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28 June 2000

PRESIDING JUSTICE McCULLOUGH delivered the opinion ofthe court:

On March 20, 1992, claimant, Ronald W. Sylvester, wasinjured while working for Acme Roofing and Sheet Metal Company. On June 4, 1997, an arbitrator determined, inter alia, thatclaimant'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, thecircuit court confirmed the Commission. Claimant appeals,arguing that the Commission erred with respect to its calculationof claimant's average weekly wage. We agree and reverse andremand.

This court rendered an opinion affirming the circuitcourt's order. Claimant filed a petition for rehearing. We nowdeny the petition for rehearing but withdraw our opinion filedApril 21, 1998, and by this opinion, reverse the circuit court ofMcLean County.

On March 20, 1992, claimant fell approximately 16 feetfrom the bed of a truck, sustaining serious injuries. His rightleg was amputated below the knee and he sustained injury to hisleft foot. The arbitrator found that claimant lost 100% of hisright leg and 65% of his left foot. Claimant received $560 perweek in temporary total disability benefits (TTD) for 180 weeks. For the next 50 weeks, Acme paid claimant $228 per week in TTDbenefits.

Claimant testified that he was employed by respondentfor 19 years and, at the time of injury, was a roofing foremanearning $21 per hour. If the weather permitted and the respondent had work available, claimant would work. It is uncontradicted that he was on call with respondent if work was available,he did not call respondent for work, respondent called claimant,he had no other employment, and he was not self-employed. Thewage summary confirms that claimant would be called to work five-hour stints during the time when full-time work was not availableand claimant was receiving unemployment compensation. Althoughthe parties do not agree as to the meaning of the collective-bargaining agreement, they do agree that a workweek is 40 hours. During the winter season, claimant regularly worked less than 40hours and received unemployment compensation. As a condition toreceiving unemployment compensation, claimant testified that hecould work no more than five hours per week. The payroll recordsverify that he generally worked for respondent, while receivingunemployment compensation, performing emergency repairs or patchleaks, 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 nottestify as to the formula that he used to calculate this figure. However, it appears from claimant's brief and the wage summarysubmitted by both parties that claimant counted the total numberof days worked during the previous 52 weeks, which totaled 131. Claimant then divided 131 by 5 (representing a full workweek) toarrive at 26.2. Next, claimant divided what he perceived as histotal 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. Thearbitrator found that, during the year prior to claimant'sinjury, Acme paid claimant for working 48 of 52 weeks. Thearbitrator determined that claimant earned $17,684.41 during thisperiod and divided that amount by 48, arriving at an averageweekly wage totaling $368.43. On November 13, 1998, the Commission affirmed and adopted the decision of the arbitrator. OnApril 14, 1999, the circuit court confirmed the determination ofthe Commission. On May 5, 1999, claimant filed a notice ofappeal to this court.

On appeal, claimant argues that the Commission'sdetermination of claimant's average weekly salary was against themanifest weight of the evidence. Claimant has the burden ofproving, by a preponderance of the evidence, the elements of hisclaim, including his average weekly wage. Zanger v. IndustrialComm'n, 306 Ill. App. 3d 887, 890, 715 N.E.2d 767, 769 (1999). The Commission's determination of claimant's wages is a questionof fact that a reviewing court will not disturb unless it iscontrary to the manifest weight of the evidence. Zanger, 306Ill. App. 3d at 890, 715 N.E.2d at 769. The basis for computinga claimant's average weekly earnings is governed by section 10 ofthe Workers' Compensation Act (Act) (820 ILCS 305/10 (West1998)), which states in relevant part:

"The compensation shall be computed onthe basis of the 'Average weekly wage' whichshall mean the actual earnings of the employee in the employment in which he wasworking at the time of the injury during theperiod of 52 weeks ending with the last dayof 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 injuredemployee lost 5 or more calendar days duringsuch period, whether or not in the same week,then the earnings for the remainder of such52 weeks shall be divided by the number ofweeks and parts thereof remaining after thetime so lost has been deducted. Where theemployment prior to the injury extended overa period of less than 52 weeks, the method ofdividing the earnings during that period bythe number of weeks and parts thereof duringwhich the employee actually earned wagesshall be followed. Where by reason of theshortness of the time during which the employee has been in the employment of hisemployer or of the casual nature or terms ofthe employment, it is impractical to computethe average weekly wages as above defined,regard shall be had to the average weeklyamount which during the 52 weeks previous tothe injury, illness or disablement was beingor would have been earned by a person in thesame grade employed at the same work for eachof such 52 weeks for the same number of hoursper week by the same employer."

