Sylvester v. INDUSTRIAL COM'N

• Citation: 314 Ill. App.3d 1100,732 N.E.2d 751,247 Ill.Dec. 696
• Decision Date: 28 June 2000
• Docket Number: No. 4-99-0363 WC.,4-99-0363 WC.
• Parties: Ronald SYLVESTER, Appellant, v. The INDUSTRIAL COMMISSION et al. (Acme Roofing & Sheet Metal Company, Appellee).
• Court: United States Appellate Court of Illinois

732 N.E.2d 751

314 Ill. App.3d 1100

247 Ill.Dec. 696

Ronald SYLVESTER, Appellant, v. The INDUSTRIAL COMMISSION et al. (Acme Roofing & Sheet Metal Company, Appellee).

No. 4-99-0363 WC.

Appellate Court of Illinois, Fourth District.

June 28, 2000.

Rehearing Denied August 3, 2000.

Mike McElvain, Law Office of Mike McElvain, Bloomington, for Ronald Sylvester.

Robert T. Newman, Garofalo, Schreiber & Hart, Chartered, Chicago, for Industrial Commission.

Presiding Justice McCULLOUGH delivered the opinion of the court:

On March 20, 1992, claimant, Ronald W. Sylvester, was injured while working for Acme Roofing and Sheet Metal Company. On June 4, 1997, an arbitrator determined, inter alia, that claimant's average weekly wage prior to his accident was $368.43. On November 13, 1998, the Industrial Commission (Commission) affirmed the arbitrator's determinations. On April 14, 1999, the circuit court confirmed the Commission. Claimant appeals, arguing that the Commission erred with respect to its calculation of claimant's average weekly wage. We agree and reverse and remand.

This court rendered an opinion affirming the circuit court's order. Claimant filed a petition for rehearing. We now deny the petition for rehearing but withdraw our opinion filed April 21, 1998, and by this opinion, reverse the circuit court of McLean County.

On March 20, 1992, claimant fell approximately 16 feet from the bed of a truck, sustaining serious injuries. His right leg was amputated below the knee and he sustained injury to his left foot. The arbitrator found that claimant lost 100% of his right leg and 65% of his left foot. Claimant received $560 per week in temporary total disability benefits (TTD) for 180 weeks. For the next 50 weeks, Acme paid claimant $228 per week in TTD benefits.

Claimant testified that he was employed by respondent for 19 years and, at the time of injury, was a roofing foreman earning $21 per hour. If the weather permitted and the respondent had work available, claimant would work. It is uncontradicted that he was on call with respondent if work was available, he did not call respondent for work, respondent called claimant, he had no other employment, and he was not self-employed. The wage summary confirms that claimant would be called to work five-hour stints during the time when full-time work was not available and claimant was receiving unemployment compensation. Although the parties do not agree as to the meaning of the collective-bargaining agreement, they do agree that a workweek is 40 hours. During the winter season, claimant regularly worked less than 40 hours and received unemployment compensation. As a condition to receiving unemployment compensation, claimant testified that he could work no more than five hours per week. The payroll records verify that he generally worked for respondent, while receiving unemployment compensation, performing emergency repairs or patch leaks, until the weather broke and he could return.

Claimant submitted a wage summary in which he calculated his average weekly wage at $695.75. Claimant did not testify as to the formula that he used to calculate this figure. However, it appears from claimant's brief and the wage summary submitted by both parties that claimant counted the total number of days worked during the previous 52 weeks, which totaled 131. Claimant then divided 131 by 5 (representing a full workweek) to arrive at 26.2. Next, claimant divided what he perceived as his total earnings for the previous 52 weeks, $18,228.55, by 26.2, and arrived at an average weekly wage of $695.75.

On May 30, 1997, the arbitrator entered her award. The arbitrator found that, during the year prior to claimant's injury, Acme paid claimant for working 48 of 52 weeks. The arbitrator determined that claimant earned $17,684.41 during this period and divided that amount by 48, arriving at an average weekly wage totaling $368.43. On November 13, 1998, the Commission affirmed and adopted the decision of the arbitrator. On April 14, 1999, the circuit court confirmed the determination of the Commission. On May 5, 1999, claimant filed a notice of appeal to this court.

