D. J. Masonry Co. v. Industrial Comm'n

Annotate this Case
March 24, 1998

No. 1--96--4131WC

IN THE APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

Industrial Commission Division

D.J. MASONRY CO., ) Appeal from the Circuit Court
) of Cook County.
Petitioner-Appellant, )
)
v. ) No. 95L50307
)
THE INDUSTRIAL COMMISSION, )
(Chuck Botta), ) Honorable
) George Smith,
Respondent-Appellee. ) Judge, Presiding.

JUSTICE COLWELL delivered the opinion of the court:

Claimant, Chuck Botta, filed an application for adjustment of
claim pursuant to the Workers' Compensation Act (820 ILCS 305/1 et
seq. (West 1994)) (Act) for injuries he sustained while working for
D.J. Masonry Company (D.J. Masonry). The arbitrator awarded Botta
temporary total disability for 98-1/7 weeks and $2,500 in penalties
under section 19(l) of the Act. See 820 ILCS 305/19(l) (West
1994). The Commission modified the arbitrator's award by
increasing the average weekly wage. The Commission also awarded
Botta penalties and attorney fees pursuant to section 19(k) and
section 16 of the Act. See 820 ILCS 305/16, 19(k) (West 1994).
The circuit court confirmed the Commission's decision, but remanded
the cause to the Commission for a re-calculation of the attorney
fees and penalties.
On appeal, D.J. Masonry contends that the state of Indiana,
not the state of Illinois, has jurisdiction over this accident.
Further, D.J. Masonry argues that the Commission's average weekly
wage calculation is erroneous and that the Commission erred in
awarding TTD benefits beyond November 30, 1993. Finally, D.J.
Masonry maintains that no penalties should be awarded in this case.
We affirm in part and reverse in part.
The record shows that in November 1988 Botta was unemployed
and living in South Holland, Illinois. Tom Goralka, a friend of
Botta's, called Botta one day in November and told him that he
currently worked for D.J. Masonry, which was located in Indiana.
Goralka told Botta that D.J. Masonry might have a job for him and
gave him the owner's phone number.
Botta immediately telephoned the owner, Richard Devries, who
lived in Indiana. Botta told Devries that he was a friend of
Goralka and that he was an experienced laborer looking for work.
Devries told Botta to go to a job site in Crete, Illinois, the
following morning and to speak with him.
Botta visited the Crete job site the next morning. He
introduced himself to Devries and Devries commented on Botta's
possessing his own tools. Devries told Botta to talk to the labor
foreman and to tell the foreman that he was going to be given a
trial. After speaking with the foreman, Botta worked the remainder
of the day scaffolding and tending to the bricklayers. At the end
of the day, around 4:00 p.m., Botta spoke with Devries. Devries
told Botta that he did a good job and that, as far as he was
concerned, Botta had a job. Devries then gave Botta tax forms to
complete. Botta completed the forms that evening and gave them to
Devries at the job site the next day.
Botta worked for D.J. Masonry through December 22, 1992. On
December 22, Botta was injured when a scaffold fell on top of him
while he was working at a job site in Indiana. There is no dispute
between the parties that Botta was injured during the course of his
employment.
At the arbitration hearing, Botta testified that he felt
immediate pain in his leg, head, and back after the scaffold fell
on top of him. While he waited for the paramedics, he noticed that
his head was bleeding. The paramedics took Botta to the hospital.
At the hospital, Botta had stitches over his eyes and in the back
of his head. Botta went home that night. He did not return to
work the next day.
Botta visited his family physician, Dr. Richard S. Kijowski,
on December 24, 1992. On January 5, 1993, Botta noticed lower back
and left leg pain. He reported to Dr. George S. Miz, a spinal
surgeon. Dr. Miz ordered a MRI and physical therapy.
On February 18, 1993, Botta returned to Dr. Kijowski.
According to Dr. Kijowski's medical records, Botta had not had any
improvement with his "persistent severe left leg pain." Dr.
Kijowski recommended surgery and discussed with Botta the
possibility that he may not be able to return to work as a laborer.