Claimant argues that the Commission misinterpreted thelanguage of the statute with regard to partial weeks worked andignored the clear meaning of the phrase "parts thereof." See 820ILCS 305/10 (West 1996). He also argues that credence must begiven to "the number of weeks and parts thereof remaining afterthe time so lost has been deducted" (820 ILCS 305/10 (West1998)).

Illinois-Iowa Blacktop, Inc. v. Industrial Comm'n, 180Ill. App. 3d 885, 536 N.E.2d 1008 (1989)), reviewed the legislative history of section 10 of the Act. Four other cases havealso addressed the issue in the context within which we aredealing.

In Peoria Roofing & Sheet Metal Co. v. IndustrialComm'n, 181 Ill. App. 3d 616, 537 N.E.2d 381 (1989), the claimantwas a roofer whose work schedule was significantly affected bythe weather. In the previous 52 weeks, claimant worked a totalof 134 days in 43 calendar weeks (averaging slightly more than 3days per week). The Commission determined the average weeklywage by dividing claimant's total earnings for the previous 52weeks by one-fifth the number of calendar days that claimantworked that year. The circuit court reversed, and on appeal, theemployer argued that section 10 did not provide for "'fictionalweeks' (i.e., consolidated five-day groups of days worked), andthat the language of section 10 should not be mechanically usedto reach that result." Peoria Roofing, 181 Ill. App. 3d at 619,537 N.E.2d at 383. We reversed the circuit court and reinstatedthe Commission's determination, stating:

"The [employer's] interpretation of theemphasized section 10 language strain[ed] theplain meaning of the phrase 'and partsthereof.' It effectively equates allcalendar weeks during which [claimant] didany work, regardless of how many days heworked during the week. Whereas one day is,in fact, only a fraction of a work week, the[employer] would seek to have one isolatedday 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 superfluousexcept for employees who 'lost' full calendarweeks of employment. Under the [employer's]analysis, any employee who 'lost 5 or morecalendar days,' but nonetheless worked inevery calendar week, would have his averagewage calculated based on a 52-week year, justas under the initial provision of section10." Peoria Roofing, 181 Ill. App. 3d at620, 537 N.E.2d at 383-84.

Three years later, in Cook v. Industrial Comm'n, 231Ill. App. 3d 729, 596 N.E.2d 746 (1992), we addressed this issueagain. In Cook, claimant worked at least 1 day per week in 24 ofthe 52 weeks prior to his injury. During that period, claimantworked only 3 full, 40-hour weeks. The majority of weeksclaimant worked less than 5 full days and less than 40 hours perweek. The Commission divided claimant's total earnings for theprevious 52-week period by 24, the number of weeks in whichclaimant actually worked. On appeal we found that claimantfailed to provide the Commission with any "other documentaryevidence [or] *** sworn testimony" relating to claimant's wagesand noted the deferential standard accorded to the Commission'sfactual determination of average weekly wage. Cook, 231 Ill.App. 3d at 731, 596 N.E.2d at 747-48. We concluded that "[t]heonly recourse to the Commission, based strictly upon the evidencebefore it, was to divide claimant's total wages by the number ofweeks claimant worked, as reflected in the evidence." Cook, 231Ill. App. 3d at 731-32, 596 N.E.2d at 748.

In Ricketts v. Industrial Comm'n, 251 Ill. App. 3d 809,623 N.E.2d 847 (1993), the Commission determined that claimantworked for four days over a three-week period. The Commissionmultiplied claimant's hourly wage of $14.85 by 32 hours, equalingtotal wages of $475.20, which it then divided by 3, to arrive atan average weekly wage of $158.40. On review, the circuit courtreversed and found an average weekly wage of $594. We reversedthe circuit court and reinstated the Commission's determination,again noting that claimant had the burden of establishing hisweekly average earnings, that "[t]he evidence presented byclaimant was less than clear or comprehensive," and "[c]laimant'stestimony concerning his prior employment was, to say the least,equivocal and unsubstantiated." Ricketts, 251 Ill. App. 3d at810, 623 N.E.2d at 848.

