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NO. 4-01-0876WC

IN THE

APPELLATE COURT OF ILLINOIS

FOURTH DISTRICT

Industrial Commission Division

JUSTICE RARICK delivered the opinion of the court:

Claimant, Christopher Flanagan, sought benefits pursuant to the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)) for injuries sustained whilein the employ of Mason Manufacturing, Inc. (Mason). Flanagan injured his left knee whenhe fell from a ladder. Flanagan's primary employment was with the Norfolk and Southernrailroad. Mason was a secondary job at which Flanagan worked occasionally. Mason wasaware of Flanagan's employment with the railroad and that such job was his primaryemployment. Flanagan had worked for Mason four or five times during the previous fiveyears. He would work several days to several weeks. His current session of employmentwas in its fourth day when the accident occurred. Prior to the current session, Flanagan hadnot worked for Mason for several years.

As a result of his injuries, the arbitrator determined that Flanagan could notreturn to his former employment either at the railroad or at Mason. Pursuant to section 10of the Act, the arbitrator determined Flanagan's average weekly wage by adding the $420Flanagan 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 arbitratordivided this sum by 52 to reach an average weekly wage of $689.20. The arbitrator alsoordered Mason to pay weekly maintenance benefits in the amount of $459.47 until Flanagancompleted 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 therailroad by 52, giving an average weekly wage of $681.12. It then divided the $420Flanagan earned for one week's work at Mason by one, to determine an average weekly wasof $420. The Commission then added these two figures to derive a total average weeklywage of $1,101.12.

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

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

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 ofthe 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 immediatelypreceding the date of injury, illness or disablement excludingovertime, and bonus divided by 52; ***. Where theemployment prior to the injury extended over a period of lessthan 52 weeks, the method of dividing the earnings during thatperiod by the number of weeks and parts thereof during whichthe employee actually earned wages shall be followed. Whereby reason of the shortness of the time during which theemployee has been in the employment of his employer or of thecasual nature or terms of the employment, it is impractical tocompute the average weekly wages as above defined, regardshall be had to the average weekly amount which during the 52weeks previous to the injury, illness or disablement was beingor would have been earned by a person in the same gradeemployed at the same work for each of such 52 weeks for thesame number of hours per week by the same employer. ***When the employee is working concurrently with two or moreemployers and the respondent employer has knowledge of suchemployment prior to the injury, his wages from all suchemployers shall be considered as if earned from the employerliable for compensation. 820 ILCS 305/10 (West 1998).

In Sylvester v. Industrial Comm'n, 197 Ill. 2d 225, 756 N.E.2d 822 (2001), oursupreme court noted that section 10 provides four methods of calculating average weeklywage: (1) by default, average weekly wage is "actual earnings" during the 52-week periodpreceding the date of injury, illness or disablement, divided by 52; (2) if the employee lostfive 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 partsthereof remaining after the time so lost has been deducted;" (3) if the employee'semployment began during the 52-week period, the earnings during employment are dividedby "the number of weeks and parts thereof during which the employee actually earnedwages;" and (4) if the employment has been of such short duration or the terms of theemployment of such casual nature that it is "impractical" to use one of the other threemethods to calculate average weekly wage "regard shall be had to the average weeklyamount" which during the 52 weeks previous to the injury, illness or disablement was beingor would have been earned by a person in the same grade employed at the same work foreach 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 onVillage 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 asecond job as a limousine driver for Lois Limo. The parties stipulated that the claimant'saverage weekly wage from his employment with the Village was $540.90. The claimant hadalso earned $1,662.64 in nine weeks working for Lois Limo. The Commission determinedthe claimant's average weekly wage with Lois Limo to be $184.74. The Commission arrivedat this figure by dividing the $1,662.64 he had earned with Lois Limo by nine, the numberof weeks he had worked there. The Commission then added $184.74 to $540.90 to arriveat an average weekly wage of $725.64.

On appeal, the Village argued that the Commission should have added the$1,662.64 claimant had made at Lois Limo to the $28,126.80 that he had made working forthe village during the previous 52 weeks of employment, and divided that total by 52 weeksfor an average weekly was of $572.97. Noting that such a calculation would result in asecond job average weekly wage of $31.97, we rejected the Village's argument, finding thatthis figure did not fairly represent the claimant's earning power at the time of his injury..

Village of Winnetka clearly supports the Commission's rejection of the methodthe arbitrator used in determining Flanagan's average weekly wage. As the Commissionnoted, the method of determining Flanagan's average weekly wage used by the arbitrator andadvocated by Mason would result in am absurdly low second job average of only $8.08 perweek. Such a figure bears no relation to Flanagan's earning power at the time of his injury. Nevertheless, Mason continues to advocate the method used by the arbitrator, arguing thatVillage of Winnetka is inapposite. Mason contends that unlike the present case, there is noindication in Village of Winnetka that the claimant's second employment was sporadic or notof an ongoing nature. Mason maintains that while the Commission in Village of Winnetkaapparently used the third method in determining the claimant's average weekly wage, thefirst method is appropriate for the present case because there is a full record of Flanagan'searnings with Mason for the 52 weeks preceding his injury.

Mason's arguments are not persuasive. The first method of calculating averageweekly wage set forth in section 10 is inappropriate because Flanagan had not worked forMason for a full year. The first method set forth in section 10 determines average weeklywage as "the actual earnings of the employee in the employment in which he was workingat the time of the injury during the period of 52 weeks *** divided by 52. 820 ILCS 305/10(West 1998). The employment in which Flanagan was working at the time of his injury waswith Mason. Mason's position is in conflict with the language of the statute. Even ifMason's position could be reconciled with the language of the statute, we believe that incases of concurrent employment, the better practice is to determine the average weekly wageof each job separately, by the method appropriate to that job, then add the averages togetherto determine the average weekly wage.

