Sylvester v. INDUSTRIAL COM'N

• Decision Date: 19 July 2001
• Docket Number: No. 90198.,90198.
• Citation: 258 Ill.Dec. 548,756 N.E.2d 822,197 Ill.2d 225
• Parties: Ronald SYLVESTER, Appellee, v. The INDUSTRIAL COMMISSION et al. (Acme Roofing and Sheet Metal Company, Appellant).
• Court: Illinois Supreme Court

756 N.E.2d 822

197 Ill.2d 225

258 Ill.Dec. 548

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

No. 90198.

Supreme Court of Illinois.

July 19, 2001.

Rehearing Denied October 1, 2001.

Garofalo, Schreiber & Hart, Chrtd. (Robert T. Newman, of counsel), and McKenna, Storer, Rowe, White & Farrug (James P. DeNardo, of counsel), Chicago, for appellant Acme Roofing & Sheet Metal Co.

Mike McElvain, Bloomington, for appellee.

Roddy, Leahy, Guill & Zima, Ltd., Chicago (John H. Guill, of counsel), for amici curiae National Roofing Contractors Association et al.

Brady, Connolly & Masuda, P.C., Chicago (Francis M. Brady, of counsel), for amici curiae Illinois Manufacturers Association et al.

Justice FREEMAN delivered the opinion of the court:

Ronald Sylvester, petitioner, filed a claim under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992)) after he was injured in the course of his employment with Acme Roofing and Sheet Metal Company (Acme). The arbitrator hearing the case determined that petitioner's average weekly wage was $368.43 and awarded him 230 6/7 weeks of temporary total disability (TTD) benefits. The arbitrator's decision was affirmed and adopted by the Industrial Commission, and the circuit court confirmed the Commission. The appellate court reversed the circuit court, holding that the wage computation had been based on an erroneous interpretation of the governing statute, section 10 of the Act (820 ILCS 305/10 (West 1992)). 314 Ill.App.3d 1100, 247 Ill. Dec. 696, 732 N.E.2d 751. Acme petitioned this court for leave to appeal (177 Ill.2d R. 315(a)). We granted leave to appeal and now affirm the judgment of the appellate court.

BACKGROUND

Before this court the parties only dispute the calculation of petitioner's average weekly wage during the year prior to his injury. Accordingly, we shall limit our discussion to the facts germane to this issue. As background, we note that petitioner's workers' compensation claim arose out of a serious injury in May 1992 when he fell approximately 16 feet to the ground from the raised bed of a truck, shattering both of his ankles. As a result of this accident petitioner's right leg was amputated below the knee, and his left foot was permanently injured. None of these facts are in dispute.

At the hearing before the Industrial Commission, petitioner testified that he had been working for Acme for 19 years before the accident and was not employed by anyone else during that time. At the time of the accident he was a roofer foreman and earned $21 per hour. Because the winter weather prevented much work being done, he usually signed up for unemployment during the winter. However, Acme put him to work for approximately five hours per week on small jobs such as repairs or leak patching.

Petitioner testified that his job required him to be on call for Acme all week, year-round, and if work were available, he would work a 40-hour week. He stated that when he worked a full week, he worked eight hours per day, five days per week. Petitioner introduced into evidence his union contract, which stated that he had to be paid overtime if he worked more than 10 hours per day or 40 hours per week. The contract also stated that a normal workday would be from 8 a.m. to 4:30 p.m., subject to change by agreement between the employer and employees, and that the lunch period was "one-half hour only." The contract further provided that the regular workweek would "consist of 10 hour or less than the 10-hour work days, Monday through Friday, with a make-up day on Saturday."

Petitioner and Acme both introduced into evidence petitioner's wage records for the 52 weeks prior to his accident. These documents reflected, for each week of the preceding year, the number of hours petitioner had worked and the amount he had earned. The number of hours worked per week varied from 3 to 40, and his weekly pay ranged from $60.75 to $818.25. Petitioner's and Acme's submissions were identical, except that on petitioner's copy he wrote estimates, for each week, of the number of days he had worked that week. Petitioner testified that the estimate was based on the number of hours worked that week. According to petitioner's estimate, he had worked a total of 131 days during the previous 52 weeks.

On the issue of petitioner's earnings, the arbitrator found as follows in the written order. During the 52 weeks from May 21, 1991, to May 20, 1992, petitioner earned a total of $17,684.41, not counting a Christmas bonus of $150. Acme issued defendant paychecks in 48 out of the 52 weeks. Petitioner's average weekly wage was $368.43, a figure at which the arbitrator arrived by dividing petitioner's total pay by 48, the number of weeks in which petitioner received pay. The arbitrator stated that "[t]his calculation follows the method employed by the Court in Cook v. Industrial Commission, [231 Ill.App.3d 729, 173 Ill.Dec. 122, 596 N.E.2d 746 (1992)]."

Petitioner appealed. As previously noted, the Industrial Commission affirmed and adopted the arbitrator's decision. The circuit court confirmed the Commission. However, the appellate court reversed the circuit court. The appellate court reviewed its previous decisions interpreting section 10 of the Act (820 ILCS 305/10 (West 1992)), and held that the arbitrator had erred in the calculation of petitioner's average weekly wage. The court endorsed its prior decisions to the effect that in order to determine average weekly wage it was necessary to factor out all days which the claimant had lost through no fault of his own. 314 Ill.App.3d 1100, 247 Ill.Dec. 696, 732 N.E.2d 751. We granted Acme's petition for leave to appeal. 177 Ill.2d R. 315(a). We also granted leave to the Illinois Manufacturers Association, Illinois Construction Industry Committees, Illinois Insurance Association, National Roofing Contractors Association, Onesource Building Services, Inc., Yellow Freight System, Cambridge Integrated Services Group, Inc., West Bend Mutual Insurance Company, and Custard Claims Management Services, Inc., to submit briefs as amici curiae. 155 Ill.2d R. 345.

ANALYSIS

As previously noted, the only dispute is over computation of petitioner's average weekly wage. The parties agree that the case is controlled by section 10 of the Act, which provides 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. 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." 820 ILCS 305/10 (West 1992).

As the appellate court noted, section 10 provides four different methods for calculating average weekly wage. (1) By default, average weekly wage is "actual earnings" during the 52 week period preceding the date of injury, illness or disablement, divided by 52. (2) If the employee lost five or more calendar days during that 52-week period, "whether or not in the same week," then the employee's earnings are divided not by 52, but by "the number of weeks and parts thereof remaining after the time so lost has been deducted." (3) If the employee's employment began during the 52-week period, the earnings during employment are divided by "the number of weeks and parts thereof during which the employee actually earned wages." (4) Finally, if the employment has been of such short duration or the terms of the employment of such casual nature that it is "impractical" to use one of the three above methods to calculate average weekly wage, "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."

In this case the parties agree that the arbitrator used the second method, a conclusion made clear by the cite to Cook, which only involved the second method of calculation. The parties differ on what to divide earnings by to compute average weekly wage, however. Acme contends that since any week in which the employee worked at least one day is technically a "part" of a week, and the statute provides that earnings are to be divided by the weeks "and parts thereof remaining," weeks in which the employee worked at least one day should be counted the same as a full week of work. Thus, the total wages earned in the previous 52 weeks must be divided by the number of weeks in that time period in which the employee worked even one day. Petitioner contends that the fact finder should count the number of days the claimant worked in the previous 52 weeks,...