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Docket No. 90198-Agenda 27-March 2001.

RONALD SYLVESTER, Appellee, v. THE INDUSTRIALCOMMISSION et al. (Acme Roofing and Sheet Metal Company, Appellant).

Opinion filed July 19, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

Ronald Sylvester, petitioner, filed a claim under the Workers'Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992))after he was injured in the course of his employment with AcmeRoofing and Sheet Metal Company (Acme). The arbitrator hearingthe case determined that petitioner's average weekly wage was$368.43 and awarded him 230 6/7 weeks of temporary totaldisability (TTD) benefits. The arbitrator's decision was affirmedand adopted by the Industrial Commission, and the circuit courtconfirmed the Commission. The appellate court reversed thecircuit court, holding that the wage computation had been based onan erroneous interpretation of the governing statute, section 10 ofthe Act (820 ILCS 305/10 (West 1992)). 314 Ill. App. 3d 1100.Acme petitioned this court for leave to appeal (177 Ill. 2d R.315(a)). We granted leave to appeal and now affirm the judgmentof the appellate court.

BACKGROUND

Before this court the parties only dispute the calculation ofpetitioner's average weekly wage during the year prior to hisinjury. Accordingly, we shall limit our discussion to the factsgermane to this issue. As background, we note that petitioner'sworkers' compensation claim arose out of a serious injury in May1992 when he fell approximately 16 feet to the ground from theraised bed of a truck, shattering both of his ankles. As a result ofthis accident petitioner's right leg was amputated below the knee,and his left foot was permanently injured. None of these facts arein dispute.

At the hearing before the Industrial Commission, petitionertestified that he had been working for Acme for 19 years beforethe accident and was not employed by anyone else during thattime. At the time of the accident he was a roofer foreman andearned $21 per hour. Because the winter weather prevented muchwork being done, he usually signed up for unemployment duringthe winter. However, Acme put him to work for approximatelyfive hours per week on small jobs such as repairs or leak patching.

Petitioner testified that his job required him to be on call forAcme all week, year-round, and if work were available, he wouldwork a 40-hour week. He stated that when he worked a full week,he worked eight hours per day, five days per week. Petitionerintroduced into evidence his union contract, which stated that hehad to be paid overtime if he worked more than 10 hours per dayor 40 hours per week. The contract also stated that a normalworkday would be from 8 a.m. to 4:30 p.m., subject to change byagreement between the employer and employees, and that thelunch period was "one-half hour only." The contract furtherprovided that the regular workweek would "consist of 10-hour orless than the 10-hour work days, Monday through Friday, with amake-up day on Saturday."

Petitioner and Acme both introduced into evidencepetitioner's wage records for the 52 weeks prior to his accident.These documents reflected, for each week of the preceding year,the number of hours petitioner had worked and the amount he hadearned. The number of hours worked per week varied from 3 to40, and his weekly pay ranged from $60.75 to $818.25.Petitioner's and Acme's submissions were identical, except that onpetitioner's copy he wrote estimates, for each week, of the numberof days he had worked that week. Petitioner testified that theestimate was based on the number of hours worked that week.According to petitioner's estimate, he had worked a total of 131days during the previous 52 weeks.

On the issue of petitioner's earnings, the arbitrator found asfollows in the written order. During the 52 weeks from May 21,1991, to May 20, 1992, petitioner earned a total of $17,684.41, notcounting a Christmas bonus of $150. Acme issued defendant paychecks in 48 out of the 52 weeks. Petitioner's average weeklywage was $368.43, a figure at which the arbitrator arrived bydividing petitioner's total pay by 48, the number of weeks inwhich petitioner received pay. The arbitrator stated that "[t]hiscalculation follows the method employed by the Court in Cook v.Industrial Commission, [231 Ill. App. 3d 729 (1992)]."

