Cook v. Industrial Com'n

• Decision Date: 01 July 1992
• Docket Number: No. 3-91-0609WC,3-91-0609WC
• Parties: , 173 Ill.Dec. 122 John E. COOK, Appellant, v. The INDUSTRIAL COMMISSION et al. (Seneca Petroleum, Appellee).
• Court: United States Appellate Court of Illinois

Page 746

596 N.E.2d 746

231 Ill.App.3d 729, 173 Ill.Dec. 122

John E. COOK, Appellant, v. The INDUSTRIAL COMMISSION et al. (Seneca Petroleum, Appellee).

No. 3-91-0609WC.

Appellate Court of Illinois,

Third District.

July 1, 1992.

R. Wayne Harvey and Floyd C. Dailey, Harvey & Stuckel, Chartered, Peoria, for John Cook.

Charles D. Knell and John F. Kamin, Quinn, Johnston, Henderson & Pretorius, Peoria, for Seneca Petroleum.

Justice RAKOWSKI delivered the opinion of the court:

The claimant, John R. Cook, appeals the circuit court's decision confirming the Industrial Commission's decision which awarded claimant temporary total disability (TTD) benefits pursuant to the Illinois Workers' Compensation Act (the Act) (Ill.Rev.Stat.1987, ch. 48, par. 138.1 et seq.) At issue is the correct method for calculation of average weekly wage. We affirm.

The pertinent facts are as follows. On July 19, claimant, a laborer in the employ of Seneca Petroleum (the employer), suffered a work-related injury. During the year preceding claimant's injury, claimant worked during 24 different weeks for the employer, and over the course of the preceding year, had earned a total of $10,266.42 for non-overtime work. During this time period, claimant worked only three full, 40 hour weeks; the majority of weeks claimant worked less than five, full days and less than 40 hours a week, often working less than an eight-hour day.

Dividing claimant's total of $10,266.42 by 24, the number of weeks during which claimant actually worked, the Arbitrator found that claimant's average weekly wage was $427.77. The Commission ruled consistently with the Arbitrator on the amount of claimant's average weekly wage, and the circuit court confirmed the Commission.

Claimant contends that the decision of the Commission was against the manifest weight of the evidence, contending that the Commission should have divided claimant's total wages by $15.53 (an amount claimant asserts was his hourly wage), to arrive at a figure of 661.07 actual hours worked. Then, according to claimant, 661.07 should be divided by 8 (representing a full, eight-hour work day), to arrive at a figure of 82.63 (representing the number of full days claimant worked). 82.63 should be divided by 5, (representing the days in a full week), to reach of a figure of 16.53, which is the number of full weeks claimant worked. Finally, according to claimant, his total wages for the period of $10,266.41 should be divided by 16.53, which equals $621.20, the average weekly wage.

Section 10 of the Act (Ill.Rev.Stat.1987, ch. 48, par. 138.10) provides for the method of calculating a worker's compensation. It states:

"The compensation shall be computed on the basis of the 'Average weekly wage' which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee's last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52; but if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted."

In Smith v. Industrial Comm'n (1988), 170 Ill.App.3d 626, 631, 121 Ill.Dec. 275, 525 N.E.2d 81, the court stated: "Assuming compliance with section 10, the Industrial Commission's determination of a claimant's average weekly wage is an issue of fact which will not be set aside unless it is contrary to the manifest weight of the evidence." In Smith, the court affirmed both the amount of average weekly wages the Commission arrived at and the method in which the Commission arrived at that amount. With respect to the method in which the Commission reached its decision, the court stated: "In the instant case the Industrial Commission took the pay stubs, which it considered to be the only precisely verifiable measure of the number of weeks claimant worked, and divided this number into claimant's regular earnings during this period." (170 Ill.App.3d at 631-32, 121 Ill.Dec. 275, 525 N.E.2d 81.) At issue in Smith was a different part of section 10 than applies to the present case, namely, average weekly wage calculation for an employee whose employment did not extend to a period of one year preceding the injury. Here, claimant's employment did extend that far, although it is clear that claimant lost more than five calendar days during the year preceding his injury.

In the case sub judice, the only evidence of record which speaks to claimant's earnings during the year preceding his injury is a list, provided by the employer and accompanied by a signature of one of the employer's employees. The list bears a caption which states that it is regarding claimant's wages for a period of one year preceding the injury. The document contains a list of 24 separate dates, followed by amounts which vary from $627 to $187.02. The list also refers to overtime wages, and both claimant's regular and overtime wages are totaled for the time period. Absolutely no other documentary evidence relating to claimant's wages exists in the record, and there is no sworn testimony on the issue in the record.

In a worker's compensation proceeding, the claimant has the burden of proving by a preponderance of the evidence the elements of his claim. (See O'Dette v. Industrial Comm'n (1980), 79 Ill.2d 249, 38 Ill.Dec. 133, 403 N.E.2d 221.) The average weekly wage under section 10, we feel, is likewise a matter which the claimant has the burden of establishing. Sub judice, claimant provided the Commission with no other evidence of his wages than the exhibit discussed above, and no other evidence of his wages exists in the record. Accordingly, there was before the Commission and is before this court no way to verify claimant's assertion that his hourly pay was $15.53 per hour, or that claimant's "usual and customary work hours were [eight] hours per day, 40 hours per week," as claimant contends in his brief. The evidence relied upon, which was stipulated to by the employer, formed the only evidence upon which the Commission could base its decision. We note that both claimant and the employer agree in their briefing that claimant only worked during 24 weeks with the employer in the year preceding his injury, and that the majority of these weeks were not full,...