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Tal Rauhoff Const. Co. v. Industrial Com.

OPINION FILED NOVEMBER 19, 1986.

TAL RAUHOFF CONSTRUCTION COMPANY, APPELLANT,

v.

THE INDUSTRIAL COMMISSION (KEVIN BURKE, APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Mary Conrad, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Plaintiff, Tal Rauhoff Construction Company (the employer), appeals from a judgment of the circuit court of Cook County confirming a decision of the Industrial Commission awarding workers' compensation benefits to defendant, Kevin Burke (the employee). The employer contests the rate at which it was ordered to pay temporary total disability benefits and an award of additional compensation under sections 19(k) and 19(l) of the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, pars. 138.19(k), (l)). We affirm in part and reverse in part.

The pertinent facts are not in dispute and may be stated briefly. The employee was a tuckpointer for the employer earning $630.55 per week when he was injured. On October 5, 1982, the employee injured his lower back while lifting materials at work. He received medical treatment, including a laminectomy, for this injury. He was totally disabled by the injury, and remained totally disabled at the time of arbitration on May 20, 1983.

The dispute before the Commission concerned the proper rate at which the employer was to pay temporary total disability benefits to the employee. Prior to arbitration, the employer paid the employee $376.33 per week in temporary total disability payments. The arbitrator found that the proper rate was $420.26 per week and that the employer had vexatiously and unreasonably underpaid compensation. He therefore found that the employee was entitled to additional compensation under sections 19(k) and 19(l) of the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, pars. 138.19(k), (l).) The Industrial Commission affirmed the decision of the arbitrator, and the circuit court confirmed the decision of the Industrial Commission.

The parties are agreed that the employee is entitled to temporary total disability compensation at the maximum rate applicable on the date of his injury. The statute establishing that maximum rate provides:

"4. All weekly compensation rates provided under subparagraphs 1 and 2 of this paragraph (b) of this Section shall be subject to the following limitations:

The maximum weekly compensation rate from the effective date of this amendatory Act of 1975, except as hereinafter provided, shall be 100% of the State's average weekly wage in covered industries under `The Unemployment Insurance Act,' that being the wage that most closely approximates the State's average weekly wage.

* * *

From July 1, 1977, and thereafter such maximum weekly compensation rate * * * for temporary total disability under paragraph (b) of this Section * * * shall be increased to 133 1/3% of the State's average weekly wage in covered industries under `The Unemployment Insurance Act.'

6. The Department of Labor and the State shall on or before the first day of December, 1977, and on or before the first day of June, 1978, and on the first day of each December and June of each year thereafter, publish the State's average weekly wage in covered industries under `The Unemployment Insurance Act' and the Industrial Commission shall on the 15th day of January, 1978 and on the 15th day of July, 1978 and on the 15th day of each January and July of each year thereafter, post and publish the State's average weekly wage in covered industries under `The Unemployment Insurance Act' as last determined and published by the Department of Labor. The amount when so posted and published shall be conclusive and shall be applicable as the basis of computation of compensation rates until the next posting and publication as aforesaid." (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(b).)

In accordance with this statute, the maximum rate for total disability for injuries occurring in the period including the date of the employee's accident was set at $420.36 per week.

The employer contends that this method of establishing maximum rates for workers' compensation benefits impermissibly delegated the General Assembly's legislative power to the Director of the Department of Labor (the Director). The argument is basically that the legislature has the power to set workers' compensation rates; the statute makes the maximum rates depend upon the State's average weekly wage under the Unemployment Insurance Act (Ill. Rev. Stat. 1985, ch. 48, par. 300 et seq.); the average weekly wage is determined by the Department of Labor (Ill. Rev. Stat. 1983, ch. 48, par. 401(B)); the Director determines "the number of individuals engaged in insured work" which is used in computing the average weekly wage; there are "no clear standards set forth within the statute to define and limit the Director's areas of discretion in the determination of the number of individuals" engaged in insured work; and, because the Director has discretion in this matter and the average weekly wage "is not a product of a purely mathematical process," the legislature improperly delegated legislative authority. Therefore, it is the employer's position that the Department of Labor set average weekly wage may not constitutionally be used as the basis for computing maximum workers' compensation benefits. Instead, the employer argues that the legislatively established rate of $228.16 per week should be used in computing maximum workers' compensation rates. (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(b)(5) ("For the purpose of this Section this State's average weekly wage in covered industries under `The Unemployment Insurance Act' on the effective date of this amendatory Act is hereby fixed at $228.16 per week and the computation of compensation rates shall be based on the aforesaid average weekly wage until modified as hereinafter provided").) It will be unnecessary to address this last claim because the computation of the average weekly wage by the Department of Labor does not constitute an improper delegation of legislative power by the General Assembly.

• 1-3 The constitution of this State provides:

"The legislative power is vested in a General Assembly * * *." (Ill. Const. 1970, art. IV, sec. 1. See also Ill. Const. 1870, art. IV, sec. 1; Ill. Const. 1848, art. III, ...


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