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04/12/89 Peoria Roofing and Sheet v. the Industrial Commission

April 12, 1989

PEORIA ROOFING AND SHEET METAL COMPANY, APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (TIMOTHY J. FARMER, APPELLANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT, INDUSTRIAL COMMISSION DIVISION

537 N.E.2d 381, 181 Ill. App. 3d 616, 130 Ill. Dec. 314 1989.IL.515

Appeal from the Circuit Court of Peoria County; the Hon. William J. Voelker, Jr., Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. McNAMARA, WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

The parties agree that the petitioner-appellant, Timothy J. Farmer, was injured in a compensable accident during his employment with the respondent-appellee, Peoria Roofing and Sheet Metal Company. The Industrial Commission (Commission) awarded temporary total disability benefits under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). The circuit court reversed the Commission's calculation of the petitioner's average weekly wage (wage). This appeal concerns only the wage calculation.

The petitioner roofer was injured on November 4, 1986. The petitioner testified that he began working for the respondent nine years prior to the accident. In the 52 weeks preceding his accident, he had worked solely for the respondent and he had considered himself a full-time employee. He had worked in 43 calendar weeks, a total of 134 days. He earned a total of $17,859.50; his latest hourly wage was $18.09.

Because of a strike, the petitioner did not work during 4 of the 52 weeks preceding his accident. He testified that of the other days he did not work, one he missed because of illness. The other days he did not work because the respondent had sent other workers rather than the petitioner. He acknowledged that the weather as well as his status as a nonforeman, non-family-member employee affected availability of his work.

In calculating the petitioner's average weekly wage under section 10 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.10), the Commission determined the petitioner's average weekly wage for the year preceding the accident by dividing the petitioner's total earnings for that year by one-fifth the number of calendar days in which he had worked that year. The circuit court reversed. The court recalculated the wage by dividing the petitioner's earnings by the number of calendar weeks during which the petitioner worked at least one day.

Section 10 provides as follows:

"The compensation shall be computed on the basis of the 'Average weekly wage' which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee's last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52; but if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted. Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee actually earned wages shall be followed. Where by reason of the shortness of the time during which the employee has been in the employment of his employer or of the casual nature or terms of the employment, it is impractical to compute the average weekly wages as above defined, regard shall be had to the average weekly amount which during the 52 weeks previous to the injury, illness or disablement was being or would have been earned by a person in the same grade employed at the same work for each of such 52 weeks for the same number of hours per week by the same employer." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 48, par. 138.10.

The petitioner argues that the Commission properly interpreted the emphasized language of section 10 and determined his wage by dividing his year's earnings by one-fifth the number of calendar days he worked in the year. He argues that the plain language of the statute unambiguously requires this approach. He similarly argues that the court's interpretation ignores the section's emphasized phrase "and parts thereof." Also, he argues both that the Commission's analysis here was consistent with the analysis the Commission used in several comparable cases and that the analysis comports with the Act's purpose of protecting employees. Regarding the resulting "windfall," the petitioner cites Hardin Sign Co. v. Industrial Comm'n (1987), 154 Ill. App. 3d 386, 506 N.E.2d 1066, asserting that the Act was intended to replace an injured worker's lost earning power, not merely to project his probable loss of future income.

The respondent, on the other hand, argues that the legislature's apparent intention in the emphasized section 10 was to calculate the petitioner's wage by dividing his earnings by the number of calendar weeks (e.g., Sunday-through-Saturday periods) during which he had worked. It asserts both that the language of section 10 does not provide for creating "fictional weeks" (i.e., consolidated five-day groups of days worked), and that the language of section 10 should not be mechanically used to reach that result.

The parties properly focus on the emphasized section 10 provision which covers an employee who lost five or more calendar days of work in the 52 weeks preceding his accident. The later, alternative provision, which the respondent has also argued, covers employees with casual nature or terms of employment which make it impractical to compute the average weekly wage under the former provision. There are no such "casual nature or terms of the employment" here. Prior to his accident, the petitioner had worked for the respondent for many years. During the relevant year before the accident, the petitioner had worked for no one else. Also, the evidence suggests that although the availability of work varied, the respondent was able to depend upon the petitioner for full-time, not merely ...


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