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Friddle v. Industrial Com.

OPINION FILED SEPTEMBER 17, 1982.

JOSEPHINE E. FRIDDLE, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (THE CITY OF WILMINGTON, APPELLEE).



Appeal from the Circuit Court of Will County, the Hon. John Verkaln, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Melvin A. Friddle was employed as a part-time volunteer fireman for the city of Wilmington. On February 5, 1978, he sustained fatal injuries arising out of and in the course of his employment as a volunteer fireman. The arbitrator entered an award of compensation to the plaintiff, Mrs. Friddle, in accordance with section 10(e) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.10(e)). The Industrial Commission affirmed the award as computed, and the circuit court of Will County confirmed the decision of the Industrial Commission. The plaintiff appealed to this court pursuant to Rule 302(a) (73 Ill.2d R. 302(a)).

The issue before us is whether section 10(e) of the Workmen's Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.10(e)) was properly applied by the Industrial Commission.

Section 7(a) of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(a)) addresses the amount of compensation to be paid for an accidental injury that results in an employee's death. It states that the weekly compensation rate is computed in accordance with subparagraph 2 of section 8(b) (Ill. Rev. Stat. 1977, ch. 48, par. 138.7(a)). Section 8(b)(2) provides that the basic benefit should equal two-thirds (66 2/3%) of that employee's average weekly wage computed in accordance with section 10 (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(b)(2)). Section 10 provided in part:

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

(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.

(b) Employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident, uninterrupted by absence from work due to illness or any other unavoidable cause.

(c) If the injured person has not been engaged in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same employment and same location, (or if that be impracticable, of neighboring employments of the same kind) have earned during such period.

(d) As to employees in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as 300 times the average daily earnings in such computation.

(e) As to employees in employments in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings, provided the minimum number of days which shall be so used for the basis of the year's work shall be not less than 200.

(f) In the case of injured employees who earn either no wage or less than the earnings of adult day laborers in the same line of employment in that locality, the yearly wage shall be reckoned according to the average annual earnings of adults of the same class in the same (or if that is impracticable, then of neighboring) employments." Ill. Rev. Stat. 1977, ch. 48, par. 138.10.

In computing the earnings base, paragraphs (d),(e) and (f) are used in determining the annual earnings only if paragraphs (a) or (c) do not apply. Vaught v. Industrial Com. (1972), 52 Ill.2d 158, 164; see Ruda v. Industrial Board (1918), 283 Ill. 550.

In Vaught v. Industrial Com. (1972), 52 Ill.2d 158, the claimant was employed as a full-time welder by General Motors and drove a taxi for the Yellow Cab Company on weekends. The Industrial Commission awarded benefits based only on the income derived from his part-time job as a taxi driver. While the circuit court upheld the award, this court reversed the decision, holding that the claimant's compensation should have been based on the earnings he would have received had he been employed full time as a taxi driver. The court indicated, in interpreting section 10 in Vaught, that paragraph (a) did not apply because, ...


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