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12/24/96 MICHAEL DOLCE v. INDUSTRIAL COMMISSION

December 24, 1996

MICHAEL DOLCE, PLAINTIFF-APPELLANT,
v.
THE INDUSTRIAL COMMISSION, (SOUTHWEST BEER DISTRIBUTORS), RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County, Illinois. No. 95L50536. Honorable Alexander White, Judge Presiding.

Released for Publication February 13, 1997.

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

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Employee, Michael Dolce, appeals from the circuit court's judgment confirming the Industrial Commission's decision denying him temporary total disability (TTD) benefits and allowing Southwest Beer Distributors (Southwest) a credit of $23,952.63 for TTD paid to him pursuant to the Workers Compensation Act (Act).

Dolce sought benefits pursuant to the Act for a knee injury sustained while he was working for Southwest. Southwest paid him benefits for his periods of absence, but claimed a credit for all TTD paid. The arbitrator awarded Southwest credit for the TTD it had paid, and the Commission affirmed the decision. On judicial review, the circuit court remanded the matter to the Commission to consider additional aspects relating to Dolce's TTD benefits. Upon reviewing the cause, the Commission found that Dolce was not entitled to TTD benefits, and the circuit court confirmed the Commission's decision. We affirm.

The record shows that Dolce was employed at Southwest in 1987 as a "keg helper." On September 14, 1987, Dolce injured his knee during a beer delivery. Because of his injury, Dolce was unable to work at Southwest for a total of 86 5/7 weeks between 1987 and 1990. Southwest paid Dolce TTD benefits for this period, but claimed a credit for all TTD paid.

In addition to his job at Southwest, Dolce sold real estate on a part-time basis. He used the offices of ERA R.M. Post (Post), a real estate agency, in exchange for a percentage of commissions from his real estate sales. Under his signed agreement with Post, Dolce was an independent contractor, and Post had no obligation or liability to him for worker's compensation, payroll taxes, and other taxes or liabilities. According to the agreement, Dolce was paid under the bonus program, and held the position of sales associate. Dolce testified that he sold real estate on the weekends and in the evenings, but that there was no set number of hours he had to work weekly.

Dolce started selling real estate in 1985. In 1987, before his injury, Dolce completed nine sales. In 1988, Dolce completed fourteen sales earning $22,155.31, and in 1989 he completed twenty six sales earning $36,534.09. After his knee surgery in July 1990, Dolce was able to, but chose not to return to work at Southwest. Instead, he became a sales associate at Re/Max First, a real estate agency. Between January 1990 and July 1990, Dolce completed nineteen sales earning $28,220.18.

At the arbitration hearing, Southwest did not dispute that Dolce injured his knee in the course of his employment. Further, Southwest did not dispute that Dolce was unable to work at Southwest for several different periods between 1987 and 1990. Instead, Southwest stated that Dolce was not temporarily and totally disabled during the period he was unable to work at Southwest because he earned income as a real estate associate during this period. Dolce contended that he was not an "employee" of Post, and that his income from Post was simply occasional income that did not amount to employment that negated his TTD benefits.

The arbitrator awarded Dolce $840 in unpaid medical expenses and 60% loss of use of the right leg pursuant to sections 8(a) and 8(e) of the Act. The arbitrator also awarded Southwest credit for all TTD it paid upon finding that Dolce worked regularly and continuously during the entire claimed period of disability. The Commission affirmed and adopted the arbitrator's decision.

On appeal, the circuit court remanded the matter to the Commission to consider matters related to Dolce's entitlement to TTD benefits. Specifically, the circuit court asked the Commission to determine: (1) whether Dolce had a second job on a continuous and regular basis in addition to his job with Southwest prior to his injury; (2) if not, whether Dolce's part-time employment in 1987 was for occasional income requiring him to perform only some useful services; (3) whether Dolce increased the amount of time he spent earning the income in 1988, 1989, and 1990; and (4) after considering these matters, whether Dolce was entitled to any TTD benefits during any time of the claimed disability period.

On remand, the Commission found that Dolce was not entitled to TTD benefits. The Commission stated that from the evidence and testimony presented, it could not draw an inference "one way or another as to whether [Dolce], prior to the accident, had a second employment on a continuous and regular basis in addition to his job with [Southwest]." The Commission added that the record showed that Dolce's part-time real estate employment in 1987 did not result in occasional income, and that Dolce increased the amount of time he spent earning income from real estate in 1987 through 1990. Finally, the Commission stated that Dolce did not meet his burden of proving that he earned only occasional wages through ...


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