APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
This record presents a problem in workmen's compensation law. Upon direct appeal from the circuit court to the supreme court (Ill. Rev. Stat. 1979, ch. 110A, par. 302(a)), one judge of the supreme court recused himself. The remaining members of the court were divided in their views of the case. The appeal was accordingly transferred to this court.
The parties hereto, United Airlines (plaintiff) and the surviving widow and children of a deceased employee (defendants), stipulated before the arbitrator that David McKellar died on April 21, 1976, from accidental injuries which arose out of and in the course of his employment. The earnings of the deceased during the year preceding his death were $18,158.40. His weekly average pay was $349.20. The arbitrator directed payment of $205 per week by plaintiff to the widow and children pursuant to section 7(a) of the Workmen's Compensation Act. Ill. Rev. Stat. 1975, ch. 48, par. 138.7(a).
Upon review, the Industrial Commission increased the compensation rate to $232.80 per week. Plaintiff sought administrative review. The circuit court affirmed the Commission. This appeal by plaintiff followed.
Decision of this case involves a construction of statutory provisions as follows:
Section 7(a) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.7(a)) is headed "Amount of compensation — Fatal cases." The statute provides for payment of compensation to the surviving widow and children with "the applicable weekly compensation rate computed in accordance with subparagraph 2 of paragraph (b) of Section 8 [Ill. Rev. Stat. 1975, ch. 48, par. 138.8] * * *."
Section 8(b)(2) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(b)(2)) is headed "Amount of compensation — Nonfatal cases." It provides:
"The compensation rate in all cases other than for temporary total disability under this paragraph (b) of this Section shall be equal to 66 2/3% of the employee's average weekly wage computed in accordance with the provisions of Section 10 [Ill. Rev. Stat. 1975, ch. 48, par. 138.10], provided that it shall be not less than the following amounts in the following cases:
$91.80 in case of 3 children;
nor exceed the employee's average weekly wage computed in accordance with the provisions of Section 10, whichever is less."
Section 10(a) of the Act (Ill. Rev. Stat. 1975, ch. 48, par. ...