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Sylvester v. Industrial Commission

IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT Industrial Commission Division


May 2, 2000

RONALD SYLVESTER, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (ACME ROOFING & SHEET METAL COMPANY, APPELLEE).

Appeal from Circuit Court of McLean County No. 98MR140 Honorable Luther H. Dearborn, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice McCULLOUGH

On March 20, 1992, claimant, Ronald W. Sylvester, was injured while working for Acme Roofing and Sheet Metal Company. On June 4, 1997, an arbitrator determined, inter alia, that claimant's average weekly wage prior to his accident was $368.43. On November 13, 1998, the Industrial Commission (Commission) affirmed the arbitrator's determinations. On April 14, 1999, the circuit court confirmed the Commission. Claimant appeals, arguing that the Commission erred with respect to its calculation of claimant's average weekly wage. We affirm.

On March 20, 1992, claimant fell approximately 16 feet from the bed of a truck, sustaining serious injuries. The arbitrator found that claimant lost 100% of his right leg and 65% of his left foot. Claimant received $560 per week in temporary total disability benefits (TTD) for 180 weeks. For the next 50 weeks, Acme paid claimant $228 per week in TTD benefits.

Claimant's work schedule was determined in large part by the weather. Of the days that work was available, claimant generally worked and did not miss more than 5 such days in the preceding 52 weeks. Claimant acknowledged that his contract did not guarantee 40 hours of work per week and that he often worked less than 5 days per week and less than 40 hours per week. In fact, during the winter season claimant regularly worked less than 40 hours and received unemployment compensation. As a condition to receiving unemployment compensation, claimant testified that he could work no more than five hours per week. During those periods, he would perform emergency repairs or patch leaks until the weather broke and he could return.

Claimant submitted a wage summary in which he calculated his average weekly wage at $695.75. Claimant did not testify as to the formula that he used to calculate this figure. However, it appears from claimant's brief and the wage summary submitted by both parties that claimant counted the total number of days worked during the previous 52 weeks, which totaled 131. Claimant then divided 131 by 5 (representing a full work week) to arrive at 26.2. Next, claimant divided what he perceived as his total earnings for the previous 52 weeks, $18,228.55, by 26.2, and arrived at an average weekly wage of $695.75.

On May 30, 1997, the arbitrator entered her award. Among other findings, the arbitrator disagreed with claimant's assessment of his average weekly wage. The arbitrator found that, during the year prior to claimant's injury, Acme paid claimant for working 48 of 52 weeks. During that period, claimant worked a full week less than half of the time and often worked only a single day per week. The arbitrator determined that claimant earned $17,684.41 during this period and divided that amount by 48, arriving at an average weekly wage totaling $368.43. On November 13, 1998, the Commission affirmed. On April 14, 1999, the circuit court confirmed the determination of the Commission, finding that the Commission's decision was not contrary to the manifest weight of the evidence. On May 5, 1999, claimant filed a notice of appeal to this court.

On appeal, claimant argues that the Commission's determination of claimant's average weekly salary was against the manifest weight of the evidence. Claimant has the burden of proving, by a preponderance of the evidence, the elements of his claim, including his average weekly wage. Zanger v. Industrial Comm'n, 306 Ill. App. 3d 887, 890, 715 N.E.2d 767, 769 (1999). The Commission's determination of claimant's wages is a question of fact that a reviewing court will not disturb unless it is contrary to the manifest weight of the evidence. Zanger, 306 Ill. App. 3d at 890, 715 N.E.2d at 769. The basis for computing a claimant's average weekly earnings is governed by section 10 of the Workers' Compensation Act (Act), which states in relevant part:

"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." (Emphasis added.) 820 ILCS 305/10 (West 1998).

Claimant argues that the Commission misinterpreted the language of the statute with regard to partial weeks worked and ignored the clear meaning of the phrase "parts thereof." 820 ILCS 305/10 (West 1998). Therefore, we address whether the Commission utilized the proper formula in calculating the average weekly earnings for an employee working partial weeks.