On March 8, 1993, Botta had back surgery. He was discharged
on March 9. Botta testified that, after the surgery, his back did
not hurt as much, but that his left leg pain remained. Botta
returned to physical therapy. In addition, he completed a work-
hardening program. Botta stated that his left leg did not respond
to the work hardening or the physical therapy.
On August 31, 1993, Dr. Miz prescribed an MRI. The MRI was
conducted on September 17, 1993. According to the radiologist's
report, degenerative changes in Botta's back had occurred, but no
disc herniation was detected.
In November 1993, Dr. Miz recommended an additional lumbar
myelogram and post-myelogram CT scan. The tests were performed on
January 18, 1994. According to the medical records, the tests
revealed a small herniation and a mild generalized bulge.
At the request of D.J. Masonry, Botta was examined by Dr.
Marshall Matz, a board-certified neurosurgeon, on November 30,
1993. According to Dr. Matz's December 1, 1993, report, Botta had
good strength, normal reflexes, and walked without a limp. Also,
Botta squatted only about a third of the usual range because,
according to Botta, his left leg would not bend anymore.
In an evidence deposition, Dr. Matz testified that the results
of the examination showed that Botta did not have a pinched nerve.
In addition, Dr. Matz explained that Botta's pain in his leg was
not radiating behind his knee. Therefore, his knee was simply a
"localized area of discomfort." Then, Dr. Matz opined that Botta
was not in need of further treatment. Dr. Matz explained that the
neurological examination did not reveal any objective evidence of
root involvement. Consequently, Botta could return to active
employment with "common sense limitations and restrictions with
prudent use of the lower back."
Dr. Matz next commented on Botta's September 17, 1993, MRI.
Dr. Matz stated that the MRI's result of there not being any disc
herniation supported his opinion. Further, the January 18, 1994,
myelograms were "normal" in that they did not reveal that there was
a herniated disk, root compression, or spinal stenosis. Dr. Matz
explained that, taking into consideration his examination and these
tests, there was no objective evidence that Botta "was suffering
from any derangement about the lower back that required further
treatment."
On March 25, 1994, Dr. Joseph G. Thometz, an associate of Dr.
Miz, examined Botta. According to Dr. Thometz's report, Botta's
flexion was limited. Further, the report indicates that Botta was
in need of continued treatment and that he should not return to his
construction duties.
Dr. Matz examined Botta again on March 30, 1994. Dr. Matz
testified that, on that date, Botta's reflexes were normal and that
he had good strength. Dr. Matz then expressed again his opinion
that there was no objective evidence of low back derangement that
necessitated further treatment. Further, Dr. Matz opined that a
diskogram would not be beneficial in evaluating Botta's complaints.
Instead, the tests already conducted, the MRI and the myelograms,
could better detect any problem.
On cross-examination, Dr. Matz acknowledged that he does not
prescribe diskograms for his patients unless they are required as
part of a protocol for spinal tapping because he believes
diskograms are outdated and "almost always" show that surgery
should be performed. Dr. Matz stated that he disagreed with Dr.
Miz's and Dr. Slack's diagnosis of left leg sciatica (nerve root
compression). However, assuming a person did have left leg
sciatica, he would impose legitimate work restrictions, including
a restriction from heavy manual labor.
An April 14, 1994, letter from Dr. Miz to D.J. Masonry's
insurance company states that Botta should receive further
treatment for his leg. The report indicates also that Dr. Miz
disagrees with Dr. Matz's opinion that Botta had reached maximum
medical improvement.
In May 1994, Botta treated with Dr. Charles M. Slack.
According to a letter to Dr. Slack from Botta's attorney, Botta was
to be examined by Dr. Slack, by agreement of both parties, for
purposes of his evaluation and treatment recommendations. The
letter indicates that Botta's post-operative medical care is at
issue in litigation, and that Dr. Miz recommends a diskogram, while
Dr. Matz recommends no further treatment.
