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Zanger v. Industrial Commission

August 05, 1999

LLOYD ZANGER, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. MIKE TOURNEAR CONSTRUCTION CO., APPELLEE.



Appeal from Circuit Court of Adams County No. 98MR17 Honorable Mark A. Schuering, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

Claimant Lloyd Zanger appeals from the order of the circuit court of Adams County confirming the decision of the Illinois Industrial Commission (Commission). Respondent employer is Mike Tournear Construction Company. The arbitrator awarded claimant temporary total disability in the amount of $104 per week for 53 2/7 weeks (820 ILCS 305/8(b) (West 1996)) and $88.90 per week for 94.75 weeks for permanent partial disability due to loss of use of the right foot to the extent of 45% and 5% of the man as a whole (820 ILCS 305/8(e)(11), (d)(2) (West 1996)). The arbitrator denied claimant's claim for payment of a $236.46 medical bill from Quincy Medical Group for treatment on August 14, 1996. The Commission modified the decision of the arbitrator by awarding the claimant the $236.46 in medical expenses (820 ILCS 305/8(a) (West 1996)) and affirmed the remainder of the arbitrator's decision.

The issue on appeal is whether the Commission finding that claimant's average weekly wage, $104, was against the manifest weight of the evidence. We affirm. Only those facts necessary to an understanding of this court's Disposition will be discussed.

Claimant testified that on February 22, 1993, while working for respondent doing carpentry work constructing a pole barn machine shop, a gust of wind broke loose the side he was working on, pushing his ladder over backward and causing him to fall. At that time, he was being paid $8 per hour. He worked whenever weather permitted, and he maintained 13 hours per week. In that way, it did not "mess up my unemployment." He received $300 per week in unemployment benefits. Every two weeks he reported what he was earning to the Department of Employment Services. He worked the agreed 13 hours per week every week beginning with the week ending January 9, 1993, through February 20, 1993. Exhibits were admitted into evidence showing his gross pay was $104 per week. The exhibits also demonstrated the wages of other employees of respondent.

He was previously employed by Huck Fixture Company (Huck Fixture) in January 1991 and was laid off by Huck Fixture in September 1992. Claimant attempted to testify that a 1992 W-2 form showed he earned $21,788.43 while working at Huck Fixture in 1992. This exhibit was rejected prior to his testimony. Respondent objected to the testimony on the basis that it referred to a hearsay document that claimant was trying to authenticate. The objection was sustained. Claimant's attorney did not attempt to use the document to refresh claimant's recollection of how much he earned while working for Huck Fixture in 1992. No offer of proof was made.

The arbitrator calculated claimant's average weekly wage at $104 ($8 x 13 hours). 820 ILCS 305/10 (West 1996). The claimant's request to include unemployment compensation in the calculation was rejected by the arbitrator. The arbitrator found that unemployment compensation was neither earnings nor wages.

In affirming the arbitrator's decision as to average weekly wage, the Commission stated:

"The Commission relies on Le Roy Jacobs v. Industrial Comm'n (2nd Dist 1995)[,] 206 Ill. Dec. 945 at 948, 646 N.E.2d 312, 269 Ill. App. 3d 444[,] to affirm the Arbitrator's calculation of the average weekly wage. Petitioner worked for Huck Fixtures for 31 weeks of the 52 weeks preceding his accident. He was on indefinite layoff from Huck fixtures [sic] for at least five months when he was injured. His situation was much different from the sheet metal worker/claimant in the Jacobs case.

The Commission also notes that Petitioner's claimed wage calculation is based on earnings going back to January 1, 1992, more than 52 weeks prior to his injury. Petitioner also bases his claim of nine months work for Huck on the calendar year rather than on the period 52 weeks before his injury. The Commission relies on the requirement of §10 of the Act."

Claimant has the burden of proving, by a preponderance of the evidence, the elements of his claim (Cook v. Industrial Comm'n, 231 Ill. App. 3d 729, 731, 596 N.E.2d 746, 748 (1992)), including his average weekly wage. Ricketts v. Industrial Comm'n, 251 Ill. App. 3d 809, 810, 623 N.E.2d 847, 848 (1993). At the time of the injury, section 10 of the Workers' Compensation Act (Act) stated in relevant part:

"The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be 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. *** When the employee is working concurrently with two or more employers and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation." 820 ILCS 305/10 (West 1996). The Commission's wage determination is a question of fact that the reviewing court will not overturn on review unless it is contrary to the manifest weight of the evidence. Ogle v. Industrial Comm'n, 284 Ill. App. 3d 1093, 1096, 673 N.E.2d 706, 708-09 (1996).

In Smith v. Industrial Comm'n, 170 Ill. App. 3d 626, 631-32, 525 N.E.2d 81, 84 (1988), the Commission took the pay stubs and divided their number into claimant's regular earnings during the period. The Commission determined that the pay stubs were the only precisely verifiable means of establishing the number of weeks claimant worked. In Smith, the court explained:

"[T]he only substantive difference between the computation of the average weekly wage of short or casual employments and other employments is that actual regular weekly earnings are used to determine the latter, whereas probable regular weekly earnings are used to determine the former. We therefore conclude that this language was chosen to correct the inequity which results when an injured seasonal or intermittent employee is given less generous benefits than his more steadily employed counterpart even though the seasonal or intermittent employee is deprived of the ability to take other employment which would have been available to him had he not been injured. (Cf. Village of Clarendon Hills v. Industrial Comm'n (1986), 149 Ill. App. 3d 994, 999, 501 N.E.2d 179, 182.) In short, ...


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