While several cases exist that address average weekly wages (see, e.g., Illinois-Iowa Blacktop, Inc. v. Industrial Comm'n, 180 Ill. App. 3d 885, 536 N.E.2d 1008 (1989)), four have squarely addressed the issue in the same context within which we are dealing. Of these four cases, two calculation formulas have been utilized. Under the first formula, which might be referred to as the "full-weeks-worked formula," the Commission divided the total days worked over the previous 52 weeks by 5 (representing a full 5-day workweek). This figure represented the total number of "full weeks worked." Then, the Commission divided the total earnings for the previous 52 weeks by the number of "full weeks worked." This figure represented claimant's average weekly earnings. In the instant case, claimant's calculation of his average weekly earnings essentially utilizes the "full-weeks-worked formula." In contrast, under the second formula, which might be called the "total-weeks-worked formula," the Commission divided claimant's earnings over the previous 52 weeks by the total number of weeks in which claimant worked at least 1 day (48). This figure represented claimant's average weekly earnings. We have affirmed the Commission in cases using either method.

In the first case, Peoria Roofing & Sheet Metal Co. v. Industrial Comm'n, 181 Ill. App. 3d 616, 537 N.E.2d 381 (1989), the claimant was a roofer whose work schedule was significantly affected by the weather. In the previous 52 weeks, claimant worked a total of 134 days in 43 calendar weeks (averaging slightly more than 3 days per week). The Commission essentially used the "full-weeks-worked formula" to determine average weekly wage by dividing claimant's total earnings for the previous 52 weeks by one-fifth the number of calendar days that claimant worked that year. The circuit court reversed, and on appeal, the employer argued that section 10 did not provide for "'fictional weeks' (i.e., consolidated five-day groups of days worked), and that the language of section 10 should not be mechanically used to reach that result." Peoria Roofing, 181 Ill. App. 3d at 619, 537 N.E.2d at 383. We reversed the circuit court and reinstated the Commission's determination, stating:

"The [employer's] interpretation of the emphasized section 10 language strain[ed] the plain meaning of the phrase 'and parts thereof.' It effectively equates all calendar weeks during which [claimant] did any work, regardless of how many days he worked during the week. Whereas one day is, in fact, only a fraction of a work week, the [employer] would seek to have one isolated day in a calendar week regarded as a 'week,' not as a fractional 'part thereof.'

Also, under the [employer's] analysis, section 10's provision for employees who 'lost 5 or more calendar days' is superfluous except for employees who 'lost' full calendar weeks of employment. Under the [employer's] analysis, any employee who 'lost 5 or more calendar days,' but nonetheless worked in every calendar week, would have his average wage calculated based on a 52-week year, just as under the initial provision of section 10." Peoria Roofing, 181 Ill. App. 3d at 620, 537 N.E.2d at 383- 84.

Three years later, in Cook v. Industrial Comm'n, 231 Ill. App. 3d 729, 596 N.E.2d 746 (1992), we addressed this issue again. In Cook, claimant worked at least 1 day per week in 24 of the 52 weeks prior to his injury. During that period, claimant worked only 3 full, 40-hour weeks. The majority of weeks claimant worked less than 5 full days and less than 40 hours per week. The Commission utilized the "total-weeks- worked formula," dividing claimant's total earnings for the previous 52- week period by 24, the number of weeks in which claimant actually worked. On appeal, claimant essentially argued that the "full-weeks- worked formula" was the appropriate manner in which to calculate his average weekly earnings. We found that claimant failed to provide the Commission with any "other documentary evidence [or] *** sworn testimony" relating to claimant's wages and noted the deferential standard accorded to the Commission's factual determination of average weekly wage. Cook, 231 Ill. App. 3d at 731, 596 N.E.2d at 747-48. We concluded that "[t]he only recourse to the Commission, based strictly upon the evidence before it, was to divide claimant's total wages by the number of weeks claimant worked, as reflected in the evidence." Cook, 231 Ill. App. 3d at 731-32, 596 N.E.2d at 748.

We further concluded in Cook that, even under different circumstances, claimant's computation of his average weekly earnings under the "full-weeks-worked formula" might be inappropriate. We recognized that this conclusion was contrary to that reached in Peoria Roofing, but we further recognized that Peoria Roofing was not in line with an earlier supreme court case, Hasler v. Industrial Comm'n, 97 Ill. 2d 46, 454 N.E.2d 307 (1983). In Hasler, our supreme court stated that "the purpose of the Act is to compensate, or 'make whole,' an injured employee, not to provide a windfall. To hold otherwise would create a situation in which it is more advantageous, financially, to be injured than to be employed." Hasler, 97 Ill. 2d at 52, 454 N.E.2d at 310.

