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Flynn v. Industrial Commission

June 16, 2003

LARRY FLYNN, APPELLANT,
v.
INDUSTRIAL COMMISSION, ET AL. (UTICA TOWNSHIP AND CUSTODIAN OF THE SECOND INJURY FUND, APPELLEE).



Appeal from Circuit Court of LaSalle County No. 2001MR169 Honorable Eugene P. Daugherity, Judge Presiding.

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

UNPUBLISHED

Claimant Larry Flynn appeals from the order of the circuit court of LaSalle County confirming a decision of the Illinois Industrial Commission (Commission). The arbitrator found that claimant sustained an accidental injury arising out of and in the course of his employment with respondent Utica Township on January 17, 1997; awarded claimant 7 1/7 weeks temporary total disability (TTD) (820 ILCS 305/8(b) (West 1996)); determined that claimant's average weekly wage for TTD was $56 per week based on the rate of pay in the job he was performing for respondent at the time of injury; and awarded claimant a wage differential benefit of $362.36 per week for the duration of the disability (820 ILCS 305/8(d)(1) (West 1996)) based on two-thirds of the difference between the $360 per week claimant was earning at the time of the arbitration hearing and the $903.60 he could have earned as a truck driver.

The Commission, in a decision written by Commissioner Diane Dickett Smart, with two commissioners dissenting in part and concurring in part, modified the arbitrator's decision. The majority of the Commission determined that claimant was not concurrently employed with another employer at the time of injury and his average weekly wage was $56 per week. As a result, the Commission further found that section 8(d)(1) of the Workers Compensation Act (Act) (820 ILCS 305/8(d)(1) (West 1996)) was not applicable to this case and awarded claimant $56 per week for 160 weeks for loss of use of 100% of the left eye due to enucleation of the eye. 820 ILCS 305/8(e)(13) (West 1996). Commissioner Douglas F. Stevenson dissented on the basis that claimant was an independent contractor and not an employee of respondent, but supported the finding that, if it was employment, this was serial rather than concurrent employment. Commissioner Stevenson stated that, if there was employment, he agreed with the modification of the award. Commissioner Barbara A. Sherman also concurred in part and dissented in part. She agreed with the finding of an accidental injury arising out of and in the course of claimant's employment with respondent, but dissented on the concurrent employment issue and the determination that section 8(d)(1) of the Act was not applicable.

On appeal, the issues are whether claimant (1) was concurrently employed and his average weekly wage should have been calculated based on consideration of wages from both jobs, not just his employment with respondent, and (2) proved entitlement to a wage differential award. We affirm.

Claimant, a 44 year old farmer/truck driver, testified that on January 16, 1997, Jerry Cary, respondent's road commissioner, contacted claimant by telephone to inquire whether respondent could rent claimant's large snowblower. The snowblower attached to claimant's tractor. When claimant agreed, Cary asked if he could hire claimant to operate the machine. Claimant agreed and took the machine to Lone Tree Road. Cary and three other of respondent's employees were there. Because the snow continued to blow and drift, Cary asked claimant to stop and return the next day. On January 17, claimant arrived at Lone Tree Road at 7 a.m. Cary and the same three employees were at the site. They cleared the road in a couple of hours and proceeded to Jim Doherty Road. After Jim Doherty Road was cleared, Cary asked respondent to go to the Seneca Manor subdivision. While working at Seneca Manor, the shaft of the snowblower sheared. Claimant had repaired this malfunction in the past, and he went to his own garage for tools and a new part. While using the chisel, it popped up and struck him in the eye.

Surgeries were performed on January 17, 1997, and January 30, 1997. A surgical enucleation of the eye was performed. Claimant was subsequently fitted with a prosthetic eye. Due to loss of sight in the left eye, he was unable to get licensed by the Department of Transportation for driving a truck in 1998.