Petitioner appealed. As previously noted, the IndustrialCommission affirmed and adopted the arbitrator's decision. Thecircuit court confirmed the Commission. However, the appellatecourt reversed the circuit court. The appellate court reviewed itsprevious decisions interpreting section 10 of the Act (820 ILCS305/10 (West 1992)), and held that the arbitrator had erred in thecalculation of petitioner's average weekly wage. The courtendorsed its prior decisions to the effect that in order to determineaverage weekly wage it was necessary to factor out all days whichthe claimant had lost through no fault of his own. 314 Ill. App. 3d1100. We granted Acme's petition for leave to appeal. 177 Ill. 2dR. 315(a). We also granted leave to the Illinois ManufacturersAssociation, Illinois Construction Industry Committees, IllinoisInsurance Association, National Roofing Contractors Association,Onesource Building Services, Inc., Yellow Freight System,Cambridge Integrated Services Group, Inc., West Bend MutualInsurance Company, and Custard Claims Management Services,Inc., to submit briefs as amici curiae. 155 Ill. 2d R. 345.

ANALYSIS

As previously noted, the only dispute is over computation ofpetitioner's average weekly wage. The parties agree that the caseis controlled by section 10 of the Act, which provides as follows:

"The compensation shall be computed on the basis ofthe 'Average weekly wage' which shall mean the actualearnings of the employee in the employment in which hewas working at the time of the injury during the period of52 weeks ending with the last day of the employee's lastfull pay period immediately preceding the date of injury,illness[,] or disablement excluding overtime, and bonusdivided by 52; but if the injured employee lost 5 or morecalendar days during such period, whether or not in thesame week, then the earnings for the remainder of such 52weeks shall be divided by the number of weeks and partsthereof remaining after the time so lost has been deducted.Where the employment prior to the injury extended overa period of less than 52 weeks, the method of dividing theearnings during that period by the number of weeks andparts thereof during which the employee actually earnedwages shall be followed. Where by reason of the shortnessof the time during which the employee has been in theemployment of his employer or of the casual nature orterms of the employment, it is impractical to compute theaverage weekly wages as above defined, regard shall behad to the average weekly amount which during the 52weeks previous to the injury, illness or disablement wasbeing or would have been earned by a person in the samegrade employed at the same work for each of such 52weeks for the same number of hours per week by thesame employer." 820 ILCS 305/10 (West 1992).

As the appellate court noted, section 10 provides fourdifferent methods for calculating average weekly wage. (1) Bydefault, average weekly wage is "actual earnings" during the 52-week period preceding the date of injury, illness or disablement,divided by 52. (2) If the employee lost five or more calendar daysduring that 52-week period, "whether or not in the same week,"then the employee's earnings are divided not by 52, but by "thenumber of weeks and parts thereof remaining after the time so losthas been deducted." (3) If the employee's employment beganduring the 52-week period, the earnings during employment aredivided by "the number of weeks and parts thereof during whichthe employee actually earned wages." (4) Finally, if theemployment has been of such short duration or the terms of theemployment of such casual nature that it is "impractical" to useone of the three above methods to calculate average weekly wage,"regard shall be had to the average weekly amount which duringthe 52 weeks previous to the injury, illness or disablement wasbeing or would have been earned by a person in the same gradeemployed at the same work for each of such 52 weeks for the samenumber of hours per week by the same employer."

In this case the parties agree that the arbitrator used the secondmethod, a conclusion made clear by the cite to Cook, which onlyinvolved the second method of calculation. The parties differ onwhat to divide earnings by to compute average weekly wage,however. Acme contends that since any week in which theemployee worked at least one day is technically a "part" of a week,and the statute provides that earnings are to be divided by theweeks "and parts thereof remaining," weeks in which theemployee worked at least one day should be counted the same asa full week of work. Thus, the total wages earned in the previous52 weeks must be divided by the number of weeks in that timeperiod in which the employee worked even one day. Petitionercontends that the fact finder should count the number of days theclaimant worked in the previous 52 weeks, divide that number bythe number of days in a workweek, and divide the earnings by theresult of this calculation. The arbitrator used the method suggestedby Acme, which resulted in petitioner's earnings being divided by48, as petitioner worked at least one day in all but four of the 52weeks preceding his injury. By petitioner's argument, his earningsshould have been divided by 26.2, as he worked only 131 daysduring the previous 52 weeks and his workweek was 5 dayslong-131 divided by 5 equals 26.2.