We also expressed concern as to improper windfall andrejected claimant's argument that the Commission misinterpretedthe phrase "number of weeks or parts thereof" as contained insection 10, stating:

"If this were true then the determination ofthe average weekly rate would, in virtuallyevery case, be literally based upon thenumber of hours a less-than-'full-time'employee worked multiplied upward to fill outa complete 40-hour week--even if the employeenever worked a 40-hour week during his entirelife. Moreover, if the legislature intendedsuch a result, there would be no needwhatsoever for the alternative methods ofcalculating the wage provided by section 10of the Act.

Under the evidence presented in thiscase, the Commission's determination isconsistent with the statute. When theemployment is noncontinuous or less than'full-time,' earnings may be divided by anentire workweek even if the employee workedonly a portion of the week." Ricketts, 251Ill. 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 testifiedthat he worked a 40-hour workweek when the weather permitted andwhen work was available. However, long periods of time typicallypassed when he could not work. The Commission divided 204(representing the total number of days claimant worked) by 5(representing a full workweek) to reach 40.8 (representing thenumber of full workweeks). The Commission then divided$23,496.88 (representing claimant's total earnings over theprevious 52 weeks) by 40.8, to arrive at an average weekly wageof $575.90. This figure yielded a compensation rate of $383.93in weekly TTD benefits.

On appeal to this court, the employer argued that theCommission's calculation was erroneous and that $383.93 per weekrepresented a windfall for claimant because $575.90 per week over52 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. Wefound that the Commission had sufficient evidence before it tocompute claimant's earnings and that it properly "divided by the'number of weeks and parts thereof remaining after the time solost ha[d] been deducted.'" D.J. Masonry, 295 Ill. App. 3d at933, 693 N.E.2d at 1207, quoting 820 ILCS 305/10 (West 1994). Wefurther noted that the Commission's calculation comported withsection 10 and was therefore not against the manifest weight ofthe evidence. D.J. Masonry, 295 Ill. App. 3d at 933, 693 N.E.2dat 1207. With regard to the issue of windfall, we found that theemployer's figure of $29,946.80 was misleading insofar asclaimant would not receive that amount. Rather, since claimantwould receive TTD benefits of $383.93, his total benefits over 52weeks would total $19,964.36. The Commission's award reasonablyrepresented claimant's earning potential. D.J. Masonry, 295 Ill.App. 3d at 934, 693 N.E.2d at 1208.

We conclude that these cases, for the most part, arereconcilable. In each case, we conducted fact-specific inquiriesand addressed whether the Commission's factual determination ofclaimant's average income was against the manifest weight of theevidence. Our central inquiry in all four of these cases waswhether the Commission's calculation adequately and reasonablyrepresented claimant's earning potential without awarding him orher a substantial windfall. See D.J. Masonry, 295 Ill. App. 3dat 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'sprevious wages to determine whether it fairly representsclaimant's earning power at the time of his injury). In eachcase, we found that the record evidence supported theCommission's factual determination, and we affirmed or reinstatedits decision.

As previously stated, the purpose of section 10 is to"compensate, or 'make whole,' an injured employee[] [and] not toprovide a windfall. To hold otherwise would create a situationin which it is more advantageous, financially, to be injured thanto be employed." Hasler v. Industrial Comm'n, 97 Ill. 2d 46, 52,454 N.E.2d 307, 310 (1983).

Section 10 provides the procedures to follow indetermining average weekly wage and sets forth four options inmaking that determination based upon the facts presented.

The first method is to determine "the actual earningsof the employee in the employment in which he was working at thetime of the injury during the period of 52 weeks ending with thelast day of the employee's last full pay period immediately preceding the date of injury, illness or disablement excludingovertime, and bonus divided by 52." 820 ILCS 305/10 (West 1998). This method does not apply as the parties agree that claimantworked in only 48 weeks of the previous 52 weeks.

