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January 5,2001

PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:

Respondent employer, Insulated Panel Company, appeals from theorder of the circuit court of De Kalb County confirming a decisionof the Illinois Industrial Commission (Commission). The arbitratordenied compensation to claimant, Harold J. Cuttie, Jr., but theCommission found claimant's injury "arose out of" and "in thecourse of" his employment (820 ILCS 305/2 (West 1998)) and awardedclaimant $680.71 per week for 76 6/7 weeks for temporary totaldisability (TTD), $396.89 per week for 100 weeks for 50% loss ofuse of the right leg, and $3,938.87 medical expenses. 820 ILCS305/8(a), (b), (e)(12) (West 1998).

The issues on appeal are whether (1) the circuit courtcommitted an abuse of discretion in ordering the parties to limitbriefs to 10 pages and considering only the first 10 pages ofrespondent employer's 50-page brief; (2) the Commission's findingthat an accidental injury "arose out of" and "in the course of"claimant's employment with respondent (820 ILCS 305/2 (West 1998))was contrary to law or against the manifest weight of the evidence;(3) the Commission's finding as to the average weekly wage wasagainst the manifest weight of the evidence; and (4) theCommission's finding of partial permanent disability (PPD) to theextent of 50% loss of the leg was against the manifest weight ofthe evidence. We affirm.

Claimant fell and broke his leg while on a day-longsightseeing excursion on the island of Maui, Hawaii. At that time,he was traversing lava rocks. He and two other employees ofrespondent, including respondent's president, were in Hawaii onbusiness to install an industrial freezer. The arbitrator foundthat claimant, in traversing the rocks, was taking an unreasonablerisk not foreseeable to respondent and, therefore, the accidentalinjury did not "arise out of" and "in the course of" employment. 820 ILCS 305/2 (West 1998). The Commission disagreed, finding itwas reasonable and foreseeable to anticipate that claimant wouldengage in some type of recreational activity and that the type ofactivity claimant was engaged in when injured was reasonable andforeseeable recreational activity.

The first issue is whether the circuit court committed anabuse of discretion in ordering the parties to limit briefs to 10pages and considering only the first 10 pages of respondentemployer's 50-page brief. Claimant argues that respondent has notpreserved this issue for review by this court because the circuitcourt order limiting pages in the parties' briefs was not referredto in the notice of appeal. An order limiting the pages of briefsis a step in the procedural progression of the ultimate orderaffirming the Commission and is reviewable. See Jiffy LubeInternational, Inc. v. Agarwal, 277 Ill. App. 3d 722, 726, 661N.E.2d 463, 467 (1996).

The circuit court has an inherent power to control its owndocket, and the ruling limiting briefs to 10 pages was not an abuseof discretion. See Bodine Electric v. City of Champaign, 305 Ill.App. 3d 431, 435, 711 N.E.2d 471, 474 (1999) (defining abuse ofdiscretion). Additionally, we note that the parties at oralargument agreed that the trial court did not limit oral argumentbefore making its decision.

We next consider whether the Commission's finding that anaccidental injury "arose out of" and "in the course of" claimant'semployment with respondent (820 ILCS 305/2 (West 1998)) wascontrary to law or against the manifest weight of the evidence. Itis undisputed that claimant was a traveling employee when he wasinjured.

"Under a traveling employee analysis, determination ofwhether an injury arose out of and in the course of theemployee's employment depends on the reasonableness ofthe employee's conduct at the time of the injury andwhether the employer could anticipate or foresee theemployee's conduct or activity. Johnson, 278 Ill. App.3d at 64; Bailey, 247 Ill. App. 3d at 208; Howell Tractor& Equipment Co., 78 Ill. 2d at 574. See Wright, 62 Ill.2d at 70; David Wexler & Co., 52 Ill. 2d at 510; Ace PestControl, 32 Ill. 2d at 388-89; Chicago Bridge & Iron, 248Ill. App. 3d at 694. Under this approach, Illinoiscourts have repeatedly held that, even though therecreational activities of a traveling employee falloutside the scope of employment, any injuries incurredduring those activities are compensable under the Act aslong as the recreational activity and the employee'sconduct were reasonable and foreseeable. Howell Tractor& Equipment, 78 Ill. 2d at 574; Wright, 62 Ill. 2d at 71;Johnson, 278 Ill. App. 3d at 64; Bailey, 247 Ill. App. 3dat 208. See also David Wexler & Co., 52 Ill. 2d at 510-11. This added protection is afforded under the Actbecause '[i]t is expected that an employee working out oftown will seek some type of recreational activity on hisdays of rest' (Wright, 62 Ill. 2d at 71) and that '"[i]twould be obviously unreasonable and contrary to theintendment of the [Workers'] Compensation Act and itspurposes to say that a traveling employee has theprotection of the Act only when in the physical act ofperforming [her] duties and only in the course of anormal business day"' (Wright, 62 Ill. 2d at 71, quotingWexler, 52 Ill. 2d at 511)." Bagcraft Corp. v.Industrial Comm'n, 302 Ill. App. 3d 334, 338, 705 N.E.2d919, 921-22 (1998).

In Bagcraft, the employee was injured while riding an all-terrain vehicle at the lodge in which he was staying after theconclusion of the business meeting he attended on that day. Bagcraft, 302 Ill. App. 3d at 337, 705 N.E.2d at 920-21. Respondent cites Jensen v. Industrial Comm'n, 305 Ill. App. 3d 274,711 N.E.2d 1129 (1999), in which the employee was also injuredwhile riding an all-terrain vehicle. In Bagcraft, as well asJensen, we affirmed the Commission's decision. In this case,claimant, accompanied by the president of respondent and anotheremployee, were on a sightseeing trip in Maui on their only day offsince going there to install an industrial freezer. While walkingtoward a lagoon in an unrestricted area, they walked on lava rocksthat formed the coastline. When claimant stepped on one of thelava rocks, it gave way and he fell about 20 feet.