According to Dr. Slack's medical report, Botta was
experiencing leg pain at the time of his visit. The report
recommends that, because Botta's pain was persistent, Botta should
undergo a lumbar diskogram and post diskogram CT "in an attempt to
further delineate some of the [degenerative] changes" noted in the
MRI. The report states that if a surgical lesion was not noted
after the additional study, Botta should proceed with a functional
capacity evaluation and work conditioning. Dr. Slack's report adds
that Botta should "remain temporarily totally disabled."
At the arbitration hearing, Botta explained that, although he
attempted to undergo the diskogram, the test had not been done
because D.J. Masonry's insurance company refused to pay for it.
Further, Botta explained that, in the four years that he worked for
D.J. Masonry, he never visited the company's main office at its
Cedar Lake, Indiana, location. Instead, he worked only at the
various job sites. Botta stated that the majority of the job sites
were in Illinois, but that about 25% of the job sites were in
Indiana.
Finally, Botta testified to the current condition of his leg.
Botta stated that he cannot sit or stand for long periods, and that
he cannot walk for a long period. Botta said that his leg hurts if
he takes a long stride or if he attempts to climb stairs. His leg
hurts also when he bends over and tries to pick up something.
Overall, the pain in his leg is sharp, and it travels from his
buttocks down to the back of his kneecap.
On cross-examination, Botta acknowledged that he visited a
chiropractor "[o]nce or twice" in 1992 regarding his back. Botta
then testified to the frequency of his work. Botta explained that,
when the weather permitted and the work was available, Botta
averaged a forty-hour week. Botta stated, however, that there were
several times during the year when work was unavailable, or when
they were unable to work due to the weather. Finally, Botta
acknowledged that he had not sought work of any kind anywhere since
the accident.
The arbitrator determined first that Illinois had jurisdiction
over Botta's claim because "the contract for hire" occurred in
Illinois in that Devries hired Botta after Botta worked a day in
Crete, Illinois. Second, the arbitrator found that D.J. Masonry's
reliance on Dr. Matz as its basis for refusing to pay for the
diskogram was improper. The arbitrator stated that there was no
reasonable basis for D.J. Masonry to rely on Dr. Matz as its basis
for withholding TTD benefits. Therefore, the arbitrator awarded
Botta further compensation in the amount of $2,500 under 19(l).
Finally, the arbitrator determined that Botta was entitled to TTD
benefits for 98-1/7 weeks.
The Commission modified the arbitrator's average weekly wage
award from $506.06 to $575.90. The Commission also awarded Botta
additional compensation of $18,839.44 under section 19(k) of the
Act and attorney fees of $3,767.89 under section 16 of the Act.
The Commission otherwise adopted the arbitrator's findings.
The circuit court affirmed the Commission's decisions
concerning jurisdiction, Botta's average weekly wage, and the
period for which Botta was temporarily and totally disabled. The
court, however, found that the Commission erred in the calculation
of section 19(k) penalties. The court added that, because the
section 16 penalty award was based on the section 19(k) award, it
too had to be set aside. Consequently, the court remanded the case
to the Commission for calculation of the section 19(k) and section
16 awards.
On appeal, D.J. Masonry argues that Illinois is without
jurisdiction to hear Botta's claim. Further, D.J. Masonry contends
that the Commission's average weekly wage was computed contrary to
law and that TTD benefits were improperly awarded beyond December
1, 1993. Finally, D.J. Masonry maintains that the Commission
cannot award penalties and attorney fees in this case.
I.
We turn first to D.J. Masonry's contention that Illinois lacks
jurisdiction to hear Botta's claim. Under the Act, there are three
bases for acquiring Illinois jurisdiction: (1) the contract for
hire was made in Illinois; (2) the accident occurred in Illinois;
and (3) the claimant's employment was principally localized in
Illinois. See 820 ILCS 305/1(b)(2) (West 1994); Burtis v.
Industrial Comm'n, 275 Ill. App. 3d 840, 842 (1995). In this case,
the accident did not occur in Illinois; it occurred in Indiana.
Accordingly, we have jurisdiction only if the contract for hire was
made in Illinois, or Botta's employment is principally localized in
Illinois.
