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Isaacs v. Industrial Com.

OPINION FILED AUGUST 21, 1985.

LARRY ISAACS, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (FREEMAN UNITED COAL COMPANY, APPELLEES).



Appeal from the Circuit Court of Franklin County; the Hon. Larry O. Baker, Judge, presiding.

JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 25, 1985.

The claimant, Larry Isaacs, filed a claim under the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1 et seq.), for injuries sustained while employed by the defendant, Freeman United Coal Mining Company (the company). The arbitrator awarded both temporary total and permanent partial disability benefits to the claimant. On review, the Illinois Industrial Commission (the Commission) reduced the benefits awarded by the arbitrator. The circuit court of Franklin County confirmed the decision of the Commission. The claimant brings the instant appeal. We affirm in part and reverse in part.

The claimant had been employed by the company since 1970. On January 23, 1976, he injured his back while lifting a plate weighing approximately 100 pounds. This injury was the basis for the instant claim. The claimant had previously injured his back in 1973 and at that time had received 40 weeks' compensation for a 20% loss of use of his right leg.

The claimant's physician initially prescribed heat treatments, a back brace, and medication for the instant injury, and on May 11, 1976, the claimant returned to work. He was hospitalized in October 1976 and again in November 1976 for traction, heat treatments, and therapy. The claimant went back to work on January 29, 1979. A herniated disc was diagnosed in April 1979, and on May 21, 1979, a bilateral hemilaminectomy was performed. The claimant returned to work as a laborer on April 16, 1980.

At the arbitrator's hearing, it was established that the company operated 239 2/3 days in 1975, the year preceding the instant injury. The claimant's straight-time pay for the 52-week period prior to the accident was $11,157.22, and his hourly wage was $7.15 at the time of the injury. These earnings of the claimant during this 52-week period did not include payment for any wild-cat strikes, holidays, or 40 days of overtime on Saturdays and Sundays, but they did include two weeks for vacations. Of the 239 2/3 days that the company operated in 1975, the claimant worked 164 days at the straight time pay rate.

The arbitrator awarded benefits to the claimant for temporary total disability and for 30% permanent partial disability of the person. The arbitrator found that the claimant's average weekly wage was $295.69 based on an annual wage of $15,376.08. The arbitrator applied section 10(c) of the Act, stating that section 10(a) did not apply because the claimant was absent from work due to unavoidable cause in the year before the injury. The claimant was awarded $191.13 per week for 58 4/7 weeks for the temporary total disability. Additional benefits of $197.13 per week for 150 weeks were awarded by the arbitrator for the 30% permanent partial disability of the person.

The Commission established the claimant's average weekly wage at $214.56 based upon his straight time annual wage of $11,157.22 divided by 52 weeks. Although the record does not state which rate provision of section 10 of the Act was applied, the Commission apparently utilized section 10(a). On this basis, the Commission awarded temporary disability benefits of $143.04 per week for 58 4/7 weeks. The Commission also granted 22% partial disability benefits of $143.04 per week for 110 weeks, finding that Freeman was entitled to an 8% credit for the prior 1973 injury.

On appeal to the circuit court of Franklin County, the court confirmed the Commission's decision. This appeal followed.

The claimant argues on appeal that his average weekly wage should be determined by dividing his annual earnings by the number of weeks during which work was available and during which he was not unavoidably absent. The claimant thus contends that his annual earnings of $11,157.22 should be divided by 40, the number of weeks that work was available. This number of weeks is computed by the claimant based on the fact that the mine operated 239 2/3 days in the year before the injury. After deducting his 40 days of overtime earnings, the claimant asserts that only 199 2/3 day or 40 weeks of regular work were actually available to him. The claimant asks, therefore, that his average weekly earnings be calculated on the basis of 40 weeks rather than 52 weeks.

We find initially that the arbitrator's basis was improperly computed. The arbitrator based his determination of the claimant's average weekly wage on the assumption that the claimant worked a total of 275 days in the year next preceding the injury. The record states, however, that the claimant worked 164 straight time days and 40 days of overtime on Saturdays and Sundays.

Section 10 of the Act contains the following relevant provisions for computing an employee's level of compensation:

"(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 ...


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