Appeal from the Circuit Court of Champaign County, the Hon.
Harold Jensen, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 30, 1983.
Claimant, Maxine Hasler, sought workmen's compensation for an injury she sustained while in the employ of respondent, Robert Wease. An arbitrator found that she was totally and permanently disabled, and awarded her compensation in accordance with section 10(e) of the Workmen's Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(e)). The Industrial Commission modified the decision of the arbitrator, finding that claimant was temporarily totally disabled. It further determined that her earnings base should be computed pursuant to section 10(a) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(a)). The circuit court of Champaign County reversed the decision of the Commission on the grounds that, as a matter of law, section 10(e) governs the computation of claimant's award. Respondent brought a direct appeal to this court. 73 Ill.2d R. 302(a).
The sole issue for review is whether claimant's compensation should be computed in accordance with section 10(a), or section 10(e), of the Act.
On July 7, 1979, claimant was employed by respondent as a painter and wallpaper hanger. On that date, while returning with respondent from a job site, their vehicle collided with another automobile resulting in claimant's injuries.
At the hearing before the arbitrator, claimant testified that her employment varied with respect to the number of days she worked. She indicated that certain months were "more busy" than others. Her hourly wage was $6, and she normally worked eight through nine hours a day.
On cross-examination, claimant stated that she had been employed by respondent for five years preceding the injury. She was not engaged in any other employment. When asked whether she worked every day, claimant responded: "I worked about every day, yes. Every day that we had work, yes." She further stated that she worked for respondent every month but not every week. Claimant subsequently indicated that respondent had work for her "most of the time."
Additional evidence showed that claimant worked seven months, and earned $1,624.72, during the year next preceding the injury. With the exception of certain medical reports, no evidence was produced during the hearing before the Commission.
Section 10 of the Act provides, in relevant part:
"(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.
(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." Ill. Rev. Stat. 1979, ch. 48, pars. 138.10(a), (e).
Claimant contends that section 10(a) is inapplicable because she was not continuously employed by respondent for a full year preceding the injury. She alleges that she worked "intermittently," and cites a number of cases which indicate that section 10(e) should be used to determine the basis of compensation where the employment is intermittent. (K & R. Delivery, Inc. v. Industrial Com. (1957), 11 Ill.2d 441; Mielke v. Industrial Com. (1942), 379 Ill. 462; Stellwagen v. Industrial Com. (1935), 359 Ill. 557; Ruda v. Industrial Board (1918), 283 Ill. 550.) We agree with respondent that these cases are distinguishable.
In K. & R. Delivery, Inc., the claimant was employed full time and also held a part-time job. The injury was sustained during the course of the part-time employment. In determining that claimant's compensation should be computed in accordance with section 10(e), this court noted that claimant was not continuously employed by respondent for a full year preceding the injury. The evidence indicated that he may have worked only seven days, and that he did not work all year for the same employer. Further, because of the nature of the employment, the annual earnings were not determinable.
Similarly, in Stellwagen, the claimant was engaged in two occupations. He worked three days a week for the city of Chicago, and also performed "odd jobs," such as home repairs, for respondent. He sustained an injury during the course of the latter employment. Claimant's compensation was computed pursuant to section 10(e) because he did not work for respondent "continuously" during the year preceding the injury. There was no ...