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Sylvester v. Industrial Commission

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 ...


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