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Docket No. 96884-Agenda 9-March 2004.

LARRY FLYNN, Appellant, v. THE INDUSTRIAL COMMISSION
et al. (Utica Township, Appellee).

Opinion filed June 17, 2004.
 

JUSTICE FREEMAN delivered the opinion of the court:

The sole issue in this case is the amount an employer is obligated tocompensate an injured employee under the Workers' Compensation Act(820 ILCS 305/1 et seq. (West 1996)). The resolution of this questionrequires this court to construe the phrase "working concurrently with twoor more employers" in the context of workers in seasonal industries.

BACKGROUND

The pertinent facts are undisputed. Larry Flynn (claimant) droveasphalt trucks for the sibling companies LaSalle County Asphalt, UniversalAsphalt, and Advanced Asphalt Company from 1979 through 1996. Hewas a member of the Teamsters union during that time, and hisemployment was controlled by the union contract. Because of theweather-dependent nature of the asphalt business, claimant's employmentgenerally began in early spring-March or April-and continued throughNovember or December. During the winter "off-season," claimantgenerally signed the "referral list" or "call list" maintained by his union andwas also "on call" with the asphalt companies. Claimant testified that hewas sometimes called back to work by the asphalt companies during theoff-season, after he had finished work for the year and before he beganthe next year.

Claimant never applied for unemployment compensation during theoff-season. Rather, he worked and lived on a farm which he rented fromhis mother. He also sometimes worked at other employment when it wasavailable. It was during the course of one such temporary employmentopportunity that he received the injury underlying the instant litigation.

On January 16, 1997, Utica Township rented claimant's large snowblower and hired claimant to run it. Jerry Cary, the Township employeewho hired claimant, testified that he knew when he hired him that claimantworked for the asphalt companies during the warmer times of the year.The Township and claimant agreed that the Township would pay claimant$67 per hour for the rental, and $8 per hour in wages. Claimant clearedsnow for the Township on January 16 and 17, but while working on thelatter date, after he had worked a total of seven hours clearing snow, thesnow blower shaft sheared. Claimant attempted to repair the blower, butwhile he was using a chisel to remove the sheared bolt, the chisel jumpedand hit claimant's left eye. Despite two surgeries, claimant's eye waseventually completely removed because of a detached retina and repeatedintra-ocular hemorrhages.

Claimant returned to his work as an asphalt driver in 1997, but theIllinois Department of Transportation refused to renew his license in 1998,due to his vision impairment. Consequently, claimant had to seek otheremployment. He found work as an armed guard at an off-track bettingfacility. At the time of the hearing, he was earning $9 per hour. If claimanthad been able to work as an asphalt driver his wages would have been$22.59 per hour.

Claimant initiated this proceeding pursuant to the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)) by filingan application for adjudication of claim with the Industrial Commission inMay 1998. The arbitrator concluded that claimant's average weekly wage(AWW) as an armed guard was $360, and that his AWW as a snowblower was $56, but that his AWW "for the permanent occupation inwhich he was engaged at the time of the accident which permanentoccupation was his usual and customary line of employment was $903.60[$22.59 x 40]." The arbitrator found that the weekly difference betweenwhat claimant was actually earning and what he could have earned if notfor his accident was $556.40 ($903.60 - $360), and ruled that pursuantto section 8(d)(1) of the Act, claimant was entitled to two-thirds of thatdifferential, or $362.36 per week. See 820 ILCS 305/8(d)(1) (West1996).

The Industrial Commission rejected the arbitrator's ruling, in adecision with no majority opinion. Writing for the Commission,Commissioner Smart concluded that claimant was an employee of theTownship, and thus was entitled to benefits under the Act for his injury.However, claimant was not employed "concurrently" by the Township andthe asphalt companies. Accordingly, what claimant earned from theasphalt companies was irrelevant, and claimant's AWW was $56 perweek. Because this was less than he was earning in his employment as asecurity guard, claimant was not entitled to any wage differential. Instead,the Commission ruled that claimant was entitled only to 160 weeks ofcompensation at the AWW of $56 per week, according to the Act'sscheduled compensation for the total loss of an eye. See 820 ILCS305/8(e)(13) (West 1996).

