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06/15/94 JEFFREY MCANALLY v. BUTZINGER BUILDERS AND

June 15, 1994

JEFFREY MCANALLY, PLAINTIFF-APPELLANT,
v.
BUTZINGER BUILDERS AND STATE FARM FIRE & CASUALTY COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 93-MR-219. Honorable George J. Moran, Judge Presiding.

Chapman, Lewis, Welch

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Jeffrey McAnally, a carpenter employed by Butzinger Builders, sustained a left wrist injury and filed a workers' compensation claim. The arbitrator found that McAnally could not return to work as a carpenter and further found that plaintiff was entitled to receive a wage differential award based on his prior earnings as a carpenter and his current earnings, $5 an hour, as a deliveryman. On April 30, 1990, the arbitrator filed her memorandum of decision, which included the following findings:

"On April 16, 1987, * * * McAnally * * * sustained accidental injuries * * *.

"The earnings of the Petitioner during the year next preceding the injury were $33,280 and that the average weekly wage was $640.

Petitioner is entitled to have and receive from said respondent the sum of $426.62 per week for a period of 78 2/7 weeks, that being the period of temporary total incapacity for work, for which compensation is payable.

The sum of $39,142.52 has been paid on account of this injury.

Petitioner is entitled to have and receive from Respondent the sum of $293.30 per week for a further period of life, as provided in paragraph (d)(1) of Section 8 of [the Workers' Compensation] Act [(Ill. Rev. Stat. 1989, ch. 48, par. 138.8(d)(1))], as amended, because the injuries sustained caused the Petitioner to become partially incapacitated from pursuing his usual and customary line of employment.

The sum of $293.30 equals 66 2/3% of the difference between the average amount of $640.00 per week which the Petitioner would be able to earn in the full performance of the duties in the occupation in which Petitioner was engaged at the time of the accident and the average amount of $200.00 per week which the Petitioner is earning or is able to earn in some suitable employment after the accident.

The Petitioner is now entitled to receive from Respondent compensation that has accrued from April 16, 1987 through March 5, 1990 and the remainder, if any, of the award to be paid to Petitioner by Respondent in weekly payments." The Industrial Commission affirmed the decision of the arbitrator.

Butzinger Builders appealed the Industrial Commission's decision to the circuit court, which affirmed, and on March 8, 1993, the appellate court affirmed the order of the circuit court (Butzinger Builders v. Industrial Comm'n (March 8, 1993), No. 5-92-0225WC (order pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23))). On April 1, 1993, Butzinger Builders offered McAnally $48,870.92, which it calculated as the balance due on the differential effective prospectively from the filing of the arbitrator's decision of April 30, 1990. McAnally refused to accept the $48,980.92 as payment in full and filed a complaint for entry of judgment pursuant to section 19G of the Workers' Compensation Act (820 ILCS 305/19G (West 1992)), naming both Butzinger Builders and its insurer, State Farm Fire & Casualty Company (State Farm), as defendants. The trial court granted State Farm's motion to dismiss State Farm and also granted Butzinger Builder's motion to dismiss the complaint as insufficient as a matter of law. McAnally appeals. We affirm in part and reverse in part and remand.

The complaint alleges in pertinent part that:

"3. At all times hereinafter mentioned, Defendant STATE FARM FIRE and CASUALTY COMPANY insured Defendant BUTZINGER BUILDERS under a policy providing ...


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