The second method concerns the employee who has "lost 5or more calendar days during such period [(52 weeks prior toinjury)], whether or not in the same week, then the earnings forthe remainder of such 52 weeks shall be divided by the number ofweeks and parts thereof remaining after the time so lost has beendeducted." 820 ILCS 305/10 (West 1998). We defined "time lost"in Illinois-Iowa, "to the extent not due to the fault of theemployee." Illinois-Iowa, 180 Ill. App. 3d at 891, 536 N.E.2d at1013.

The third method provides that "[w]here the employmentprior to the injury extended over a period of less than 52 weeks,the method of dividing the earnings during that period by thenumber of weeks and parts thereof during which the employeeactually earned wages shall be followed." 820 ILCS 305/10 (West1998).

The fourth method set forth in section 10 provides:

"Where by reason of the shortness of the timeduring which the employee has been in theemployment of his employer or of the casualnature or terms of the employment, it isimpractical to compute the average weeklywages as above defined, regard shall be hadto the average weekly amount which during the52 weeks previous to the injury, *** wasbeing or would have been earned by a personin the same grade employed at the same workfor each of such 52 weeks for the same numberof hours per week by the same employer." 820ILCS 305/10 (West 1998).

The average weekly wage of the claimant in this case isto be determined pursuant to the second method. We note firstthat the parties agree that claimant did not work 4 of the 52weeks preceding the date of injury. The payroll records suggestthe four weeks not worked were weeks ending November 10, 1991;February 21, 1992; February 28, 1992; and March 14, 1992. Therespondent employer agrees that this is properly considered timelost and properly deducted.

In this case, the only evidence presented concerningaverage weekly wage was the testimony of the claimant, thepayroll ledger statements with respect to claimant, the unioncontract, and W-2 statements.

In Illinois-Iowa, we stated that the primary factor inHasler was the finding that the "on call" employee was not anintermittent employee but was "continuously employed." Illinois-Iowa, 180 Ill. App. 3d at 891, 536 N.E.2d at 1012. Section 10was amended subsequent to Hasler to include additional factors indetermining the average weekly wage. We further stated inIllinois-Iowa that section 10 "states that in all cases where theemployee lost five or more days of work during the 52 weeks priorto the injury, the lost time (to the extent not due to the faultof the employee) should be deducted from the wage calculationdenominator." Illinois-Iowa, 180 Ill. App. 3d at 891, 536 N.E.2dat 1013.

The other weekly wage cases referred to herein were allfact specific. In Cook and Ricketts, we pointed out the failureor inadequacy of proof presented by the claimant as to hisearnings and work schedule. In Peoria Roofing and D.J. Masonry,the evidence suggests that the second method of section 10 wasfollowed.

The proof presented here follows the second method,that the claimant lost 5 or more days in the 52-week period. Theevidence is clear that the time lost was not due to the fault ofthe employee. As stated above, the claimant worked only forrespondent as a roofing foreman. He was on call to work at alltimes by respondent, never refused to work when called, had noother employment, and was not self-employed.

With respect to windfall, our decision does provideclaimant with an income that is somewhat higher than he realizedprior to his injury, but such an increase does not automaticallyput claimant in a situation more advantageous than the one priorto his injury, nor does it provide claimant with a substantialwindfall as envisioned in Hasler and its progeny. In Hasler,claimant utilized a calculation method compensing him atapproximately six times his preinjury annual income. Hasler, 97Ill. 2d at 52, 454 N.E.2d at 310. In Cardiff v. IndustrialComm'n, 128 Ill. App. 3d 52, 55, 470 N.E.2d 1091, 1093 (1984),this court rejected an award nearly 10 times claimant's preinjurywage. Similarly, in Cook, we contemplated a situation whereinclaimant could seek an average weekly wage five times his or herpreinjury income. Cook, 231 Ill. App. 3d at 733, 596 N.E.2d at749. As previously stated, a claimant's average weekly wagerequires a fact-driven analysis. The decision of the Commissionwas against the manifest weight of the evidence.

For the foregoing reasons, we reverse the circuit courtand remand this matter to the Commission for proceedingsconsistent with this opinion.

Reversed and remanded.

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