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Vill. of Clarendon Hills v. Ind. Com.

OPINION FILED NOVEMBER 6, 1986.

THE VILLAGE OF CLARENDON HILLS, APPELLANT,

v.

THE INDUSTRIAL COMMISSION ET AL. (GERALD ROSSI, APPELLEE).



Appeal from the Circuit Court of Du Page County; the Hon. John S. Teschner, Judge, presiding. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 30, 1986.

The petitioner, Gerald Rossi, filed a claim under the Worker's Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for injuries related to the hip fracture he sustained when he fell from a fire truck (the accident) during a fire call for the respondent employer, the village of Clarendon Hills (the village). The respondent appeals from the order of the circuit court of Du Page County affirming the decision of the Industrial Commission (the Commission) which determined the petitioner's average weekly wage under section 10(f) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(f)). We reverse and remand.

The facts are not in dispute. The petitioner is a volunteer fireman for the village's all-volunteer fire department (the department). On May 28, 1979, he was 31 years old and was earning approximately $600 per week as a traveling, full-time semitrailer-truck salesman. Additionally, he had been a volunteer fireman for the village for over three years. The petitioner was on-call to the department 365 days a year. He answered calls sporadically, when he was in their vicinity. He was paid a flat fee of $4 for each call he attended. In the year next preceding the accident, the petitioner earned $409.40 for working for the department a total of 115 hours on 62 days.

In the May 28, 1979, accident, the petitioner fell from a fire truck as it rounded a corner. As a result, he fractured his hip and required surgical reduction. He returned to his truck-sales work on July 18, 1979, and to his duties as a volunteer fireman in the spring of 1980.

The arbitrator found that the village had provided the petitioner all necessary first aid, medical, surgical and hospital services. Relying upon section 10(f) of the Act and upon evidence of earnings for full-time firefighters with three years of experience in Hinsdale and Oak Brook, nearby communities sized comparably to the village, the arbitrator further found that the petitioner's average weekly wage was $298.71. That amount represented the average of the stipulated average weekly wage of firefighters in Hinsdale and the stipulated average weekly wage of firefighters in Oak Brook. The arbitrator awarded the petitioner compensation for 7 2/7 weeks temporary total incapacity and compensation for permanent partial loss of 50% use of the left leg.

On review, the village presented as additional evidence information concerning the wages of firefighters in the all-volunteer fire department at nearby Bolingbrook. Wages in that department averaged $2,175 annually. The Commission adopted findings of the arbitrator that the petitioner's average weekly wage was both properly determined under section 10(f) and based upon evidence of firefighter wages in Oak Brook and Hinsdale. The Commission also decreased the petitioner's award to reflect permanent loss of 35% rather than 50% of the use of his left leg.

On the village's appeal, the circuit court confirmed the decision of the Commission. The village brought the instant appeal, raising the sole issue of how the petitioner's average weekly wage should be computed. We reverse and remand.

The relevant portion of section 10, which concerns the basis for computing compensation, provides as follows:

"(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. 1979, ch. 48, pars. 138.10(d), (e), (f).

The village argues that the petitioner's average weekly wage must be determined under section 10(e) of the Act, as that section was intended to cover employment, such as the petitioner's, where the working days are intermittent. It relies largely on the persuasive authority of Baer v. City of Brookfield (Mo. App. 1963), 366 S.W.2d 469, where the court found that the wage basis for the volunteer-fireman claimant should be determined with reference to a statutory provision equivalent to section 10(e) and not with reference to a section equivalent to 10(d) of the Act.

• 1 The petitioner argues that section 10(e) is inapplicable, as his work for the village was not temporary or intermittent. He relies primarily upon Friddle v. Industrial Com. (1982), 92 Ill.2d 39, 440 N.E.2d 865. According to the petitioner, his employment lasted throughout the year as in Vaught v. Industrial Com. (1972), 52 Ill.2d 158, 287 N.E.2d 701. Further, the petitioner notes that his 24-hour, on-call employment relationship with the village was continuous and that his response to calls was regular, even though fire calls were unscheduled events at unpredictable intervals.

We reject the respondent's reliance on Baer and agree with the petitioner that his wage base should not be determined with reference to section 10(e). In rejecting the Baer analysis, we note that the Baer court considered the wage basis for the volunteer-fireman petitioner under relevant facts virtually identical to those before us. However, the Baer analysis is of limited value as it discussed workers' compensation statutory sections identical to Illinois' 10(d) and 10(e), but did not acknowledge existence of a section comparable to Illinois' 10(f). Even more importantly, the persuasive value of Baer is further limited by the fact that the Missouri court's analysis there was not affected by decisions like those in Illinois which interpret the language of subsection (e) as applying to the part-time employee "where the ...


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