The place where a contract for hire was made is the place
where the last act necessary for the formation of the contract
occurred. Youngstown Sheet & Tube Co. v. Industrial Comm'n, 79 Ill. 2d 425, 433 (1980). Whether a contract for hire was made in
Illinois is a question of fact for the Commission to determine. F
& E Erection Co. v. Industrial Comm'n, 162 Ill. App. 3d 156, 168
(1987). We will not overturn the Commission's decision unless that
decision is against the manifest weight of the evidence. Ford
Aerospace and Communications Services, Inc. v. Industrial Comm'n,
262 Ill. App. 3d 1115, 1120 (1994). For a finding to be contrary
to the manifest weight of evidence, an opposite conclusion must be
apparent. Teska v. Industrial Comm'n, 266 Ill. App. 3d 740, 742
(1994). Indeed, a decision is contrary to the manifest weight of
evidence only when the court determines that no rational trier of
fact could have agreed with the agency's decision. Board of
Trustees of Southern Illinois University v. Knight, 163 Ill. App.
3d 289, 291 (1987).
The record shows that, in his conversation with Botta, Devries
told the claimant to report to a site in Illinois to meet with him.
Botta reported to the Illinois site and spoke with Devries.
Devries did not tell Botta that he had a job at that time.
Instead, he instructed Devries to tell the foreman that he was
going to be given a trial. Botta worked the entire day before
speaking with Devries again about the job. At that time, Devries
told Botta he had done a good job and gave him tax forms.
There is nothing in the record that disputes Botta's testimony
at the arbitration hearing. Further, there is no evidence that
Devries guaranteed Botta a job during his telephone conversation
with him. In addition, there is nothing in the record that
suggests that Devries gave Botta a job before Botta reported to the
site. Indeed, Devries gave Botta the tax returns after Botta
completed the day of work and after telling Botta that, as far as
he was concerned, Botta had a job. We find that these facts
support the Commission's finding that the contract for hire
occurred at the job site in Illinois.
D.J. Masonry contends that Devries offered Botta the job
during their phone conversation, and Botta's showing up at the
Illinois job site was merely an acceptance of the job offer.
Therefore, because the job offer was made from Indiana, the
contract for hire was made in Indiana, not Illinois. We disagree.
In Ford Aerospace and Communications Services, Inc., the
claimant, who lived in Chicago, sent a r‚sum‚ to the employer's
Nevada office. An individual from the employer's personnel office
contacted the claimant and told him to fill out an application.
The claimant completed the application and mailed it to Nevada.
The application stated that the claimant would not become an
employee until he signed an employment agreement. The claimant
subsequently flew to Nevada for a physical and an orientation
program. Upon arriving in Nevada, the claimant signed the
employment agreement. Several months later, the claimant was
injured in the course of his employment. He filed a claim under
the Act, alleging that Illinois had jurisdiction over his claim
because the contract for hire was made in Illinois due to his
completing the application in Illinois. Ford Aerospace, 262 Ill.
App. 3d at 1116-17.
The Ford Aerospace court found that Illinois lacked
jurisdiction to hear the claimant's case. The court explained
that, pursuant to the application's instructions, the claimant did
not become an employee until he signed the employment agreement.
Consequently, the signing of the employment agreement served as the
last act necessary for the formation of the contract. Thus, as the
claimant signed the form in Nevada, the last act, and therefore the
contract, was completed in Nevada, and Illinois did not have
jurisdiction over the claim. Ford Aerospace, 262 Ill. App. 3d at
1120-21.
In this case, a similar condition to employment existed.
Before being hired, Botta had to work a day as a "trial." This
trial work day occurred in Illinois. Indeed, the last act
necessary to the formation of the contract was Devries' accepting
Botta as an employee after Botta's trial day of work at the job
site. D.J. Masonry's hiring of Botta could have been shown by
Devries' telling Botta he had a job, his giving Botta tax returns,
or his informing Botta where to come to work the next day. All of
these "last acts," however, occurred in Illinois. Accordingly, we
find that the Commission's decision that the contract for hire
occurred in Illinois is not against the manifest weight of the
evidence.
