{ "id": 3515422, "name": "PHILLIP McCartney, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Stoller and Maurer, Appellee)", "name_abbreviation": "McCartney v. Industrial Commission", "decision_date": "1988-09-01", "docket_number": "No. 4\u201487\u20140665WC", "first_page": "213", "last_page": "216", "citations": [ { "type": "official", "cite": "174 Ill. App. 3d 213" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "170 Ill. App. 3d 626", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3585161 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "631" }, { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0626-01" ] }, { "cite": "454 N.E.2d 307", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "97 Ill. 2d 46", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515694 ], "opinion_index": 1, "case_paths": [ "/ill-2d/97/0046-01" ] } ], "analysis": { "cardinality": 401, "char_count": 7876, "ocr_confidence": 0.768, "pagerank": { "raw": 1.287583899326642e-07, "percentile": 0.619049218699623 }, "sha256": "ab5804eb34f3a2579a214df3ee81acaba784efdd13765303f67960d98fff8ce9", "simhash": "1:9587b8cd6071341a", "word_count": 1297 }, "last_updated": "2023-07-14T22:48:34.473456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PHILLIP McCartney, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Stoller and Maurer, Appellee)." ], "opinions": [ { "text": "JUSTICE CALVO\ndelivered the opinion of the court:\nClaimant, Phillip McCartney, filed an application for adjustment of claim under the Workers\u2019 Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.1 et seq.) alleging that his back injury arose out of and during the course of his employment with Stoller and Maurer. After a hearing, the arbitrator awarded claimant 26 weeks of temporary total disability benefits (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(b)(2)) and an 8% total disability under the \u201cman as a whole\u201d provision. (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(d)(2).) Claimant\u2019s average weekly wage was found to be $132.63. (Ill. Rev. Stat. 1983, ch. 48, par. 138.10.) The Industrial Commission affirmed the arbitrator\u2019s decision and the circuit court confirmed the Industrial Commission. Claimant appeals, alleging that the Industrial Commission\u2019s computation of his average weekly wage is erroneous. The facts are as follows.\nClaimant testified that prior to the injury he had been employed as a construction laborer for approximately 20 years; for several years preceding the injury he worked exclusively for the employer. During those 20 years, claimant could only recall one stretch of time when he worked 40 hours per week for a whole year. Otherwise, he was often laid off when the weather was not conducive to construction activities. Claimant related that he was most often employed in the summer and most often laid off in the winter. He testified he worked one day in December and was off in March and worked since March during the year of his injury prior to the arbitration hearing.\nThe parties stipulated that during the 12 months immediately prior to the injury claimant earned $6,896.95. This figure excludes overtime pay and was based upon 509 hours of work at a rate of $13.55 per hour. There is no record whatsoever of the number of continuous days or weeks claimant worked or the number of hours per week which constituted claimant\u2019s workweek during this 12-month period.\nOn these facts the arbitrator found claimant's average weekly wage to be $132.63 ($6,896.95 divided by 52). On review, the Industrial Commission affirmed the arbitrator, finding that \u201cno evidence was presented as to the weeks or parts thereof that [claimant] actually worked or the number of hours per week for which [claimant] was regularly employed.\u201d\nSection 10 of the Act provides in pertinent part:\n\u201cThe basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows:\nThe compensation shall be computed on the basis of the \u2018Average weekly wage\u2019 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\u2019s 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. 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.\u201d (Ill. Rev. Stat. 1983, ch. 48, par. 138.10.)\nThus, an employee\u2019s average weekly wage is determined on the basis of the employee\u2019s actual regular earnings divided by the number of weeks actually worked if the employee lost five or more calendar days of employment during the 52-week period immediately preceding the injury. (See Smith v. Industrial Comm\u2019n (1988), 170 Ill. App. 3d 626, 631.) Assuming compliance with section 10, the Industrial Commission\u2019s determination of a claimant\u2019s average weekly wage is an issue of fact which will not be set aside unless it is contrary to the manifest weight of the evidence. Smith v. Industrial Comm\u2019n (1988), 170 Ill. App. 3d 626, 631.\nAlthough claimant did not present detailed proof as to the number of weeks or parts thereof worked, or as to the number of hours which normally constituted his workweek during the past 12 months, claimant\u2019s undisputed testimony clearly indicates that he was often laid off from work for long periods of time and that such layoffs were common for those engaged in his occupation. Moreover, the stipulation of fact that claimant worked only 509 hours during the 12 months preceding the injury indicates that claimant was laid off a significant part of the year. We therefore conclude that the Industrial Commission\u2019s decision to divide claimant\u2019s earnings for the year by the number of weeks in a year to determine his average weekly wage is contrary to the manifest weight of the evidence.\nThe judgment of the circuit court confirming the Industrial Commission\u2019s determination of claimant\u2019s average weekly wage is reversed, and the cause is remanded to the Industrial Commission for a proper determination of compensation due claimant consistent with the views expressed herein.\nReversed and reminded.\nBARRY, P.J., and WOODWARD, J., concur.", "type": "majority", "author": "JUSTICE CALVO" }, { "text": "JUSTICE McCULLOUGH,\ndissenting:\nThe decision of the Industrial Commission was not against the manifest weight of the evidence and its decision which was affirmed by the trial court should be affirmed by this court.\nThe petitioner appealed the decision of the arbitrator to the Industrial Commission, a principal issue being the arbitrator\u2019s determi- \u25a0 nation of the average weekly wage. The Commission\u2019s decision in its findings states:\n\u201cWith respect to Petitioner\u2019s average weekly wage the Commission notes that no evidence was presented as to the weeks and parts thereof that Petitioner actually worked or the number of hours per week for which he was to be regularly employed. Respondent was Petitioner\u2019s only employer in the year preceding the accident. Petitioner was employed by Respondent for 52 weeks preceding the accident and his earnings in those 52 weeks were stipulated to by the parties.\u201d\nAs stated in the petitioner\u2019s brief, the parties stipulated that the petitioner worked the entire 12 months before the accident for the defendant and excluding overtime earned $6,896.95. In line with Hasler v. Industrial Comm\u2019n (1983), 97 Ill. 2d 46, 454 N.E.2d 307, where the \u201cclaimant was not engaged in two occupations\u201d and the \u201cannual wages were clearly determined,\u201d the decision of the commission and the trial court should be affirmed.\nThe decision of the Industrial Commission was made upon the evidence presented. That this court should state that the petitioner should now get another chance to prove his petition will only produce countless appeals citing this decision as authority to present the merits of the petition anew.\nMcNAMARA, J., joins in this dissent.", "type": "dissent", "author": "JUSTICE McCULLOUGH," } ], "attorneys": [ "Jean A. Swee, of Jerome Mirza & Associates, Ltd., of Bloomington, for appellant.", "Costigan & Wollrab, P.C., of Bloomington (Guy C. Fraker, of counsel), for appellee." ], "corrections": "", "head_matter": "PHILLIP McCartney, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Stoller and Maurer, Appellee).\nFourth District (Industrial Commission Division)\nNo. 4\u201487\u20140665WC\nOpinion filed September 1, 1988.\nMcCULLOUGH and McNAMARA, JJ., dissenting.\nJean A. Swee, of Jerome Mirza & Associates, Ltd., of Bloomington, for appellant.\nCostigan & Wollrab, P.C., of Bloomington (Guy C. Fraker, of counsel), for appellee." }, "file_name": "0213-01", "first_page_order": 235, "last_page_order": 238 }