Claimant had been employed by Dick Nelson since about 1979. From that time through 1997, he was employed on a seasonal basis by one of Nelson's asphalt companies, LaSalle County Asphalt or Advanced Asphalt. Claimant would be off work as an asphalt truck driver through the winter months, working from March or April through November or December, depending on the weather. He was a member of Illinois Conference of Teamsters, Local 722 (Teamsters Local No. 722), and during the winter layoffs he signed onto the union's "out of work" list. Nelson or one of his supervisors would generally call him directly to return to work each spring. He signed the out of work list in case any work was available with any other companies during the winter and to hold his place on the list in case Nelson's companies went out of business. Claimant resided on a farm that he rented from his mother. He did not file for unemployment benefits during winter layoffs because he raised livestock that he sold and he would not have qualified for unemployment benefits. Claimant owned a tandem truck. When working for Nelson's companies, he was paid an hourly wage as well as for the hourly use and rental of the truck. Although no records in evidence demonstrated how claimant's pay was apportioned, claimant testified that his hourly pay of $46 included $19.65 for wages and $26.35 for use of the truck. In the spring, claimant was generally contacted by Nelson or one of his supervisors rather than being hired off the union's out of work list. He occasionally operated Nelson's company equipment, such as a water truck, and loaded his own truck a couple of times a day. Claimant received a 1099 form for non-employee income from Nelson's companies, and those companies did not deduct or withhold taxes or "FICA" from his income. Claimant had not been called back to work for Nelson in January or February between 1993 and 1997, but had been called back in March 1994 to haul debris. He also had been called in the wintertime for private asphalt work. Nelson's companies never paid or reimbursed claimant for truck repairs, gas, oil, or insurance. He paid his own union dues. Claimant was bound by the collective bargaining agreement, and to his knowledge, so was Nelson. Claimant signed the union out of work list in 1994, 1995, and 1997, and to the best of his knowledge he did so in 1996. If the union records showed he did not sign in 1996, he would not dispute that.

The Teamsters Local 722 out of work lists were placed into evidence and showed that claimant signed the lists in November 1994, November 1995, and December 1997, but not at any time in 1996. The collective bargaining agreement between the Teamsters and various contractors was also placed in evidence. It indicated that, at the time of the arbitration hearing, claimant was scheduled to earn $22.59 per hour.

Claimant testified that, three or four days after the accident, Sue Calkins, respondent's treasurer-secretary, contacted claimant and asked where his check should be sent. Although Cary said he would pay claimant $50 per hour for the use of the machine and $25 per hour as wages, she wanted to know if it was okay to pay him $67 per hour for the machine and $8 per hour for wages because that was what other employees of respondent earned. Claimant agreed and was paid for seven hours work. The W-2 form designated the income as "wages/other compensation," and showed that deductions were made, although claimant was unclear for what the deductions were made. He could not recall receiving a 1099 form from respondent. He did not fill out any paperwork or forms for respondent, and his agreement with respondent was oral.

Cary testified he was aware claimant worked for LaSalle County Asphalt or Owen Seibert when he hired him. He contacted claimant because he knew claimant had the equipment respondent needed and claimant was ready, willing and able to work.

Tax documents placed in evidence included claimant's 1966 1099-MISC forms reporting he had non-employee compensation of $58,350 from LaSalle County Asphalt and $987 from Advanced Asphalt. The W-2 form from respondent showed $56 in wages in 1997 with deductions taken for social security and state and medicare taxes. Claimant's 1996 Federal income tax return showed wages of $5,704, but claimant testified that figure consisted entirely of wages his wife earned on the farm. The return also showed $46,798 in business income and a farm loss of $12,948. The schedule C showed claimant made a gross profit of $59,338 from his trucking business and the $46,798 was net profit. Schedule F showed farm income of $72,264, $67,784 of which came from the sale of livestock, and total expenses of $85,212. Claimant completed a Schedule SE for calculating one-half of the self-employment tax and took a deduction for self-employed health insurance. The Commission found claimant's testimony regarding these tax records vague. Claimant said, "I give it to the tax man. What he does with it I don't know."

Claimant testified that, he was permitted to return to employment on about March 9, 1997. He worked around the farm and went back to work for LaSalle County Asphalt in 1997. After the Department of Transportation was unable to license him in 1998, he looked for another job. He had a high school education. Outside of trucking and working on the farm, he had no job skills. He placed into evidence a job search log that supported his testimony of contacting and applying to several companies. He continued to work on the farm in 1998. He was eventually hired by Illinois Security Service as a part-time security guard. At the time of the arbitration hearing, he had advanced to full-time employment, was working as an armed guard at an off track betting facility, and was being paid $9 per hour. He earned no wages from working on the farm but did derive income from it.

Generally, the Commission's determinations of questions of fact will not be set aside unless they are against the manifest weight of the evidence, and even where the facts are undisputed, a question of fact is presented to the Commission if divergent inferences could reasonably be drawn from the undisputed facts. Metropolitan Water Reclamation District of Greater Chicago v. Industrial Comm'n, 272 Ill. App. 3d 732, 734, 650 N.E.2d 671, 673 (1995). However, to the extent the determination of the issues on appeal involve statutory ...


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