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Mason Manufacturing, Inc. v. Industrial Commission

June 21, 2002

MASON MANUFACTURING, INC., APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL., (CHRISTOPHER FLANAGAN, APPELLEE.)



Appeal from the Circuit Court of Macon County No. 00MR482 Honorable Scott B. Diamond, Judge Presiding.

The opinion of the court was delivered by: Justice Rarick

Released for publication.

MASON MANUFACTURING, INC., APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL., (CHRISTOPHER FLANAGAN, APPELLEE.)

Appeal from the Circuit Court of Macon County No. 00MR482 Honorable Scott B. Diamond, Judge Presiding.

The opinion of the court was delivered by: Justice Rarick

Claimant, Christopher Flanagan, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)) for injuries sustained while in the employ of Mason Manufacturing, Inc. (Mason). Flanagan injured his left knee when he fell from a ladder. Flanagan's primary employment was with the Norfolk and Southern railroad. Mason was a secondary job at which Flanagan worked occasionally. Mason was aware of Flanagan's employment with the railroad and that such job was his primary employment. Flanagan had worked for Mason four or five times during the previous five years. He would work several days to several weeks. His current session of employment was in its fourth day when the accident occurred. Prior to the current session, Flanagan had not worked for Mason for several years.

As a result of his injuries, the arbitrator determined that Flanagan could not return to his former employment either at the railroad or at Mason. Pursuant to section 10 of the Act, the arbitrator determined Flanagan's average weekly wage by adding the $420 Flanagan had earned while working for Mason, which represented one week's pay, with the $35,418.37 he earned working for the railroad, for a total of $35,838.37. The arbitrator divided this sum by 52 to reach an average weekly wage of $689.20. The arbitrator also ordered Mason to pay weekly maintenance benefits in the amount of $459.47 until Flanagan completed computer aided drafting degree at the local community college.

The Industrial Commission (Commission), with one Commissioner dissenting, modified the decision of the arbitrator, finding that Flanagan's average weekly wage was $1,101.12. The Commission divided the $35,418.37 Flanagan earned working for the railroad by 52, giving an average weekly wage of $681.12. It then divided the $420 Flanagan earned for one week's work at Mason by one, to determine an average weekly was of $420. The Commission then added these two figures to derive a total average weekly wage of $1,101.12.

The Commission's decision was confirmed by the circuit court of Macon County.

On appeal, Mason argues that the Commission erred in determining Flanagan's average weekly wage. Mason maintains that Flanagan's employment with it was sporadic in nature and of limited duration, and that the Commission's award results in a windfall to Flanagan.

Section 10 of the Act provides in pertinent 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; ***. 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 1998).

In Sylvester v. Industrial Comm'n, 197 Ill. 2d 225, 756 N.E.2d 822 (2001), our supreme court noted that section 10 provides four methods of calculating average weekly wage: (1) by default, average weekly wage is "actual earnings" during the 52-week period preceding the date of injury, illness or disablement, divided by 52; (2) if the employee lost five or more calendar days during that 52-week period, "whether or not in the same week," then the employee's earnings are divided not by 52, but by "the number of weeks and parts thereof remaining after the time so lost has been deducted;" (3) if the employee's employment began during the 52-week period, the earnings during employment are divided by "the number of weeks and parts thereof during which the employee actually earned wages;" and (4) if the employment has been of such short duration or the terms of the employment of such casual nature that it is "impractical" to use one of the other three methods to calculate average weekly wage "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." Sylvester, 197 Ill. 2d at ___, 756 N.E.2d 822.

In determining Flanagan's average weekly wage, the Commission relied on Village of Winnetka v. Industrial Comm'n, 250 Ill. App. 3d 240, 621 N.E.2d 150 (1993). In Village of Winnetka, the claimant worked as a trash collector for the Village. He had a second job as a limousine driver for Lois Limo. The parties stipulated that the claimant's average weekly wage from his employment with the Village was $540.90. The claimant had also earned $1,662.64 in nine weeks working for Lois Limo. The Commission determined the claimant's average weekly wage with Lois Limo to be $184.74. The Commission arrived at this figure by dividing the $1,662.64 he had ...


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