Illinois-Iowa Blacktop, Inc. v. Industrial Com'n

• Decision Date: 07 April 1989
• Docket Number: No. 3-87-0101,ILLINOIS-IOWA,3-87-0101
• Parties: , 129 Ill.Dec. 958 BLACKTOP, INC., Respondent-Appellant, v. The INDUSTRIAL COMMISSION, et al. (Odell Beck, Petitioner), Appellees. WC.
• Court: United States Appellate Court of Illinois

Page 1008

536 N.E.2d 1008

180 Ill.App.3d 885, 129 Ill.Dec. 958

ILLINOIS-IOWA BLACKTOP, INC., Respondent-Appellant, v. The INDUSTRIAL COMMISSION, et al. (Odell Beck, Petitioner), Appellees.

No. 3-87-0101 WC.

Appellate Court of Illinois,

Third District,

Industrial Commission Division.

April 7, 1989.

William R. Stengel, Jr., Coyle, Gilman & Stengel, Rock Island, for Illinois-Iowa Blacktop, Inc.

John H. Westensee, Braud, Warner, Neppl & Westensee, Rock Island, for Odell Beck.

Stevenson, Rusin & Friedman, Chicago, for Illinois Manufacturers' Associates.

Robert B. Maher, Illinois Construction Industry Committee, Arthur C. Chapman, Chapman & Roin, Chicago, for Illinois Mechanical Specialty.

Presiding Justice BARRY delivered the modified opinion of the court on petition for rehearing.

The arbitrator found that the petitioner, Odell Beck, a 51-year-old construction worker, was illiterate with a third grade education, and was totally and permanently disabled by back, hip and leg injuries suffered when he fell from a stationary truck. He found that the petitioner's average weekly wage was $511.95 and that he was entitled to receive $341.30 per week. The Industrial Commission affirmed the arbitrator's findings and the circuit court confirmed the Commission's decision. The respondent, Illinois-Iowa Blacktop, Inc., appealed to this court.

On April 21, 1988, we entered an opinion affirming the circuit court. We subsequently granted the respondent's petition for rehearing. We further allowed the Illinois Manufacturers' Association to file a brief amicus curiae in the rehearing and we allowed the Illinois Mechanical Specialty Contractors Association and the Illinois Construction Industry Committee to adopt the amicus curiae brief. The amicus limited its presentation to the issue of the average weekly wage. Having considered the arguments advanced on rehearing, we find as follows.

One of the respondent's two issues on appeal is whether the Commission's determination that the petitioner was permanently totally disabled was against the manifest weight of the evidence. The evidence regarding the total permanent disability issue showed that on September 30, 1982, the petitioner was working for the respondent shoveling asphalt from the back of a stationary truck. The tailgate on which he stood suddenly gave way, causing him to fall approximately four feet, injuring his back, left hip and left leg.

The petitioner subsequently consulted several doctors and engaged in physical therapy under their care. On December 30, 1982, Dr. D'Angelo, an osteopathic physician, pronounced the petitioner fit to return to light-duty work requiring no repetitive bending, stooping, or lifting of objects greater than 20 pounds. The respondent had no work available within these restrictions at the beginning of the 1983 work season.

On July 28, 1983, Dr. D'Angelo released the petitioner, who had undergone further physical therapy, to return to work without restrictions. For the next couple of days, the petitioner operated a jackhammer for the respondent. He felt "something coming loose" in his back, which then became stiff and painful. The petitioner also tried working as a flagman for the respondent, but was unable to remain standing for long periods. He then discontinued working and has not worked since August of 1983.

Surgeon Myron B. Stachniw saw the petitioner and diagnosed him as suffering from herniated discs. On November 11, 1983, Dr. Stachniw performed a chemonucleolysis with chymopapain on the petitioner's L4-L5 and L5-S1 discs. Secondarily, he diagnosed that the petitioner suffered from hypertension.

The medical evidence in the record consistently showed that the petitioner could perform only light work. Dr. Stachniw opined that the petitioner could do some sweeping and cleaning, and could lift 20 pounds maximum. He could not sit or stand for a prolonged period, or perform any jobs requiring frequent bending or stooping. Dr. F. Dale Wilson stated that the petitioner could walk 6 or 7 blocks; could sit one-half hour; could stand 10 to 15 minutes; should avoid bending or twisting and use care in turning; should avoid jolts or jars to his spine; and should not lift more than 10 to 15 pounds.