The reasonableness and foreseeability of a travelingemployee's recreational activities are facts to be determined bythe Commission. Respondent argues that the facts are undisputed,creating a question of law. However, when divergent inferences mayreasonably be drawn from undisputed facts, a question of fact ispresented. Sorenson v. Industrial Comm'n, 281 Ill. App. 3d 373,381, 666 N.E.2d 713, 718 (1996). Here, divergent inferences couldhave been drawn, and the factual determinations by the Commissionare reviewed on the manifest weight of the evidence standard. Beattie v. Industrial Comm'n, 276 Ill. App. 3d 446, 449, 657 N.E.2d1196, 1199 (1995).

The activity was reasonable and foreseeable to the respondentemployer, particularly when claimant was invited to participate andwas accompanied by the president of the company. Respondent'sattempt to color the activity as unreasonable and unforeseeablebecause, as the lava rocks got bigger, claimant had to jump betweenthem, does not require a different result. As this court stated inBeattie, "[t]he test is not whether this or any other tribunalmight reach the opposite conclusion, but whether there wassufficient factual evidence *** to support the Commission'sdetermination." Beattie, 276 Ill. App. 3d at 450, 657 N.E.2d at1199. The Commission's finding that the activity was reasonableand foreseeable was not against the manifest weight of theevidence.

The third issue concerns the Commission's finding as to theaverage weekly wage. The four statutory methods for calculatingaverage weekly wage were recently discussed by this court inSylvester v. Industrial Comm'n, 314 Ill. App. 3d 1100, 1106-07, 732N.E.2d 751, 756 (2000).

Based on respondent's exhibit No. 3, a wage statement, theCommission found claimant missed 49 days in the prior 52 weeks, andhis compensation during that period was $43,089.04. Fifty-twoweeks times five days equals 260 days. Subtracting 49 days from260 days leaves 211 days, or 42.2 weeks. The Commission thendivided $43,089.04 by 42.2 weeks and arrived at an average weeklywage of $1,021.07.

Respondent refers to the arbitrator's calculations. Thearbitrator divided $43,089.04 by 51 weeks and arrived at an averageweekly wage of $844.88. Respondent makes two contentions: (1)"overtime" pay should not be included in the calculation of theaverage weekly wage, and (2) the method of calculating the averageweekly wage used by the Commission was inappropriate.

We reject respondent's second contention. Based on theSylvester decision, the Commission properly used the secondstatutory method. Sylvester, 314 Ill. App. 3d at 1107, 732 N.E.2dat 756; see also D.J. Masonry Co. v. Industrial Comm'n, 295 Ill.App 3d 924, 932-34, 693 N.E.2d 1201, 1206-08 (1998).

As to the first contention, respondent argues that its exhibitNo. 3 included overtime pay that should not have been included inthe calculation of the average weekly wage. See Edward HinesLumber Co. v. Industrial Comm'n, 215 Ill. App. 3d 659, 666-67, 575N.E.2d 1234, 1238-39 (1990) (Commission properly calculated averageweekly wage based on hours regularly worked at straight-time rate). This contention has been waived.

Respondent did not argue that a portion of the $43,089.04 ofclaimant's total earnings in the 52-week period prior to injuryshould not be considered because it was overtime pay. Argumentsnot made before the Commission are waived. Taylor Coal Co. v.Industrial Comm'n, 301 Ill. 381, 387-88, 134 N.E.2d 169, 171(1922); Stephens v. Industrial Comm'n, 284 Ill. App. 3d 269, 273,671 N.E.2d 763, 766 (1996). Here, the proper method forcalculating the average weekly wage was an issue before theCommission, but the argument respondent now presents on judicialreview was not made to the Commission.

The final issue is whether the Commission's finding of PPD tothe extent of 50% loss of the leg was against the manifest weightof the evidence. The Commission found claimant permanentlypartially disabled to the extent of 50% of the right leg. 820 ILCS305/8(e)(12) (West 1998). Respondent argues that claimant had anopen fracture of the right ankle and, therefore, the award shouldhave been a percentage of loss of the right foot rather than theleg. See 820 ILCS 305/8(e)(11) (West 1998). Respondent cites nolegal authority that requires such an interpretation of section8(e) of the Act or otherwise requires such a result. See OutboardMarine Corp. v. Industrial Comm'n, 309 Ill. App. 3d 1026, 1029-30,723 N.E.2d 835, 837-38 (2000) (discussing loss of fingers versusloss of a hand). In light of the Commission's expertise, itsfindings on disability are given substantial deference. English v.Industrial Comm'n, 151 Ill. App. 3d 682, 686, 502 N.E.2d 1247, 1249(1986) (discussing the appropriate percentage of partial disabilityunder the facts of that case).

The Commission correctly found that claimant suffered severely comminuted displaced fractures of the distal tibia andfibula with posterior malleolar component for which he underwentopen reduction and internal fixation with a pin. An "ankle" is thejoint between the foot and the leg. Webster's Third NewInternational Dictionary 86 (1986). The tibia and fibula are legbones. Stedman's Medical Dictionary 650 (fibula), 1813 (tibia)(26th ed. 1995). The Commission's finding that claimant waspermanently partially disabled to the extent of 50% of the rightleg was not against the manifest weight of the evidence. Moreover,injury to the bones and ligaments of the ankle may be compensableas a percentage loss of the leg. See Loggins v. Mallory CapacitorCo., 344 So. 2d 522 (Ala. App. 1977).

The order of the circuit court of De Kalb County confirmingthe Commission's decision is affirmed.

Affirmed.

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