Forest City Erectors v. Industrial Commission

636 N.E.2d 969, 264 Ill. App. 3d 436, 201 Ill. Dec. 537, 1994 Ill. App. LEXIS 863

• Court: Appellate Court of Illinois
• Decided: June 3, 1994
• Docket: 1-93-1171WC
• Status: Published

Opinions

JUSTICE SLATER

delivered the opinion of the court:

The claimant, Daniel W. Wajerski, filed an application for adjustment of claim pursuant to the Workers’ Compensation Act (the Act) (111. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.). Claimant sought to recover benefits for an injury he sustained while working as an ironworker for the employer, Forest City Steel Erectors.

The arbitrator found that the claimant’s injury arose out of and in the course of his employment and that as a result of the injury he was temporarily totally disabled for 80s h weeks. The arbitrator also found that the claimant was permanently incapacitated from pursuing the occupation he was engaged in at the time of the injury and awarded him $380.53 per week for the duration of his disability pursuant to section 8(d)(1) of the Act (111. Rev. Stat. 1991, ch. 48, par. 138.8(d)(1)). The Industrial Commission (the Commission) affirmed the arbitrator’s decision but modified the amount awarded to $313.51 per week. The circuit court confirmed the Commission’s decision. The employer now appeals and the claimant cross-appeals. We affirm.

The record shows that the claimant was hired by the employer in September of 1988 to work as a journeyman ironworker. In November claimant was promoted to foreman. Claimant earned $19.27 per hour while working as an ironworker and an additional $1 per hour while working as a foreman. During the 14-week period that claimant worked for the employer prior to his injury, he worked an average of 44.7 hours per week, and his average weekly wage was $807.70. On December 27, 1988, claimant slipped and fell while walking down a ramp at a jobsite, fracturing his left ankle. There is no dispute that, as a result of his injury, the claimant is unable to perform his regular duties as an ironworker.

Two witnesses testified at arbitration regarding the amount of work available to ironworkers. Frank Pauley, secretary-treasurer of local number one of the Iron Workers’ Union, testified that a normal work week for a journeyman ironworker is 40 hours of work. According to Pauley, the job of an ironworker is full-time, not seasonal, work and ironworkers can work 52 weeks per year. Franklin Miezio, who had worked as a foreman for the employer, testified that claimant questioned him in October of 1988 regarding the amount of work available and whether he would be kept on the job. Miezio told claimant that the employer had "10 months to a year’s work” available. Miezio also signed a letter at claimant’s request indicating that the employer had work available for at least one year and that Miezio had requested that claimant remain employed for that period.

In addition to the testimony related above, a document entitled "Employee Pension History File List” was admitted into evidence. According to Pauley, the document was prepared by the pension fund office of the union and it shows the years in which the claimant worked as an ironworker and the number of hours worked in those years. That information is summarized as follows:

Year Hours

1971 1,057.00

1972 1,826.00

1973 1,880.00

1974 1,975.00

1975 1,594.00

1976 781.00

1977 710.00

1978

1979 1,230.00

1980 503.00

1981 857.00

1982 887.00

1983 43.00

1984 490.50

1985 549.00

1986 1,580.00

1987 1,046.50

1988 1,240.00.

As a result of his inability to return to work as an ironworker, claimant’s employer arranged for job counseling and he sought other work. In July of 1990 claimant began working as a "pole man” on a surveying crew, earning $6 per hour. Claimant was still engaged in this occupation at the time of the arbitration hearing.

The arbitrator, in addition to awarding temporary total disability benefits, which are not at issue here, found that the claimant was entitled to a wage differential award under section 8(d)(1) (111. Rev. Stat. 1991, ch. 48, par. 138.8(d)(1)). The arbitrator awarded the sum of $380.53, which represented 662/s% of the difference between the amount claimant would have been able to earn as an ironworker ($20.27 per hour x 40 hours per week $810.80) and the amount he was earning as a "pole man” ($240).

On review, the Commission modified the amount of the award of section 8(d)(1) benefits to $313.51 per week. The Commission found that section 8(d)(1) awards are subject to the same maximum limitation as permanent partial disability awards under section 8(b)(4). As noted above, the circuit court confirmed the Commission’s decision.

The employer raises two issues on appeal. First, it contends that the Commission erred in awarding section 8(d)(1) wage differential benefits without considering the claimant’s prior work and earnings history. Employer notes that claimant’s pension records establish that in 17 years as an ironworker he worked an average of 1,073.40 hours per year, and he was therefore only a part-time ironworker. Employer argues that to allow a section 8(d)(1) award to be based upon an assumption that claimant would work full time creates a windfall for claimant and, in Professor Larson’s words, "turn[s] a part-time able-bodied worker into a full-time disabled worker” (2 A. Larson, Law of Workmen’s Compensation § 60.21(d), at 10 — 707 (1992)). We disagree.

Section 8(d)(1) provides:

"If, after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, equal to 662/s % of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.” (Emphasis added.) 111. Rev. Stat. 1991, ch. 48, par. 138.8(d)(1).

Words used in a statute are to be given their plain and commonly understood meaning (Bohannon v. Industrial Comm’n (1992), 237 Ill. App. 3d 989, 606 N.E.2d 527), and where the language of a statute is clear and unambiguous, the courts are obligated to enforce the law as enacted by the legislature (see Illinois-Iowa Blacktop, Inc. v. Industrial Comm’n (1989), 180 Ill. App. 3d 885, 536 N.E.2d 1008). The language emphasized above clearly evidences the legislature’s intent that section 8(d)(1) awards are to be based on the number of hours constituting "full performance” of a particular occupation. Based on the facts of this case, we conclude that this claimant has demonstrated "full performance” of the duties of his occupation.

