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McDaneld v. The Industrial Commission

October 01, 1999


Appeal from the Circuit Court of Clinton County. No. 97-MR-44

The opinion of the court was delivered by: Justice Colwell

Honorable Kathleen P. Moran, Judge, presiding.

JUSTICE COLWELL delivered the opinion of the court:

Claimant, Lonnie McDaneld, twisted his knee while working as a volunteer fireman for respondent, Kell Community Fire Department. In October 1995, an arbitration hearing was held on claimant's application for adjustment of claim. After the arbitrator rendered an award partially in his favor, claimant appealed. The Industrial Commission (Commission) modified the arbitrator's decision, awarding claimant temporary total disability (TTD) benefits, permanent partial disability (PPD) benefits, and medical expenses pursuant to sections 8(b), 8(e), and 8(a), respectively, of the Workers' Compensation Act (Act) (820 ILCS 305/8(b), (e), (a) (West 1992)). The circuit court of Clinton County confirmed, and claimant appeals. On appeal, claimant maintains that the Commission erred in calculating his average weekly wage and that the Commission's TTD and PPD awards were against the manifest weight of the evidence. We affirm.

On November 1, 1993, the day he twisted his knee, claimant was working three jobs: part-time as a volunteer fireman, full-time as a carpenter, and part-time as a life insurance salesman. Claimant also worked on his 55-acre farm and his mother's 80-acre farm, raising cattle and cultivating crops.

Claimant began working as a volunteer fireman for respondent around 1975. He worked 10 to 15 hours a week for respondent but never received wages for his work. At some point claimant became a supervisor/fire chief, though in that position he continued fighting fires.

As a carpenter, claimant remodeled buildings and built additions on homes. By October 1993 he was learning to do finishing work, which was "lighter" work than remodeling was. His boss was named James Watts. Claimant made himself available to Watts eight hours a day, five days a week, and testified that he worked "at least eight hours" a day for Watts. However, according to claimant, because of weather, absence of materials, and absence of work, he did not always work every day of the week. Claimant missed "more than five days of work with Mr. Watts" in the year preceding his injury.

Watts paid claimant $7.50 per hour, and tax forms revealed that claimant earned $4,717.23 working for Watts from January 1, 1993, to October 31, 1993 (a period of 44 weeks). Claimant introduced no evidence of his earnings from Watts prior to January 1, 1993, and the record is unclear as to exactly when claimant began working for Watts. Respondent did not possess claimant's employment record with Watts, and it therefore did not introduce any evidence on the matter.

Claimant began selling life insurance part-time for Franklin Life Insurance (Franklin) in 1992. On November 1, 1993, claimant was operating under a written contract with Franklin which stated that claimant was an independent contractor. (Accordingly, in calculating claimant's average weekly wage, the arbitrator excluded claimant's earnings from Franklin.) On November 19, 1993, claimant signed a new contract with Franklin which made him a full-time salesman. Franklin paid claimant on a commission-only basis. Claimant earned $2,926.96 from Franklin in 1992 and $3,630.46 in 1993. As of October 1995, he was earning over two times more money as a full-time salesman than he earned as a part-time salesman.

On November 1, 1993, claimant was in the fire department when a call came in. He ran through a doorway to his truck, turned, and twisted his left knee. Claimant was taken to St. Mary's Hospital in Centralia for X rays. The St. Mary's staff concluded that claimant suffered a left knee sprain.

Because the pain in his left knee did not subside, claimant visited Dr. Behrooz Heshmatpour, an orthopedic specialist, on November 6. Dr. Heshmatpour ordered an MRI, which revealed a complete tear of the medial meniscus of the left knee and degenerative arthritis. According to Dr. Heshmatpour, the arthritic condition of claimant's left knee preceded claimant's injury. Dr. Heshmatpour performed surgery on claimant's meniscus on November 23, 1993. Claimant underwent physical therapy through December 1993, missing one day of therapy. Dr. Heshmatpour questioned claimant's compliance with the physical therapy recommendations he gave.

Claimant visited Dr. Heshmatpour on January 19, 1994. Dr. Heshmatpour's notes from that day stated that claimant "may return back to light work with limited walking and stair climbing." Dr. Heshmatpour next saw claimant on April 14, 1994, and concluded that the surgery was a success. He discharged claimant and indicated that claimant had reached his maximum medical improvement.

On May 17, 1994, Dr. William Costen examined claimant at the request of respondent. Claimant complained of pain in his left knee, especially when squatting or going up stairs. Dr. Costen opined that claimant had reached his maximum medical improvement and that he needed no further medical treatment. Dr. Costen advised claimant that he could continue performing his supervisory duties as a fire chief, but that he should avoid heavy firefighting work. Furthermore, since claimant's carpentry work required him to climb ladders and squat, Dr. Costen found it appropriate that claimant avoid that work as well.

Claimant returned to Dr. Heshmatpour on August 11, 1994, still complaining of left knee pain. Dr. Heshmatpour examined claimant, and the results were normal. Claimant saw Dr. Heshmatpour again in September 1995, and Dr. Heshmatpour concluded that there was nothing seriously wrong with claimant's knee. ...

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