As we have determined that Illinois has jurisdiction over
Botta's claim because the contract for hire occurred in Illinois,
we decline to address whether jurisdiction would vest under the
principally localized test.
II.
The material in this section is not to be published pursuant
to Supreme Court Rule 23 (166 Ill. 2d R. 23).
D.J. Masonry contends next that the Commission erred in
granting Botta TTD benefits beyond November 30, 1993. D.J. Masonry
claims that the medical records do not show that Dr. Miz examined
Botta after November 30, 1993. Therefore, the only relevant
evidence regarding Botta's medical condition after this date is Dr.
Matz's evaluation, which came after a direct examination of Botta.
Consequently, because Dr. Matz found that Botta was able to return
to work and was not in need of further treatment, no TTD is due
Botta after November 30.
The time during which a claimant is temporarily totally
disabled is a question of fact to be determined by the Commission.
Zenith Co. v. Industrial Comm'n, 91 Ill. 2d 278, 285 (1982).
Whether a claimant is entitled to TTD compensation and for how long
a claimant is entitled to TTD are questions of fact that this court
will disturb only if such findings are against the manifest weight
of the evidence. Manis v. Industrial Comm'n, 230 Ill. App. 3d 657,
660 (1992).
In workers' compensation cases, it is the function of the
Commission to decide questions of fact and causation, to judge the
credibility of witnesses, and to resolve conflicting medical
evidence. Teska, 266 Ill. App. 3d at 741. In other words, the
Commission's function is to decide which of conflicting medical
views is to be accepted. Beeler v. Industrial Comm'n, 179 Ill.
App. 3d 460, 466 (1989). Consequently, a reviewing court cannot
overturn the Commission's findings simply because a different
inference could be drawn from the facts. Beeler, 179 Ill. App. 3d
at 466. Additionally, this court cannot substitute its judgment
for that of the Commission. Beeler, 179 Ill. App. 3d at 466.
Thus, this court will not reject reasonable inferences of the
Commission merely because it might have drawn a contrary reference
on the particular facts. International Harvester v. Industrial
Comm'n, 93 Ill. 2d 59, 65 (1982).
We find that the Commission did not err in adopting Dr. Miz's,
Dr. Thometz's, and Dr. Slack's opinions that Botta needed further
treatment and was unable to return to work. Further, we find the
medical records of these doctors adequately document Botta's
medical condition after November 30, 1993.
Dr. Miz's December 16, 1993, letter to D.J. Masonry's
insurance company explains that Dr. Miz saw Botta on that date and
that he is awaiting insurance approval for the myelogram tests.
After the insurance company gave its approval, the tests were
conducted in January 1994. We find nothing significant in this
month-and-a-half delay in medical records, as Dr. Miz and Botta
were awaiting approval from D.J. Masonry's insurance company to
perform tests.
On February 1, 1994, two weeks after the January 1994 tests,
a note by Dr. Miz states that, although the myelogram reports a
small herniation of a disc, the herniation is not evident upon Dr.
Miz's review of the films. Therefore, Dr. Miz writes that he will
review the films with the neuro-radiologist for final
interpretation. Again, we find nothing relevant in a medical
record's not being included in the record for this period, as Botta
and Dr. Miz were awaiting the results of his January tests.
In March 1994, Botta was examined by Dr. Miz's associate, Dr.
Thometz, who indicated that further treatment was necessary. Less
than one month later, Dr. Miz reports that Botta was still
complaining of pain. Dr. Miz also prescribed a diskogram. Dr.
Slack's examination of Botta in May 1994 supports Dr. Miz's
recommendation that Botta undergo a diskogram and Dr. Thometz's and
Dr. Miz's opinions that Botta is unable to return to work.
Therefore, the record shows that, between March and May 1994, Botta
was examined by two doctors, and ordered to receive treatment by a
third.