We also note that the interpretation of section 8(d)(1) advocated by the employer would, in effect, repeal Public Act 79 — 79 (Pub. Act 79 — 79, eff. July Í, 1975), which amended section 8(d)(1). Prior to amendment, section 8(d)(1) provided for wage differential benefits based on the "difference between the average amount which [claimant] earned before the accident” and the average amount he is earning after the accident. (Emphasis added.) (HI. Rev. Stat. 1975, ch. 48, par. 138.8(d)(1).) Public Act 79 — 79 replaced the language emphasized above with the current language referring to full performance of the claimant’s occupational duties. Changes in wording and phrasing are presumed to have been deliberately made (In re Marriage of Sutton (1990), 136 Ill. 2d 441, 557 N.E.2d 869), and when the legislature amends an act by deleting certain language, it is presumed that the legislature intended to change the law in that respect (In re Summary Suspension of Driver’s License of Rakers (1989), 187 Ill. App. 3d 27, 542 N.E.2d 1311; Smith v. Industrial Comm’n (1988), 170 Ill. App. 3d 626, 525 N.E.2d 81).

This court must give effect to the amended law in a manner consistent with the amendment. (General Electric Co. v. Industrial Comm’n (1986), 144 Ill. App. 3d 1003, 495 N.E.2d 68.) Accordingly, we find that it was proper for the Commission to calculate the section 8(d)(1) benefits without regard to claimant’s earnings prior to the accident.

Finally, we note that our decision here is consistent with previous decisions construing section 8(d)(1). In Old Ben Coal Co. v. Industrial Comm’n (1990), 198 Ill. App. 3d 485, 555 N.E.2d 1201, the claimant, a "grade 5” employee, was injured in two separate incidents. Claimant returned to work after the first injury at a different job classification and lower rate of pay because there had been a general layoff. After claimant sustained his second injury, the parties stipulated that his average earnings during the year preceding his injury had been $429.08 per week as calculated pursuant to section 10 of the Act (see HI. Rev. Stat. 1991, ch. 48, par. 138.10). Claimant was subsequently awarded wage differential benefits based upon what he would have earned as a grade 5 employee ($117.72 per day), rather than on his actual earnings the previous year. On appeal, the employer argued that the award should have been based on the amount of stipulated prior earnings because the claimant had not established that he was capable of earning more than the stipulated amount. The employer also contended that the award was speculative, because it did not take into account days off from work due to sickness, injury, absenteeism, layoffs or strikes. In response, the court stated:

"[T]he statute provides that a wage differential should be calculated on the presumption that but for the injury, the employee would be in the full performance of his duties. Accordingly, we hold that the Commission properly elected to compute the wage differential award based in part on the petitioner’s classification at the time of the original injury, rather than on the stipulated amount that he had actually earned.” (Emphasis added.) Old Ben Coal, 198 Ill. App. 3d at 493, 555 N.E.2d at 1207.

See also General Electric, 144 Ill. App. 3d 1003, 495 N.E.2d 68.

The employer next contends that the Commission erred in failing to consider the fact that the claimant’s wages as a "pole man” may increase each year. Specifically, employer contends that since the claimant’s wages could increase each year, the wage differential would automatically decrease and, as such, the Commission should have taken this fact into account when it calculated the award.

It is axiomatic that liability under the Act cannot be premised on speculation or conjecture but must be based solely on the facts contained in the record. Similarly, an award for loss of earnings cannot be based on speculation as to the particular employment level or job classification which a claimant might eventually attain. See Deichmiller v. Industrial Comm’n (1986), 147 Ill. App. 3d 66, 497 N.E.2d 452.

In this case, we note that on cross-examination of claimant, the employer asked claimant if he had discussed raises with his employer. This line of questioning was objected to as hearsay, as well as being speculative. The arbitrator sustained the objection and employer made an offer of proof indicating that the claimant would testify that his new employer told him that he would receive a raise of $3 per hour after each of his first three years on the job.

Any testimony by the claimant recounting what his employer told him would clearly be hearsay and was therefore inadmissible. (See In re Estate of Holmgren (1992), 237 Ill. App. 3d 839, 604 N.E.2d 1092.) Furthermore, whether claimant’s salary would in fact increase is highly speculative, since any number of circumstances may prevent such an occurrence. We also note that while the employer is barred from bringing a new action should the claimant’s wages increase, the claimant is also barred from bringing an action should his wages decrease. (See Petrie v. Industrial Comm’n (1987), 160 Ill. App. 3d 165, 513 N.E.2d 104.) Thus, both the claimant and the employer equally share the risk of changes in the claimant’s income. As such, we find that the Commission properly declined to speculate that a wage increase would occur.

We now consider the issue raised by the claimant in his cross-appeal. The claimant argues that the Commission erred in reducing his wage differential award. Specifically, claimant maintains that benefits awarded under section 8(d)(1) should not be subject to the same maximum amount limitation as that applied to permanent partial disability awards under section 8(b)(4). Claimant contends that the maximum benefit award under section 8(d)(1) should be 100% of the State’s average weekly wage. On the other hand, the Illinois State Federation of Labor and Congress of Industrial Organizations, in its brief as amicus curiae, argues that the maximum rate should be 1331/s % of the State’s average weekly wage.

We note, and the claimant concedes, that this issue has recently been addressed by this court in both Bohannon v. Industrial Comm’n (1992), 237 Ill. App. 3d 989, 606 N.E.2d 527, and Fernandes v. Industrial Comm’n (1993), 246 Ill. App. 3d 261, 615 N.E.2d 1191. We decline the invitation to reconsider those decisions and we find that the Commission did not err in limiting the claimant’s wage differential award pursuant to section 8(b)(4).

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI and WOODWARD, JJ., concur.