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Industrial Commission Division

JUSTICE McCULLOUGH delivered the opinion of the court:

Claimant Lloyd Zanger appeals from the order of the circuit court of Adams County confirming the decision of the Illinois Industrial Commission (Commission). Respondent employer is Mike Tournear Construction Company. The arbitrator awarded claimant temporary total disability in the amount of $104 per week for 53 2/7 weeks (820 ILCS 305/8(b) (West 1996)) and $88.90 per week for 94.75 weeks for permanent partial disability due to loss of use of the right foot to the extent of 45% and 5% of the man as a whole (820 ILCS 305/8(e)(11), (d)(2) (West 1996)). The arbitrator denied claimant's claim for payment of a $236.46 medical bill from Quincy Medical Group for treatment on August 14, 1996. The Commission modified the decision of the arbitrator by awarding the claimant the $236.46 in medical expenses (820 ILCS 305/8(a) (West 1996)) and affirmed the remainder of the arbitrator's decision.

The issue on appeal is whether the Commission finding that claimant's average weekly wage, $104, was against the manifest weight of the evidence. We affirm. Only those facts necessary to an understanding of this court's disposition will be discussed.

Claimant testified that on February 22, 1993, while working for respondent doing carpentry work constructing a pole barn machine shop, a gust of wind broke loose the side he was working on, pushing his ladder over backward and causing him to fall. At that time, he was being paid $8 per hour. He worked whenever weather permitted, and he maintained 13 hours per week. In that way, it did not "mess up my unemployment." He received $300 per week in unemployment benefits. Every two weeks he reported what he was earning to the Department of Employment Services. He worked the agreed 13 hours per week every week beginning with the week ending January 9, 1993, through February 20, 1993. Exhibits were admitted into evidence showing his gross pay was $104 per week. The exhibits also demonstrated the wages of other employees of respondent.

He was previously employed by Huck Fixture Company (Huck Fixture) in January 1991 and was laid off by Huck Fixture in September 1992. Claimant attempted to testify that a 1992 W-2 form showed he earned $21,788.43 while working at Huck Fixture in 1992. This exhibit was rejected prior to his testimony. Respondent objected to the testimony on the basis that it referred to a hearsay document that claimant was trying to authenticate. The objection was sustained. Claimant's attorney did not attempt to use the document to refresh claimant's recollection of how much he earned while working for Huck Fixture in 1992. No offer of proof was made.

The arbitrator calculated claimant's average weekly wage at $104 ($8 x 13 hours). 820 ILCS 305/10 (West 1996). The claimant's request to include unemployment compensation in the calculation was rejected by the arbitrator. The arbitrator found that unemployment compensation was neither earnings nor wages.

In affirming the arbitrator's decision as to average weekly wage, the Commission stated:

"The Commission relies on Le Roy Jacobs v. Industrial Comm'n (2nd Dist 1995)[,] 206 Ill. Dec. 945 at 948, 646 N.E.2d 312, 269 Ill. App. 3d 444[,] to affirm the Arbitrator's calculation of the average weekly wage. Petitioner worked for Huck Fixtures for 31 weeks of the 52 weeks preceding his accident. He was on indefinite layoff from Huck fixtures [sic] for at least five months when he was injured. His situation was much different from the sheet metal worker/claimant in the Jacobs case.

The Commission also notes that Petitioner's claimed wage calculation is based on earnings going back to January 1, 1992, more than 52 weeks prior to his injury. Petitioner also bases his claim of nine months work for Huck on the calendar year rather than on the period 52 weeks before his injury. The Commission relies on the requirement of