Normally, a wage determination by the Commission is afactual finding, and thus will be upheld on appeal unless againstthe manifest weight of the evidence. D.J. Masonry Co. v.Industrial Comm'n, 295 Ill. App. 3d 924, 932 (1998). However,the issue currently before us is solely a matter of statutoryconstruction. Accordingly, our review is de novo (MichiganAvenue National Bank v. County of Cook, 191 Ill. 2d 493, 503(2000)), and we are guided by familiar principles. Our primarygoal, to which all other rules are subordinate, is to ascertain andgive effect to the intention of the legislature. Henrich v.Libertyville High School, 186 Ill. 2d 381, 387 (1998). Wedetermine this intent by reading the statute as a whole andconsidering all relevant parts. A.P. Properties, Inc. v. Goshinsky,186 Ill. 2d 524, 532 (1999). We must construe the statute so thateach word, clause, and sentence, if possible, is given a reasonablemeaning and not rendered superfluous (A.P. Properties, Inc., 186Ill. 2d at 532), avoiding an interpretation which would render anyportion of the statute meaningless or void (McNamee v. FederatedEquipment & Supply Co., 181 Ill. 2d 415, 423 (1998)). We alsopresume that the General Assembly did not intend absurdity,inconvenience, or injustice. Michigan Avenue National Bank, 191Ill. 2d at 504. The Workers' Compensation Act is to be interpretedliberally (McNamee, 181 Ill. 2d at 428), to effectuate its mainpurpose-providing financial protection for interruption ortermination of a worker's earning power. Peoria Roofing & SheetMetal Co. v. Industrial Comm'n, 181 Ill. App. 3d 616, 620 (1989).

Following these principles, we find Acme's interpretation isrefuted by the plain language of section 10. See Peoria Roofing,181 Ill. App. 3d at 620. First, Acme's interpretation is inconsistentwith the statutory provision that the second calculation method isto be used whenever the employee lost five or more calendar days,"whether or not in the same week." According to Acme'sinterpretation, the average weekly wage changes only if theemployee loses five days in the same calendar week. Thus,Acme's construction conflicts with the "whether or not in the sameweek" language, because an employee must lose five days in thesame week for the second method to produce a different resultfrom the first method.

Acme's interpretation of the second method also conflictswith the concluding phrase, "after the time so lost has beendeducted." The clear meaning of this language is that time whichan employee does not work must be factored out of the calculationof the average weekly wage. In other words, if in a particular weekan employee works on Monday, but not Tuesday through Friday,the latter four days must be "deducted" in calculating his averageweekly wage. Acme's interpretation of the statute does not soallow. According to Acme, time is only deducted when it is lost inwhole-workweek increments. The clear meaning of the statute isto the contrary.

Our result is supported by the appellate court decisionsreviewing determinations of average weekly wage under thesecond method of section 10 of the Act. See, e.g., D.J. MasonryCo. v. Industrial Comm'n, 295 Ill. App. 3d 924 (1998). There, thecourt considered a workers' compensation claim filed by amasonry worker who had worked only 204 days during theprevious 52 weeks. The court confirmed the Commission'scalculation of his average weekly wage by dividing his earningsover the previous 52 weeks by 40.8, stating flatly that "thisprocedure comports with section 10." D.J. Masonry, 295 Ill. App.3d at 933.

Even more similar to the case at bar is Peoria Roofing, 181Ill. App. 3d 616. That case involved a roofer who had beenworking solely for the respondent during the 52 weeks precedinghis accident. He had worked in 43 different weeks, but had workedonly 134 days. The Commission determined that the number ofweeks used to calculate average weekly wage should be found bydividing the number of days worked by five. The circuit court setaside that decision, recalculating the wage by dividing earnings bythe number of weeks including at least one day of work. Theappellate court reversed the circuit court, reinstating theCommission's wage calculation. Peoria Roofing, 181 Ill. App. 3dat 620-21. The court primarily relied on the fact that, as we haveexplained above, the circuit court's interpretation of the statutewas inconsistent with its plain language and rendered portions ofit superfluous.

