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06/03/94 FOREST CITY ERECTORS v. INDUSTRIAL

June 3, 1994

FOREST CITY ERECTORS, APPELLANT/CROSS-APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL. (DANIEL W. WAJERSKI), APPELLEE/CROSS-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 92 L 50907 (consolidated with 92 L 50910). Honorable Alexander P. White Judge Presiding.

Released for Publication August 2, 1994.

Slater, McCULLOUGH, Rakowski Woodward, Rarick

The opinion of the court was delivered by: Slater

JUSTICE SLATER delivered the opinion of the court:

The claimant, Daniel W. Wajerski, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.). Claimant sought to recover benefits for an injury he sustained while working as an ironworker for the employer, Forest City Steel Erectors.

The arbitrator found that the claimant's injury arose out of and in the course of his employment and that as a result of the injury he was temporarily totally disabled for 80-5/7 weeks. The arbitrator also found that the claimant was permanently incapacitated from pursuing the occupation he was engaged in at the time of the injury and awarded him $380.53 per week for the duration of his disability pursuant to section 8(d)(1) of the Act (Ill. Rev. Stat. 1991, ch. 48, par. 138.8(d)(1)). The Industrial Commission (the Commission) affirmed the arbitrator's decision but modified the amount awarded to $313.51 per week. The circuit court confirmed the Commission's decision. The employer now appeals and the claimant cross-appeals. We affirm.

The record shows that the claimant was hired by the employer in September of 1988 to work as a journeyman ironworker. In November claimant was promoted to foreman. Claimant earned $19.27 per hour while working as an ironworker and an additional $1 per hour while working as a foreman. During the 14-week period that claimant worked for the employer prior to his injury, he worked an average of 44.7 hours per week, and his average weekly wage was $807.70. On December 27, 1988, claimant slipped and fell while walking down a ramp at a job site, fracturing his left ankle. There is no dispute that, as a result of his injury, the claimant is unable to perform his regular duties as an ironworker.

Two witnesses testified at arbitration regardingthe amount of work available to ironworkers. Frank Pauley, secretary-treasurer of local number one of the Iron Workers' Union, testified that a normal work week for a journeyman ironworker is 40 hours of work. According to Pauley, the job of an ironworker is full-time, not seasonal work, and ironworkers can work 52 weeks per year. Franklin Miezio, who had worked as a foreman for the employer, testified that claimant questioned him in October of 1988 regarding the amount of work available and whether he would be kept on the job. Miezio told claimant that the employer had "10 months to a year's work" available. Miezio also signed a letter at claimant's request indicating that the employer had work available for at least one year and that Miezio had requested that claimant remained employed for that period.

In addition to the testimony related above, a document entitled "Employee Pension History File List" was admitted into evidence. According to Pauley, the document was prepared by the pension fund office of the union and it shows the years in which the claimant worked as an ironworker and the number of hours worked in those years. That information is summarized as follows:

Year Hours

1971 1,057.00

1972 1,826.00

1973 1,880.00

1974 1,975.00

1975 1,594.00

1976 781.00

1977 710.00

1978 --

1979 1,230.00

1980 503.00

1981 857.00

1982 ...


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