The issue then becomes which method should be utilized in determiningFlanagan's average weekly wage for his employment with Mason. The first and secondmethods are not appropriate because Flanagan had not worked for Mason for a full yearwhen the accident happened. Under the third method, where the employee's earnings aredivided by the number of weeks and parts thereof during which the employee actuallyearned wages, the $420 Flanagan earned would be divided by one, the number of weeks hehad worked, resulting in an average weekly wage of $420 for his employment with Mason. This is the result reached by the Commission. The same result is obtained by using thefourth method, where "regard shall be had to the average weekly amount which during the52 weeks previous to the injury *** was being earned by a person in the same gradeemployed at the same work for each of such 52 weeks for the same number of hours perweek ***."

Mason relies on Ricketts v. Industrial Comm'n, 251 Ill. App. 3d 809, 623N.E.2d 847 (1993), arguing that, consistent with the reasoning in Ricketts, it was appropriatefor the arbitrator to divide Flanagan's total earnings by 52 weeks based upon the languageof the first method of calculation outlined in Section 10 and the evidence regarding thelimited nature of Flanagan's secondary employment with Mason. In Ricketts, the claimantwas injured after working a total of four days over a three-week period. The Commissiondetermined the claimant's average weekly wage by inferring that he had worked eight hourseach of the four days he was employed, which it then multiplied by his union scale wage anddivided by three to arrive at an average weekly wage of $158.40. The circuit court reversed,and calculated the claimant's average weekly wage at $594 by multiplying the claimant'shourly wage by eight hours a day for five days. This court reinstated the decision of theCommission. After noting that the Commission calculated the wage rate by the secondmethod listed in section 10, we held that the Commission's determination comported withthe statutory formula.

Ricketts does not support Mason's position. In Ricketts, the Commissiondivided the claimant's earnings by the number of weeks that he had worked. Applying thesame method of calculation to the present case would yield a second job average of $720.

Arguably, the Commission's decision results in a substantial windfall toFlanagan, a result we criticized in Cook v. Industrial Comm'n, 231 Ill. App. 3d 729, 596N.E.2d 746 (1992). In Cook, which did not involve concurrent employment, the claimanthad worked during 24 different weeks during the preceding year and had earned $10,266.42. There is no indication in the record regarding how many days he worked during those weeksor how many hours per day he worked. The arbitrator divided $10,226.42 by 24 for anaverage weekly wage of $427.77. The Commission affirmed the arbitrator's decision, andthe decision of the Commission was confirmed by the circuit court. On appeal, the claimantargued that his actual hours worked should have been divided by 40 and this amountmultiplied by his hourly wage, which would result in an average weekly wage of $621.20. We rejected the claimant's argument, finding that such an interpretation of section 10 wouldresult in a windfall to the claimant and he would receive substantially more per week thanhe actually earned while employed.

Determination of an employee's average weekly wage is often problematicbecause, as we noted in Village of Winnetka, the methods of determining the average weeklywage set forth in section 10 are somewhat ambiguous and often are not readily applicableto the facts of the case at hand. Creating a more workable framework for determiningaverage weekly wage is the province of the legislature, however, not the courts. All thecourts can do is interpret the statute and apply it to the facts at hand so as to best achieve theresults our legislature intended.

For the foregoing reasons, the judgment of the circuit court of Macon Countyis affirmed.

Affirmed.

HOFFMAN, and HOLDRIDGE, JJ., concurring.

PRESIDING JUSTICE McCULLOUGH, specially concurring; O'MALLEY,J., joins:

I agree with the majority in its position that the better practice to determineaverage weekly wage where there are two jobs is by looking at each job separately by themethod appropriate to that job and then add the two averages together to determine theaverage weekly wage. I also believe it is important to stress the finding of the majority thatcreating a more workable framework is the province of the legislature and not for the courts.

I write this special concurrence to point out that the Commission did, in itswisdom, have substantial evidence presented with respect to the claimant's employmenthistory. The Commission found that the evidence regarding the claimant's employmenthistory was uncontradicted and that he had worked since he was 16 years old, consistentlyworking more than one job at a time and more specifically in the five years preceding theaccident he continued to consistently work at two or more jobs, concurrently working 95 to100 hours per week. The claimant's testimony along with that of Wesley Mason andrehabilitation counselors, John Stephen Dolan and Sherry Anderson, the Commission foundthat the claimant worked continuously full time for the respondent from 1989 to 1992 whenhe obtained full employment with Norfolk and Southern Railroad where he has workedcontinuously since that time. The Commission also found that while he was working forrespondent from 1989 to 1992 and prior to his going to work for the railroad, he also workedfor a tree service and continued to work at that tree service at least intermittently since thebeginning of employment with the railroad up to the time of the accident herein. Theevidence further showed that at times from 1992 to 1998 he had concurrent employmentwith three employers, being the railroad, respondent and Romer's. There was also evidencethat he worked for another lawn service, Walker's Lawn Service, earning $7 per hour andhad begun that work in May 1998.

Determining which formula in section 10 as to average weekly wage shouldbe used is difficult in many cases. We should defer to the Commission in theirdetermination of the weekly average wage if we can find it consistent with the provisionsof section 10.