Acme contends that Cook and Ricketts support itsinterpretation of section 10. These cases are distinguishable.Ricketts involved a wage calculation under the third provision ofsection 10, which deals with employment which has extended overless than 52 weeks. See Ricketts v. Industrial Comm'n, 251 Ill.App. 3d 809, 811-12 (1993). Cook did not involve the question atissue here; rather, the claimant in that case was attempting toextrapolate the number of weeks he had worked from his totalwages and claimed hourly wage-of which there was no evidencein the record. See Cook, 231 Ill. App. 3d at 730-31. In neitherCook nor Ricketts was the result based on statutory construction.Rather, both cases were clearly decided on the insufficiency of theevidence the claimant introduced in support of his claimed wage.See Ricketts, 251 Ill. App. 3d at 812 ("[b]ased on claimant'sfailure to provide other credible evidence concerning prioremployment, the Commission's determination of his averageweekly wage rate comports with the statutory formula"); Cook,231 Ill. App. 3d at 731 ("[g]iven the scant evidence before theCommission, we conclude that its determination of claimant'saverage weekly wage was not against the manifest weight of theevidence"). Although Cook did continue on to state in dictum thatthe claimant's proposed average weekly formula would beincorrect even if he had introduced sufficient evidence to supportit, petitioner in this case is not using the formula proposed inCook. Indeed, in its discussion the Cook court frankly recognizedthat section 10 of the Act "plainly provides that lost time is to be'deducted' before the number of weeks and parts thereof claimantworked are divided into a claimant's earnings." Cook, 231 Ill.App. 3d at 732-33.

Acme urges that petitioner's construction of section 10provides workers with a "windfall," and makes it more financiallyadvantageous to be injured than to be employed, relying on thiscourt's admonition against such a result in Hasler v. IndustrialComm'n, 97 Ill. 2d 46 (1983). We are not persuaded by thisargument. First, the situation in this case does not rise to the levelof windfall before us in Hasler. By our calculations, deducting"lost" time, as required by the statutory scheme, will lead topetitioner's receiving approximately 32% more in TTD benefitsthan he would have earned as regular wages.⁽¹⁾ By contrast, inHasler, the claimant was advocating for a method of wagecomputation which would have resulted in her being "awarded anamount almost six times greater than her actual earnings." Hasler,97 Ill. 2d at 52. It is important to note, as well, that it would beinaccurate to state that petitioner receives a 32% "windfall,"because his "actual earnings" for purposes of section 10 do notinclude his yearly bonus, overtime pay, or the unemploymentcompensation that he regularly earned during the winter months.820 ILCS 305/10 (West 1992); Illinois-Iowa Blacktop, Inc. v.Industrial Comm'n, 180 Ill. App. 3d 885, 893 (1989). When thesefactors are taken into account, it is difficult to characterizepetitioner as having received a financial bonanza when he sufferedthe two crushed ankles which resulted in the partial amputation ofone of his legs.

As was acknowledged in Ricketts, although concern over awindfall to the employee remains relevant in computing averageweekly wage, it is not determinative. Ricketts, 251 Ill. App. 3d at811. With the exception of the dictum in Cook, the appellate courthas consistently rejected the windfall argument in construingsection 10 to exclude lost time from the computation of averageweekly wage. See 314 Ill. App. 3d at 1108; D.J. Masonry, 295 Ill.App. 3d at 933-34; Peoria Roofing, 181 Ill. App. 3d at 620.Section 10 "resulted from negotiations and compromise betweenbusiness and labor interests." Illinois-Iowa Blacktop, 180 Ill. App.3d at 891. It "both benefits and disadvantages both business andlabor," in that although the worker is benefitted by lost time beingfactored out of average weekly wage, the employer is benefitted bythe fact that overtime wages, bonuses and unemploymentcompensation are excluded from the calculation of the employee'sincome. Illinois-Iowa Blacktop, 180 Ill. App. 3d at 893. We see noreason to upset this carefully crafted legislative scheme.

