work hard there is not an employer who doesn't want their employees to it does not incentivize their employees you know it's not that i'm not going to work hard for you because we're not getting a bonus you know that we've added this is something more this is what keeps people there's no question it's an incentive we call it that it's in the literature the only question the thing i think that this court must focus on when it goes back to deliberate in this case is that this was not a contractual right and that this this petitioner did not have could not enforce this and as they could in the arc of our case the fact that there's a union involved here is is not relevant to the