In Ricketts v. Industrial Comm'n, 251 Ill. App. 3d 809, 623 N.E.2d 847 (1993), the Commission determined that claimant worked for four days over a three-week period and essentially applied the "total-weeks-worked formula." The Commission multiplied claimant's hourly wage of $14.85 by 32 hours, equaling total wages of $475.20, which it then divided by 3, to arrive at an average weekly wage of $158.40. On review, the circuit court reversed and applied the "full-weeks-worked formula" to arrive at an average weekly wage of $594. We reversed the circuit court and reinstated the Commission's determination, again noting that claimant had the burden of establishing his weekly average earnings, that "[t]he evidence presented by claimant was less than clear or comprehensive," and "[c]laimant's testimony concerning his prior employment was, to say the least, equivocal and unsubstantiated." Ricketts, 251 Ill. App. 3d at 810, 623 N.E.2d at 848.

We also expressed concern that the "full-weeks-worked formula" could lead to an improper windfall and rejected claimant's argument that the Commission misinterpreted the phrase "number of weeks or parts thereof" as contained in section 10, stating:

"If this were true then the determination of the average weekly rate would, in virtually every case, be literally based upon the number of hours a less-than-'full-time' employee worked multiplied upward to fill out a complete 40-hour week--even if the employee never worked a 40-hour week during his entire life. Moreover, if the legislature intended such a result, there would be no need whatsoever for the alternative methods of calculating the wage provided by section 10 of the Act.

Under the evidence presented in this case, the Commission's determination is consistent with the statute. When the employment is noncontinuous or less than 'full-time,' earnings may be divided by an entire workweek even if the employee worked only a portion of the week." Ricketts, 251 Ill. App. 3d at 812, 623 N.E.2d at 849.

In D.J. Masonry Co. v. Industrial Comm'n, 295 Ill. App. 3d 924, 929, 693 N.E.2d 1201, 1204 (1998), claimant testified that he worked a 40-hour workweek when the weather permitted and when work was available. However, long periods of time typically passed when he could not work. The Commission applied the "full-weeks-worked formula" by dividing 204 (representing the total number of days claimant worked) by 5 (representing a full workweek) to reach 40.8 (representing the number of full workweeks). The Commission then divided $23,496.88 (representing claimant's total earnings over the previous 52 weeks) by 40.8, to arrive at an average weekly wage of $575.90. This figure yielded a compensation rate of $383.93 in weekly TTD benefits.

On appeal to this court, the employer argued that the Commission's calculation was erroneous and that $383.93 per week represented a windfall for claimant because $575.90 per week over 52 weeks totaled $29,946.80, which was $6,449.92 more than the $23,496.88 that he made over the previous 52-week period. We found that the Commission had sufficient evidence before it to compute claimant's earnings and that it properly "divided *** the 'number of weeks and parts thereof remaining after the time so lost ha[d] been deducted.'" D.J. Masonry, 295 Ill. App. 3d at 933, 693 N.E.2d at 1207, quoting 820 ILCS 305/10 (West 1994). We further noted that the Commission's calculation comported with section 10 and was therefore not against the manifest weight of the evidence. D.J. Masonry, 295 Ill. App. 3d at 933, 693 N.E.2d at 1207. With regard to the issue of windfall, we found that the employer's figure of $29,946.80 was misleading insofar as claimant would not receive that amount. Rather, since claimant would receive TTD benefits of $383.93, his total benefits over 52 weeks would total $19,964.36. Therefore, the Commission's award reasonably represented claimant's earning potential. D.J. Masonry, 295 Ill. App. 3d at 934, 693 N.E.2d at 1208.

We could conclude that these cases are, for the most part, reconcilable. In each case, we conducted fact-specific inquiries and addressed whether the Commission's factual determination of claimant's average income was against the manifest weight of the evidence. Our central inquiry in all four of these cases was whether the Commission's calculation adequately and reasonably represented claimant's earning potential without awarding him or her a substantial windfall. See D.J. Masonry, 295 Ill. App. 3d at 934, 693 N.E.2d at 1208; see also Village of Winnetka v. Industrial Comm'n, 250 Ill. App. 3d 240, 244-45, 621 N.E.2d 150, 153 (1993) (comparing the Commission's findings to claimant's previous wages to determine whether it fairly represents claimant's earning power at the time of his injury). In each case, we found that evidence existed supporting the Commission's factual determination, and we affirmed or reinstated its decision.