We find that this chronology shows that Botta was awaiting
insurance approval, undergoing tests, or being physically examined
by doctors in five of the six months after November 1993. In the
other month, February, Botta was awaiting the results of his
myelogram tests. Accordingly, although there was conflicting
evidence from Dr. Matz concerning whether Botta needed further
treatment, we find that there is sufficient evidence in the record
from Dr. Miz's, Dr. Slack's, and Dr. Thometz's medical records for
the Commission to have found that Botta was unable to return to
work as of November 30, 1993. Therefore, the Commission's decision
is not against the manifest weight of the evidence. See Boatman v.
Industrial Comm'n, 256 Ill. App. 3d 1070, 1072 (1993) (test is not
whether this court might reach the opposite conclusion, but whether
there is sufficient factual evidence in the record to support the
Commission's decision).
III.
D.J. Masonry argues next that the Commission's calculation of
Botta's average weekly wage is contrary to law. Section 10 of the
Act provides the basis for computing compensation. See 820 ILCS
305/10 (West 1994). Pursuant to section 10, an employee's average
weekly wage is computed by taking the employee's actual earnings of
the last 52 weeks immediately preceding the date of injury and
dividing by 52. 820 ILCS 305/10; Smith v. Industrial Comm'n, 174
Ill. App. 3d 213, 215 (1988). If, however, the employee lost 5 or
more calendar days during that 52-week period, whether or not in
the same week, the earnings for the remainder of the 52 weeks shall
be divided by the number of weeks and parts thereof remaining after
the time so lost has been deducted. 820 ILCS 305/10.
The Commission determined that, after subtracting time lost
due to inclement weather and work being unavailable, Botta worked
204 days out of a 260-day year. The Commission divided 204 days by
a 5 day work week to reach the number of weeks, 40.8, out of the
52-week year Botta worked. The Commission then divided this
number, 40.8, into $23,496.88, the amount of Botta's earnings
during this period, as stipulated to by the parties, and arrived at
an average weekly wage of $575.90. This number yields a
compensation rate of $383.93 weekly in TTD benefits. See 820 ILCS
305/8 (b)(1) (West 1994) (TTD award is two-thirds of an employee's
average weekly wage).
On appeal, D.J. Masonry contends that this weekly award
results in a windfall for Botta. D.J. Masonry maintains that, if
Botta receives $575.90 a week for the next 52 weeks, he will earn
$29,946.80 in a year, which is $6,449,92 more than the $23,496.88
he earned the year before his injury. Therefore, the Commission's
calculation is incorrect, and Botta's average weekly wage should be
determined by dividing $23,496.88 by 52 weeks.
Initially, we note that a Commission's wage determination is
a question of fact which a reviewing court will not disturb on
appeal unless it is contrary to the manifest weight of the
evidence. Ogle v. Industrial Comm'n, 284 Ill. App. 3d 1093, 1096
(1996). We find that the Commission's wage determination is not
against the manifest weight of the evidence.
In McCartney v. Industrial Comm'n, 174 Ill. App. 3d 213
(1988), the court found that the Commission's dividing the
claimant's earnings by 52 weeks was against the manifest weight of
the evidence because the claimant, a construction worker, "was
often laid off from work for long periods of time" due to bad
weather. The court said that the evidence adduced at the
arbitration hearing showed that the claimant worked only 509 hours
in the 12 months preceding the injury. Accordingly, although the
claimant did not present detailed proof as to the number of weeks
and parts thereof worked, the McCartney court reversed the
Commission's award and remanded the case to the Commission for a
proper wage determination. McCartney, 174 Ill. App. 3d at 215.
Unlike the claimant in McCartney, here the claimant carefully
documented what weeks he worked and what parts of weeks he worked
for the 52-week period preceding his injury. Consequently, in this
case the Commission had before it sufficient evidence to conclude
that Botta missed at least 5 days of work, and, therefore, his
earnings could not be divided by 52 to compute his average weekly
wage. See 820 ILCS 305/10; McCartney, 174 Ill. App. 3d at 215.