Commissioners Stevenson and Sherman dissented. CommissionerStevenson believed that claimant was not entitled to any compensation,because claimant was an independent contractor, rather than an employee.However, he agreed with Commissioner Smart that if claimant wereentitled to compensation, his compensation should be based on an AWWof $56 per week, because claimant's snow blowing and asphalt truckdriving employments were "serial," not concurrent. CommissionerSherman agreed with Commissioner Smart that claimant was entitled torelief, but would have upheld the arbitrator's determination that claimantwas concurrently employed by the Township and the asphalt companiesand was thus entitled to wage differential based on the AWW that thearbitrator calculated.

The circuit court of La Salle County and the Industrial Commissiondivision of the appellate court affirmed the Commission in all respects. Adivided appellate court explicitly deferred to the Commission's conclusionon the issue of whether claimant was concurrently employed, reasoningthat

"The parties to this appeal do not argue that the statute isambiguous or dispute the ordinary meaning of 'concurrently.'Instead, they disagree whether claimant falls within the statuteunder the facts of this case. This issue does not involve statutoryconstruction, and the manifest weight of the evidence standard isapplied." 339 Ill. App. 3d 994, 999.

The majority held that the Commission's determination that claimant wasnot concurrently employed was not against the manifest weight of theevidence, stating that his "earnings from [the Township] were a substitutefor, not a supplement of, his earnings as an asphalt truck driver." 339 Ill.App. 3d at 1000. The appellate majority rejected claimant's argument thathis "occupation" for purposes of a wage differential award under section8(d)(1) of the Act was his "usual and customary line of employment" asan asphalt truck driver. The appellate court noted that the statutespecifically referred to the occupation "in which he is employed at the timeof the accident." The majority reasoned that by the use of this modifyinglanguage, the legislature had barred consideration of an employee'searning potential in any occupation except the "job he was performingwhen injured." 339 Ill. App. 3d at 1001.

Justices Goldenhersh and Holdridge dissented, arguing that themajority and the Commission failed to take into account the "recurrentsequence of claimant's employment." 339 Ill. App. 3d at 1002(Goldenhersh, J., dissenting, joined by Holdridge, J.). The dissent wouldhave held that claimant was concurrently employed as a snow blower andan asphalt truck driver, given the long and steady history of periodictemporary seasonal layoffs.

Claimant petitioned this court for leave to appeal (177 Ill. 2d R.315(a)), which we granted.

ANALYSIS

The parties differ on the standard of review and the correctness ofthe Industrial Commission's ruling. Claimant argues that the decision of theCommission should be reviewed de novo and set aside, while Uticaargues that the Commission's decision should be confirmed because it wasnot against the manifest weight of the evidence.

First, we consider the standard of review. Claimant argues that theappellate court erred in deferring to the Commission because the onlyquestion was the application of the law to undisputed facts, a situation inwhich he contends review should be de novo. Utica disagrees, arguingthat the appellate court was correct in deferring to the Commission ratherthan engaging in independent review. We agree with claimant.

The parties agree that the relevant facts here are undisputed. It is truethat, as the appellate court noted, deference to the Commission issometimes appropriate even when the facts are undisputed. See, e.g.,Orsini v. Industrial Comm'n, 117 Ill. 2d 38, 44 (1987); Eagle DiscountSupermarket v. Industrial Comm'n, 82 Ill. 2d 331, 337 (1980). But thisis so only when the Commission must draw inferences from theundisputed facts in order to render its decision. Certainly, reviewing courtsmust defer to the fact finder's reasonable factual inferences, even when thefacts are undisputed. But in this case there is no indication that theCommission drew any inferences, or indeed did anything other than applythe law to the undisputed facts. There is no question of inference orweight. In this situation review is de novo.

Accordingly, we turn to the underlying question: What are aclaimant's relevant earnings in determining his compensation for an injuryon the facts of this case, i.e., a seasonal employee injured duringtemporary off-season work? The circuit court, and the majority of theCommission and the appellate court, concluded that only the wages aseasonal employee earns in that part-time off-season employment shouldbe taken into account. The arbitrator, and the dissenters in theCommission and the appellate court, would have concluded that theemployee's earnings from his main line of work should also be considered.