Given these restrictions, the experts uniformly doubted the petitioner's ability to find work. Since 1965, the 51-year-old petitioner had worked exclusively for the respondent, performing only unskilled, manual labor. His formal education ended in the third grade and he could not read or write. Dr. Robert Chesser questioned how realistic a retraining program would be. Dr. Wilson agreed, adding that it was unlikely the petitioner would ever be gainfully employed again. G. Brian Paprocki, a vocational consultant hired by the petitioner, concluded that the petitioner had sustained a 100% industrial disability, in that there existed no realistic chance of the petitioner's finding a job given his occupational abilities and his medical restrictions.

The respondent had no suitable work available for the petitioner. No rehabilitation offer was made by the respondent. The petitioner has not sought work elsewhere.

The evidence regarding the petitioner's average weekly wage showed that each year the respondent employed the petitioner generally from April through December. The arbitrator found that the petitioner worked exclusively for the respondent for a period in excess of 15 years. During the "off" months, the petitioner collected unemployment compensation. He was not required to reapply each year for his construction job, but merely reported for work when called at the beginning of the season.

During the 52 weeks prior to his accident, the petitioner worked 20 weeks, earning $10,060.03 in regular wages. During this period, he also worked an additional 103.5 hours of overtime. The petitioner notes that if those 103.5 hours of overtime were calculated at his regular hourly wage, rather than at his higher overtime hourly wage, they would add $1,335.01 to his yearly earnings. His unemployment compensation rate was $154 per week.

A person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. (E.R. Moore Co. v. Industrial Comm'n. (1978), 71 Ill.2d 353, 17 Ill.Dec. 207, 376 N.E.2d 206.) In determining whether an employee can perform any useful services, his age, training, education and experience must be taken into account. Unless he is obviously unemployable or unless he presents medical evidence to support a claim of total disability, a claimant has the burden of proving that no employment is available for a person in his circumstances. (Valley Mould & Iron Co. v. Industrial Comm'n (1981), 84 Ill.2d 538, 50 Ill.Dec. 710, 419 N.E.2d 1159.) However, once the claimant establishes that he falls into the "odd-lot" category of persons who are not altogether incapacitated but are so handicapped that they will not be employed regularly in any well-known branch of the labor market, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant. 84 Ill.2d 538, 50 Ill.Dec. 710, 419 N.E.2d 1159.

In the instant case, the record contains substantial evidence that the petitioner is unemployable. Given his work restrictions, minimal education, and few job skills and age, Drs. Chesser and Wilson indicated that any attempts at rehabilitation would probably be fruitless. Dr. Wilson opined that it was unlikely that the petitioner would ever be gainfully employed again. Vocational Consultant Paprocki testified that he had sustained a 100% industrial disability, in that there was no realistic chance of his finding a job.

Based on this evidence, we find that the petitioner met his initial burden of proof under Valley Mould. There was no evidence to suggest that some kind of suitable work was available to the petitioner. Accordingly, we find that the Commission's determination that the petitioner was permanently totally disabled was not against the manifest weight of the evidence.

The respondent's second issue on appeal is that the Commission and the trial court erred in determining that the petitioner's average weekly wage was $511.95.

Section 10 of the Workers' Compensation Act (the Act) (Ill.Rev.Stat.1981, ch. 48, par. 138.10) currently provides in pertinent part:

"The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows:

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." (Emphasis added.) Ill.Rev.Stat.1981, ch. 48, par. 138.10.

In the instant case, the petitioner "lost five or more calendar days during such period," and, as we read the record, we find that the petitioner was in fact underpaid during the 52 weeks preceding his injury. Accordingly, the arbitrator, as approved by the Commission and the circuit court, used the hourly wage he was supposed to have been paid under his contract, from time to time, calculated what he should have earned during the preceding 52 weeks based upon the number of non-overtime hours he worked, and divided the total by the 20 weeks he actually worked to arrive at an average weekly wage of $511.95.

The respondent and the amicus curiae argue that the Commission should have divided the petitioner's actual (non-overtime) earnings...