On appeal, claimant argues that the Commission's determination of claimant's average weekly salary was against the manifest weight of the evidence. Claimant has the burden of proving, by a preponderance of the evidence, the elements of his claim, including his average weekly wage. Zanger v. Industrial Comm'n, 306 Ill.App.3d 887, 890, 240 Ill. Dec. 80, 715 N.E.2d 767, 769 (1999). The Commission's determination of claimant's wages is a question of fact that a reviewing court will not disturb unless it is contrary to the manifest weight of the evidence. Zanger, 306 Ill.App.3d at 890, 240 Ill.Dec. 80, 715 N.E.2d at 769. The basis for computing a claimant's average weekly earnings is governed by section 10 of the Workers' Compensation Act (Act) (820 ILCS 305/10 (West 1998)), which states in relevant part:

"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. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee actually earned wages shall be followed. Where by reason of the shortness of the time during which the employee has been in the employment of his employer or of the casual nature or terms of the employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury, illness or disablement was being or would have been earned by a person in the same grade employed at the same work for each of such 52 weeks for the same number of hours per week by the same employer."

Claimant argues that the Commission misinterpreted the language of the statute with regard to partial weeks worked and ignored the clear meaning of the phrase "parts thereof." See 820 ILCS 305/10 (West 1996). He also argues that credence must be given to "the number of weeks and parts thereof remaining after the time so lost has been deducted" (820 ILCS 305/10 (West 1998)).

Illinois-Iowa Blacktop, Inc. v. Industrial Comm'n, 180 Ill.App.3d 885, 129 Ill.Dec. 958, 536 N.E.2d 1008 (1989), reviewed the legislative history of section 10 of the Act. Four other cases have also addressed the issue in the context within which we are dealing.

In Peoria Roofing & Sheet Metal Co. v. Industrial Comm'n, 181 Ill.App.3d 616, 130 Ill.Dec. 314, 537 N.E.2d 381 (1989), the claimant was a roofer whose work schedule was significantly affected by the weather. In the previous 52 weeks, claimant worked a total of 134 days in 43 calendar weeks (averaging slightly more than 3 days per week). The Commission determined the average weekly wage by dividing claimant's total earnings for the previous 52 weeks by one-fifth the number of calendar days that claimant worked that year. The circuit court reversed, and on appeal, the employer argued that section 10 did not provide for "`fictional weeks' (i.e., consolidated five-day groups of days worked), and that the language of section 10 should not be mechanically used to reach that result." Peoria Roofing, 181 Ill.App.3d at 619,130 Ill.Dec. 314,537 N.E.2d at 383. We reversed the circuit court and reinstated the Commission's determination, stating:

"The [employer's] interpretation of the emphasized section 10 language strain[ed] the plain meaning of the phrase `and parts thereof.' It effectively equates all calendar weeks during which [claimant] did any work, regardless of how many days he worked during the week. Whereas one day is, in fact, only a fraction of a work week, the [employer] would seek to have one isolated day in a calendar week regarded as a `week,' not as a fractional `part thereof.'

Also, under the [employer's] analysis, section 10's provision for employees who `lost 5 or more calendar days' is superfluous except for employees who `lost' full calendar weeks of employment. Under the [employer's] analysis, any employee who `lost 5 or more calendar days,' but nonetheless worked in every calendar week, would have his average wage calculated based on a 52-week year, just as under the initial provision of section 10." Peoria Roofing, 181 Ill. App.3d at 620, 130 Ill.Dec. 314, 537 N.E.2d at 383-84.

Three years later, in Cook v. Industrial Comm'n, 231 Ill.App.3d 729, 173 Ill.Dec. 122, 596 N.E.2d 746 (1992), we addressed this issue again. In Cook, claimant worked at least 1 day per week in 24 of the 52 weeks prior to his injury. During that period, claimant worked only 3 full, 40-hour weeks. The majority of weeks claimant worked less than 5 full days and less than 40 hours per week. The Commission divided claimant's total earnings for the previous 52-week period by 24, the number of weeks in which claimant actually worked. On appeal we found that claimant failed to provide the Commission with any "other documentary evidence [or] * * * sworn testimony" relating to claimant's wages and noted the deferential standard accorded to the Commission's factual determination of average weekly wage. Cook, 231 Ill.App.3d at 731, 173 Ill.Dec. 122, 596 N.E.2d at 747-48. We concluded that "[t]he only recourse to the Commission, based strictly upon the evidence before it, was to...