We turn first to the language of the relevant statutes. The twoprovisions directly at issue are sections 8(d)(1) and 10 of the Act. Section8 of the Act governs the "amount of compensation which shall be paid tothe employee for an accidental injury not resulting in death." Section8(d)(1) provides:

"If, after the accidental injury has been sustained, theemployee as a result thereof becomes partially incapacitatedfrom pursuing his usual and customary line of employment, heshall, except in cases compensated under the specific scheduleset forth in paragraph (e) of this Section, receive compensationfor the duration of his disability, subject to the limitations as tomaximum amounts fixed in paragraph (b) of this Section, equalto 66-2/3% of the difference between the average amount whichhe would be able to earn in the full performance of his duties inthe occupation in which he was engaged at the time of theaccident and the average amount which he is earning or is ableto earn in some suitable employment or business after theaccident." 820 ILCS 305/8(d)(1) (West 1996).

Section 10 of the Act defines an employee's average weekly wage(AWW) as:

"the actual earnings of the employee in the employment inwhich he was working at the time of the injury during the periodof 52 weeks ending with the last day of the employee's last fullpay period immediately preceding the date of injury, illness ordisablement excluding overtime, and bonus divided by 52 ***.*** When the employee is working concurrently with two ormore employers and the respondent employer has knowledge ofsuch employment 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 1996).⁽¹⁾

The standards which guide our interpretation of the statutoryprovisions are well established. The overarching aim for a court is toascertain and give effect to the overall intent of the drafters. Villegas v.Board of Fire & Police Commissioners, 167 Ill. 2d 108, 123 (1995).We presume that the legislature intends that two or more statutes whichrelate to the same subject are to be read harmoniously, so that noprovisions are rendered inoperative. Henrich v. Libertyville HighSchool, 186 Ill. 2d 381, 391-92 (1998). Statutes relating to the samesubject must be compared and construed with reference to each other sothat effect may be given to all of the provisions to the extent possible, evenwhere an apparent conflict exists. Knolls Condominium Ass'n v. Harms,202 Ill. 2d 450, 459 (2002); Sylvester v. Industrial Comm'n, 197 Ill.2d 225, 232 (2001). Specific statutory language takes precedence overmore general language relating to the same topic. Knolls CondominiumAss'n, 202 Ill. 2d at 459; Shelton v. Industrial Comm'n, 267 Ill. App.3d 211, 217 (1994); Bray v. Industrial Comm'n, 161 Ill. App. 3d 87,92 (1987). See also Sylvester, 197 Ill. 2d at 232.

Application of the above rules of construction leads us to disagreewith the appellate court's conclusion (see 339 Ill. App. 3d at 1001) thatonly the AWW earned from the employer for whom the claimant wasworking at the time of the accident may be considered in the wagedifferential award. Although a reasonable reading of section 8(d)(1) inisolation, this construction renders section 8(d)(1) inconsistent with section10 of the Act in the context of concurrent employment. Section 10explicitly provides that when an employee is working for two or moreemployers concurrently, with the knowledge of the employer in whoseemploy the claimant was injured, "wages from all such employers shall beconsidered as if earned from the employer liable for compensation."(Emphasis added.) 820 ILCS 305/10 (West 1996). Thus if the appellatecourt were correct, section 8(d)(1) would prohibit exactly what section 10requires-consideration of wages earned from all employers, not just theemployer for whom the claimant was working when the injury occurred.Moreover, it is also unclear why the wage differential should be basedsolely on the AWW earned from the employer for whom the claimant wasworking at the instant of the injury, when the test for wage differential isnot whether the employee has been incapacitated from that employment,necessarily, but whether the employee has been incapacitated from his"usual and customary line of employment."

Because a facial reading of the statutes brings them into conflict, wemust look beyond the plain language. Two other principles becomerelevant. First, the rule that the more specific statute controls over themore general-because section 10 is the only one of the two statutes whichspecifically addresses concurrent employment, it is the more specific of thetwo statutes in that situation. Second, the Workers' Compensation Act isa remedial statute intended to provide financial protection for injuredworkers, and it is to be liberally construed to accomplish that objective.Peoria County Belwood Nursing Home v. Industrial Comm'n, 115 Ill.2d 524, 529 (1987); Pathfinder Co. v. Industrial Comm'n, 62 Ill. 2d556, 563 (1976); Jacobs v. Industrial Comm'n, 269 Ill. App. 3d 444,447 (1995). This rule also leads us to conclude that when a worker isconcurrently employed, all of his earnings must be considered whencalculating a wage differential under section 8(d)(1).

