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04/08/88 David Smith, Appellee and v. the Industrial Commission

April 8, 1988

DAVID SMITH, APPELLEE AND CROSS-APPELLANT

v.

THE INDUSTRIAL COMMISSION ET AL. (NORRIS FARMS, APPELLANT AND CROSS-APPELLEE)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

525 N.E.2d 81, 170 Ill. App. 3d 626, 121 Ill. Dec. 275 1988.IL.498

Appeal from the Circuit Court of Peoria County; the Hon. Robert E. Manning, Judge, presiding.

APPELLATE Judges:

JUSTICE CALVO delivered the opinion of the court. BARRY, P.J., and McCULLOUGH, McNAMARA, and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CALVO

Claimant, David Smith, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) for a leg injury which arose out of and during the course of his employment with Norris Farms. An arbitrator found claimant's average weekly wage to be $51.78 (Ill. Rev. Stat. 1983, ch. 48, par. 138.10) and denied claimant's request for penalties under sections 19(k), 19(l) and 19(m) (Ill. Rev. Stat. 1983, ch. 48, pars. 138.19(k), (l), (m)). On review initiated by claimant, the Industrial Commission found claimant's average weekly wage to be $232.32. It modified the arbitrator's award to $178.02 for 53 3/7 weeks of temporary total disability and awarded claimant a $500 penalty pursuant to section 19(l). On review initiated by both parties, the circuit court confirmed the Industrial Commission determination. Both parties appeal to this court. The facts are as follows.

On October 16, 1984, the 29-year-old claimant was shoveling corn for the employer when his right leg got caught in an auger, causing its amputation below the knee. The employer acknowledged in a settlement with the United States Department of Labor that the safety equipment on the auger which caused claimant's injury violated the Federal Occupational Safety and Health Act (29 U.S.C. § 651 et seq.).

Immediately after the injury, the employee's insurance carrier paid claimant $35.80 per week for seven weeks of temporary total disability. Prior to the December 5, 1984, arbitration hearing, the employer admitted that it failed to include approximately two weeks of employment in computing the average weekly wage and that, as a consequence, claimant was entitled to $47.93 per week for this seven-week period.

Claimant testified that prior to 1984 he worked for the employer several times on an intermittent basis. When he was not working for the employer, claimant engaged in trapping, farm labor, and truck driving. Claimant presented no written records of his monetary compensation for these activities.

On September 10, 1984, claimant went to work for the employer. He was paid a wage of $4.25 per hour, with overtime pay (time and a half) for over 10 hours per day or over 50 hours per week. Pay stubs from September 10 through the date of injury show that for the pay period ending September 19 claimant was paid for 90 regular hours and 31 overtime hours, for the pay period ending October 5 claimant was paid for 100 regular hours and 55 overtime hours, and for the pay period ending October 19, claimant was paid for 80 regular hours and 36 overtime hours. The October 19 pay stub shows claimant's regular earnings to date as $1,194.26.

Ray Rhoades, the employer's comptroller, testified that between October 16, 1983, and October 16, 1984, the employer paid claimant a total of $2,692.58. This sum consisted of bonuses and wages for the following employment periods: In 1983, claimant worked nine days in the two-week pay period ending October 21 and two days for the pay period ending November 4. Thus, claimant worked a total of 11 days for the employer from October 16, 1983, through the end of the year. In 1984, claimant worked one day for the pay period ending May 25 and full weeks from September 10 through the date of the injury.

On the basis of this evidence and in accordance with his interpretation of section 10, the arbitrator divided the amount of money claimant earned from October 16, 1983, through October 16, 1984 ($2,692.58), by 52 weeks, which resulted in an average weekly wage determination of $51.78. The Industrial Commission, without stating reasons, differed with the arbitrator's interpretation of section 10, apparently concluding that claimant's employment period was less than 52 weeks and should be so computed. Moreover, the Industrial Commission found that the only proof as to the precise number of weeks or parts thereof worked by claimant was shown on the pay stubs submitted for the weeks between September 10, 1984, and the pay period during which the injury occurred. Accordingly, the Industrial Commission recomputed the claimant's average weekly wage during this period to be $232.32 ($1,194.26 divided by 5 1/7 weeks). The Industrial Commission further found that claimant was entitled to $500 pursuant to section 19(l) because the employer waited 50 days before paying the difference between the amount of money originally paid to claimant ($35.80 per week) and the amount admittedly due ($47.93 per week). However, the Industrial Commission found no penalties under section 19(k) because there was a legitimate issue as to claimant's average weekly wage and no penalties under section 19(m) because the Federal Occupation Safety and Health Act preempts enforcement of this provision.

On appeal, the employer contends (1) that the Industrial Commission's determination of claimant's average weekly wage is contrary to section 10, and (2) that the Industrial Commission's award of penalties under section 19(l) was improper. On cross-appeal, the claimant contends that the Industrial ...


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