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10/25/96 GLEN OGLE v. INDUSTRIAL COMMISSION ET AL.

October 25, 1996

GLEN OGLE, APPELLEE/APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL., (WELDED TUBE OF AMERICA, APPELLANT/APPELLEE.)



Appeal from the Circuit Court of Cook County, Illinois. No. 91L50552. Honorable Joanne L. Lanigan, Judge, Presiding.

Rehearing Denied December 17, 1996. Released for Publication December 22, 1996.

The Honorable Justice Holdridge delivered the opinion of the court. McCULLOUGH, P.j., and Rakowski, Colwell, and Rarick, JJ., concur.

The opinion of the court was delivered by: Holdridge

JUSTICE HOLDRIDGE delivered the opinion of the court:

Claimant, Glen Ogle, filed a claim pursuant to the Illinois Workers' Compensation Act (Act) (Ill. Rev. Stat. 1979, ch. 48, et seq.) for injuries sustained on October 27, 1979, while employed by Welded Tube of America (employer). The arbitrator found claimant's accident was causally connected to his present condition of ill-being, and awarded him, inter alia, $252.49 per week in permanent total disability (PTD) benefits for life, based upon an average weekly wage (AWW) of $378.73. The arbitrator also awarded claimant $1054.20 in moving expenses, which were characterized as medical treatment.

The Commission, with one dissent, determined that claimant's AWW was $253.04, and consequently reduced his PTD benefits to $168.69 per week. In reaching this decision, the Commission determined that fringe benefits and overtime should be excluded in calculating claimant's AWW. The Commission also denied claimant moving expenses as medical treatment.

The circuit court confirmed the Commission's exclusion of fringe benefits from the AWW calculation, however, it found that the Commission erred as a matter of law by excluding overtime hours from its calculation of AWW. The court ordered claimant's AWW increased to $313.93. The court also confirmed the Commission's denial of moving expenses as medical treatment.

The employer appeals from the circuit court's reversal of the Commission's exclusion of overtime hours from its AWW calculation. The claimant cross-appeals from the circuit court's affirmance of the Commission's exclusion of fringe benefits from its AWW calculation, and the Commission's denial of moving expenses as medical treatment. The appeals were consolidated, and we will address all issues raised therein.

Claimant first contends that the value of fringe benefits, i. e. pension contributions, etc., should have been included in his AWW calculation. Claimant failed, however, to offer any evidence to establish that fringe benefits were paid to him by the employer based upon the number of hours commonly regarded as a day's work for his employment. In fact, these fringe benefits were paid not to claimant, but rather, paid directly to the union. Section 10(g) of the Act makes no reference to the inclusion of fringe benefits in determining an employee's compensation of "salary, wages or earnings." The language of a statute must be given its plain and ordinary meaning, and if legislative intent may be ascertained from the language itself, it must prevail. Illinois Power Co. v. Mahin, 72 Ill. 2d 189, 21 Ill. Dec. 144, 381 N.E.2d 222 (1978). It is not the function of this court to include the value of fringe benefits in the definition of earnings where the legislature has omitted such value from section 10(g). Therefore, we find that the Commission did not err in its exclusion of fringe benefits from the AWW calculation.

Claimant next contends that the Commission erred in excluding the hours compensated at overtime rate from his AWW calculation. Parties' rights under the Act are governed by the law in effect at the time of the injury. Sroka v. Industrial Comm'n, 412 Ill. 126, 131, 105 N.E.2d 716 (1952). It is undisputed that at the time of claimant's injury, sections 10(a) & (g) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.10(a)(g)), which defines AWW by salary, wages or earnings, were in effect, and stated:

"(a) The compensation shall be computed on the basis of the annual earning which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.

***

(g) Earning, for the purpose of this section, shall be based on the earnings for the number of hours commonly regarded as a day's work for that employment, and shall exclude overtime earnings." (Emphasis added.)

Section 10(g) establishes that earnings are based upon the earnings for the number of hours commonly regarded as a day's work for that employment. We agree that overtime earnings are specifically excluded by the Act, ( Kidd v. Industrial Comm'n, 85 Ill. 2d 534, 537-8, 55 Ill. Dec. 497, 426 N.E.2d 822 (1981)), however, we note that ...


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