This conclusion accords with our appellate court, which hasrecognized that a claimant may be "concurrently" employed by twoemployers even during a temporary layoff from one of his jobs. SeeJacobs, 269 Ill. App. 3d 444. There, the claimant was primarily employedas a sheet-metal worker. He was injured while clearing snow in a part-time job. At the time of the accident he had been laid off from his job asa sheet-metal worker for two or three weeks, but he testified that suchtemporary layoffs were not unusual in that line of work, and he was at alltimes subject to recall. The court concluded that the claimant's AWW asa sheet-metal worker should be taken into account in calculating hisrecovery under the Act, because his "employment relationship as a unionsheet-metal worker was not severed during his layoff period or at the timeof the accident." Jacobs, 269 Ill. App. 3d at 447. In so holding, the courtnoted the following facts:

"(1) claimant was employed as a sheet metal worker for mostof the 52 weeks prior to his injury except for two short layoffperiods that are common in the industry, (2) his part-time job atVillage Apartments was a supplement to his regular work andprimary source of income as a sheet metal worker, (3) VillageApartments was aware of claimant's concurrent employment asa sheet metal worker, and (4) claimant was readily available andsubject to recall for work as a sheet metal worker even thoughat the time of his injury he had been temporarily laid off for twoor three weeks." Jacobs, 269 Ill. App. 3d at 448.

Jacobs is quite similar to the instant case. There, as here, the claimant wasnot in fact in the employ of both employers at the time of the accident.Rather, each claimant was performing part-time work during a period oflayoff from his main occupation, during which he remained available andsubject to recall for work if it became available. Such periods of layoffwere common in the claimants' industries. In each case the part-timeemployer was aware of the claimant's main line of work. And in eachcase, as evinced in the instant case by the dramatic disparity betweenclaimant's AWW as an asphalt truck driver and as a snow plower, thepart-time job was a supplement to the primary source of income, not areplacement for it. We also note that the factors noted in Jacobs do notpurport to represent an exhaustive or exclusive list of what may beconsidered when determining whether a claimant is employed"concurrently" by two or more employers, and we agree with theappellate court dissent in this case that the duration and consistentseasonally recurrent nature of claimant's primary employment in this caseare also relevant.

The Township argues that Jacobs is inapposite because there theclaimant's employment for the two employers had overlapped before hislayoff. The Township characterizes "the true impact and import of Jacobs[as] the manner in which it measured the duration-the persistence-ofconcurrent employment." We disagree with this characterization of thecase. Although it is true that in Jacobs the claimant's employments hadpreviously overlapped, the court did not rely on that fact in concluding thatthe claimant was concurrently employed at the time of the injury, during alayoff. Nothing in the court's reasoning indicates that it was deciding"persistence" of concurrent employment, nor does the Township explainwhat language in the statute would permit concurrent employment to"persist." Indeed, later in its brief the Township argues that "it is theexistence, not the duration, of separation that removes both claims fromthe realm of 'working concurrently.' " We believe that the Jacobs courtproperly focused on the facts that the temporary layoff was customary forthe industry, and that the claimant was ready and willing to be recalled atany time, and intended to return to his other profession as soon as theopportunity presented itself. The latter conclusion explains the import ofthe observation that the earnings from the part-time employment weresupplemental to the earnings from the claimant's main occupation.

In reaching the conclusion that an employee may be concurrentlyemployed by two or more employers even during a temporary layoff, theJacobs court quoted with approval the following passage from a leadingtreatise on workers' compensation:

" '[F]airness to the employee and fairness to the employer-carrier are not symmetrical, and cannot be judged by the samestandards. To this one employee, this one loss is everything-hehas nothing against which to offset it. To the employer, and evenmore to the carrier, this is just one case among many. The ruleoperates impartially in both directions. Today this employer-carrier may be saddled with a slight extra cost; tomorrow thepositions may be reversed, and the employer-carrier will becompletely relieved of the cost of an injury to one of itsemployees in a concurrent-employment situation, when ithappens to be the other employment in which the injury occurs.This is the essence of the concept of spreading the risk in asystem like workmen's compensation. ***

For the injured workman, *** [h]e, and he alone, bears theburden to being reduced to $20 a week when his actual earningsmay have been five times that much. That is real unfairness. Bycomparison, the "unfairness" to the employer, in the formperhaps of a slight premium increase, eventually offset by thetimes he will benefit by the same rule, is an artificial constructwith no genuine content.' 2 A. Larson, Workmen'sCompensation