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Cardiff v. Industrial Com.

OPINION FILED SEPTEMBER 24, 1984.

PHYLLIS L. CARDIFF, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (PRESTIGE METAL PRODUCTS, INC., APPELLEE).



Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Petitioner, Phyllis Cardiff, sought workers' compensation for an injury she sustained while in the employ of respondent, Prestige Metal Products, Inc. An arbitrator awarded her compensation for 17 4/7 weeks of temporary total disability and for 28 1/2 weeks of permanent partial disability. The arbitrator awarded Cardiff weekly payments of $20.68, computed pursuant to section 10(a) of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(a)). The Industrial Commission upheld the decision of the arbitrator, and the circuit court of Lake County confirmed the decision of the Commission. Cardiff appeals from the portion of the arbitrator's decision which determined her weekly compensation payments to be $20.68. We affirm.

The sole issue for review is whether petitioner's compensation was correctly computed in accordance with section 10(a) of the Act.

On March 16, 1978, Cardiff was hired by Prestige Metal Products, Inc. (Prestige), for part-time employment on an "on-call" basis. Prestige had two distinct grades of employees. Full-time employees worked at least 40 hours per week and were paid wages ranging from $4 to $11 per hour. Part-time employees were hired with the understanding that they would have no guaranteed working hours. Rather, they would be called to work when and if work became available. There could be lengthy periods of time during which these employees would not work at all. The employees in this grade would not know from week to week whether or when they would actually be called to work. Part-time employees all received wages of $3 per hour. Cardiff worked solely as such a part-time employee.

On March 21, 1979, Cardiff was injured while working at Prestige when two of her fingers were crushed in a machine. In determining her compensation award, the arbitrator relied on sections 10(a) and 10(b) of the Act, which provide:

"(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." (Ill. Rev. Stat. 1979, ch. 48, pars. 138.10(a), (b).)

The arbitrator determined Cardiff's earnings during the year next preceding her injury to be $1,075.20 and that her average weekly wage was $20.68.

• 1 Cardiff contends that section 10(a) should not be applied in her case because she did not work for Prestige for a full year preceding her injury on March 21, 1979. She claims that even though she was hired on March 16, 1978, she was not called to work until April 24, 1978. On this basis she argues that she was not employed by Prestige until April 24, 1978, less than a year before her injury. However, this argument ignores the fact that Cardiff was hired as an "on-call" employee. She was eligible to be called to work from the moment she was hired. The fact that she was not called immediately did not diminish her "on-call" employee status as of March 16, 1978. It is clear, then, that Cardiff was employed by Prestige for the year preceding her injury.

• 2 Cardiff next contends that even if she had worked for the full year preceding her injury, section 10(a) is still inapplicable because she was a part-time employee. She relies on Vaught v. Industrial Com. (1972), 52 Ill.2d 158, 287 N.E.2d 701, for the proposition that, as a part-time employee, she was not "continuously" employed during the year preceding her injury as required under section 10(a).

In Vaught, the court dealt with a petitioner who had been employed as a weekend taxi driver for many years and who had other, unrelated full-time employment during the week. He was injured while working as a taxi driver. The court felt that section 10(a) was inapplicable to this situation because the petitioner was not "continuously" employed for the full year preceding his accident. Under such circumstances the court concluded that "the legislature failed to expressly provide a basis for computing the annual earnings of an employee who works regularly, but only on a part-time basis." The court went on to compute the petitioner's annual earnings by basing them upon what a full-time taxi driver's wages would be.

The petitioner here, Cardiff, argues that her wages too must be based on the wages of the full-time Prestige employees. However, this argument ignores the recent decision of our supreme court in Hasler v. Industrial Com. (1983), 97 Ill.2d 46, 454 N.E.2d 307. There the court computed a part-time employee's compensation on the basis of section 10(a). In Hasler, as here, the court dealt with an employee who worked different hours, days, and weeks during the year, depending upon the availability of work. She did not work every week of the year, and she worked in this capacity for a single employer in the year preceding her accident. Based upon these facts, the court found that she was "continuously" employed and that section 10(a) was applicable in determining her compensation.

We believe the supreme court's holding in Hasler is controlling here. The facts involved in the present case are virtually indistinguishable from those in Hasler. Also, the court in Hasler distinguished Vaught and other cases relied on by petitioner here. Those cases dealt with claimants who had two employers in the year preceding their injury. Further, here, as in Hasler, the annual wages of the claimant were determinable and were actually determined by employer records.

More importantly, the application of the Vaught holding to the present case would create an anomalous result. The arbitrator found that Cardiff earned approximately $1,075 during the year preceding her injury, and under section 10(a) she would be compensated on this basis at $20.68 per week (her average weekly salary for the previous year). Under the computation method that Cardiff contends is applicable, she ...


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