However, if we were to reconcile Cook, Peoria Roofing, Ricketts, and D.J. Masonry in this manner alone, we would fail to resolve the ultimate issue of which statutory interpretation (i.e., which formula) is correct. Section 10 of the Act must be interpreted uniformly and fairly. At that point, arbitrators, the Commission, and circuit court judges will have clear and appropriate guidance, and parties will know where they stand.

As the foregoing discussion indicates, case law exists arguably supporting the use of either method. To the extent that we held in Ricketts that the "total-weeks-worked formula" strains the plain language of the phrase "and parts thereof" (see Ill. Rev. Stat. 1991, ch. 48, par. 138.10 (now 820 ILCS 305/10 (West 1998))), our statutory construction analysis led us to an opposite conclusion in Peoria Roofing and Ricketts. See Peoria Roofing, 181 Ill. App. 3d at 619-20, 537 N.E.2d at 383; Ricketts, 251 Ill. App. 3d at 812, 623 N.E.2d at 849. When a statute can be reasonably interpreted in two different ways, it is ambiguous. People v. Holloway, 177 Ill. 2d 1, 8, 682 N.E.2d 59, 63 (1997). Clearly, section 10 is susceptible to multiple interpretations. See also Village of Winnetka, 250 Ill. App. 3d at 244, 621 N.E.2d at 153 (noting that "the statutory computation is somewhat ambiguous"). In such cases, courts should, if possible, utilize the interpretation that best effectuates or furthers the statute's purpose. In re Petition of K.M., 274 Ill. App. 3d 189, 195, 653 N.E.2d 888, 893 (1995).

As previously stated, the purpose of section 10 is to "compensate, or 'make whole,' an injured employee, not to provide a windfall. To hold otherwise would create a situation in which it is more advantageous, financially, to be injured than to be employed." Hasler, 97 Ill. 2d at 52, 454 N.E.2d at 310. To the extent that Cook and Ricketts criticized the "full-weeks-worked formula," the majority of such criticism focused on the formula's tendency to award claimants an undeserved and substantial windfall. See Cook, 231 Ill. App. 3d at 732- 33, 596 N.E.2d at 748-49; Ricketts, 251 Ill. App. 3d at 811, 623 N.E.2d at 848-49.

We conclude that the "total-weeks-worked formula" is better suited to effectuate the intent of the legislature insofar as it tends to avoid the possibility of an undeserved and substantial windfall. This formula operates to prevent employees working less than full weeks from elevating their weekly average wages to equal that of their full-time counterparts. In other words, the "total-weeks-worked formula" most accurately represents a claimant's earning capacity at the time of his or her accident and is therefore most appropriate. That is not to say that the Commission's calculation must exactly match the employee's actual preinjury wage. The Commission's computation may be somewhat higher or lower than the employee's actual preinjury wage, so long as it is not abnormally high or abnormally low. See D.J. Masonry, 295 Ill. App. 3d at 933, 693 N.E.2d at 1207-08.

Turning to the instant case, the Commission found that claimant accrued pay in 48 of the previous 52 weeks. The Commission then used the "total-weeks-worked formula" by dividing claimant's total annual pay ($17,684) by 48 and arrived at an average weekly wage of $368.43. Following this approach, claimant would be entitled under section 8(b) of the Act (820 ILCS 305/8(b) (West 1998)) to 66 2/3% of that amount, or approximately $243 per week. Over a 52-week period, claimant would receive $12,636, compared with $17,684.41, the amount he received during the year prior to his injury. We conclude that the Commission used the appropriate formula to determine claimant's average weekly wage.

Further, in light of the federal tax code excluding workers' compensation awards as income (26 U.S.C. §104(a)(1) (1994)), the Commission's determination adequately represents claimant's preinjury earning power and therefore is not against the manifest weight of the evidence.

For the foregoing reasons, we affirm the circuit court's judgment.

Affirmed.

RAKOWSKI, COLWELL, HOLDRIDGE, and RARICK, JJ., concur.

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