Acme cites in support of its argument the following commentof Senator Bruce during the Senate debates on House Bill 3250, bywhich was enacted the current version of section 10:

"[The bill] redefines the average weekly wage, so that apart-time employee is not paid on a full forty-hour week,but only receives compensation if he works ten hours, hegets two-thirds [sic] of his ten-hour actual earnings." 81stIll. Gen. Assem., Senate Proceedings, July 1, 1980, at 22(statements of Senator Bruce).

This comment is of little relevance to our analysis. First, thestatutory language is clear and unambiguous. When this is the casewe must apply the statute without resort to further aids of statutoryconstruction (Michigan Avenue National Bank, 191 Ill. 2d at 504),such as legislative debates. Moreover, even if we were to considerthe Senator's comment, he would appear to have been referring tothe fourth calculation method listed in section 10, the only methodwhich refers to hours worked per week. This statement "has noeffect on construction workers," who are accorded "specialconsiderations," because of "the unique nature of their work."Illinois-Iowa Blacktop, 180 Ill. App. 3d at 892-93.

Acme also contends that, as in Cook and Ricketts, petitionerfailed to introduce evidence sufficient to support his claim. We seeno merit to this contention. Petitioner testified that he worked onlyfor Acme, that he was required to be on call all week, year-round,and that when work was available, he worked a 40-hour week. Healso testified that when he worked a full week, he worked eighthours per day, five days per week. For each week he worked heestimated the number of days he worked, based on the number ofhours he worked. This testimony was supported by the unioncontract, which stated that the regular workweek went fromMonday through Friday with a make-up day on Saturday, and alsostated that a normal workday was from 8 a.m. to 4:30 p.m., witha half-hour for lunch. Although some of the provisions of theunion contract were subject to change by mutual agreementbetween employer and employees, Acme introduced no evidenceof any changes during the year preceding petitioner's injury. Nordid Acme introduce any evidence to counter petitioner's estimatesof the number of days that he had worked. We believe there wassufficient unrebutted evidence to establish a 5-day, 40-hourworkweek in general, and to establish the exact number of daysworked.

Acme finally contends that we could confirm the Commissionby looking to the fourth calculation method listed in section 10,which allows "regard [to] be had to the average weekly amountwhich during the 52 weeks previous to the injury, illness ordisablement was being or would have been earned by a person inthe same grade employed at the same work for each of such 52weeks for the same number of hours per week by the sameemployer" if it is "impractical" to use any of the other methodslisted in section 10 because of the brevity or casual nature of theemployment relationship. 820 ILCS 305/10 (West 1992). We seeno basis for resort to the fourth method. Acme does not evensuggest why computation according to the other methods would beimpractical. Morever, Acme introduced absolutely no evidence ofwhat "would have been earned by a person in the same gradeemployed at the same work for each of such 52 weeks for the samenumber of hours per week by the same employer." Acme suggests,instead, that this can be inferred from what petitioner himselfearned. This suggestion merely highlights why the fourth methodis inapplicable in this case. The point of the fourth method isclearly to allow an employer to demonstrate how much anestablished employee would have earned, when the petitioner'swork situation does not provide a sufficiently reliable basis so tofind. To contend that petitioner's own earnings are reliableevidence of yearly earnings is to establish that the fourth methodneed not be used. We reject this argument as well.

CONCLUSION

For the reasons above stated, we affirm the judgment of theappellate court.

Affirmed.

1. ¹Petitioner's wages during the previous 52 weeks, as determined bythe arbitrator, were $17,684.41. Dividing this number by 26.2 results inan average weekly wage of $674.98. But TTD payments are only 662/3% of average weekly wage. 820 ILCS 305/8(b)(2) (West 1992). 662/3% of $674.98 is approximately $450 per week, or $23,400 per year.This is approximately 32% greater than $17,684.41. ($23,400-$17,684= $5,716; $5,716/$17,684.41 = 0.32, or 32%.)