Instead, Botta's earnings had to be divided by the "number of weeks
and parts thereof remaining after the time so lost ha[d] been
deducted." See 820 ILCS 305/10.
After reviewing Botta's exhibit, Botta's pay stubs, and D.J.
Masonry's wage statement, the Commission determined that Botta
missed 56 days of work out of a 260 work-day year, meaning Botta
worked 40.8 weeks out of the 52 weeks. As a result, instead of 52,
the Commission divided Botta's earnings by 40.8. As this procedure
comports with section 10, we find that Commission's average weekly
wage figure is not against the manifest weight of the evidence.
D.J. Masonry repeatedly emphasizes in its brief that the
Commission's award is wrong because it results in a windfall, an
outcome that is contrary to law, and, in effect, unconstitutional.
We disagree. First, we note that, in his treatise on worker's
compensation law, Professor Larson acknowledges that the
computation of an employee's average weekly wage may be higher or
lower than the employee's actual wage. Professor Larson adds,
however, that such a result is not unreasonable or unfair unless
the wages for the period are abnormally high or abnormally low. 2
A. Larson, Workmen's Compensation Law, 60.11(d), at 10-632-33
(1996).
Second, this court addressed the issue of an employee's
receiving such a windfall in Illinois-Iowa Blacktop v. Industrial
Comm'n, 180 Ill. App. 3d 885 (1989). In Illinois-Iowa Blacktop,
the Commission divided the claimant's earnings by the 20 weeks the
claimant actually worked instead of by 52 weeks because the
claimant missed more than 5 days of work during the 52-week period
preceding his injury. The claimant's employer appealed, arguing
that the Commission should have used 52 weeks in its division,
because the use of 20 weeks resulted in a windfall. Illinois-Iowa
Blacktop, 180 Ill. App. 3d at 890.
The Illinois-Iowa Blacktop court thoroughly reviewed the
legislative history of the current section 10. The court explained
that the re-designing of section 10 resulted in both benefits and
disadvantages for laborers. Then, the court determined that the
"slight windfall" that results by a claimant's compensation
benefits totaling more than his actual total income does not make
the statute ambiguous or illegitimate. Illinois-Iowa Blacktop, 180
Ill. App. 3d at 893; see also Ricketts v. Industrial Comm'n, 251
Ill. App. 3d 809, 811 (1993) (potential windfall to an employee is
only a viable, not a determinative, consideration when calculating
an average weekly wage); Peoria Roofing & Sheet Metal Co. v.
Industrial Comm'n, 181 Ill. App. 3d 616, 620 (1989) (fact that a
windfall may develop is not "fatal" to Commission's wage
calculation). Indeed, the Illinois-Iowa Blacktop court noted that,
even under the old version of section 10, "the principle against
windfalls was not absolute." Illinois-Iowa Blacktop, 180 Ill. App.
3d at 893. Consequently, the court affirmed the Commission's use
of 20 weeks in the calculation of the claimant's average weekly
wage. Illinois-Iowa Blacktop, 180 Ill. App. 3d at 894.
Similarly, in this case, Botta's possibly receiving a windfall
is not fatal to the Commission's wage determination. Moreover, we
note that any windfall Botta is to receive is minor to nonexistent.
Certainly, D.J. Masonry's argument that Botta will receive $6,000
more a year due to the Commission's average weekly wage figure is
misleading. In its calculation, D.J. Masonry multiplies $575.90 by
52 weeks to obtain its $29,946.80 figure. In actuality, however,
Botta only receives two-thirds of the average weekly wage amount
for TTD benefits, or $383.93. See 820 ILCS 305/10. This figure's
being multiplied by 52 weeks yields a result of $19,964.36, which
is $3,532.52 lower than Botta's earnings the year preceding his
injury. Consequently, unlike the claimant in Illinois-Iowa
Blacktop, Botta is not obtaining a windfall. See Illinois-Iowa
Blacktop, 180 Ill. App. 3d at 886, 893 (amount claimant received
weekly multiplied by 52 weeks resulted in windfall). Instead,
Botta will earn approximately what he earned in the year preceding
his injury, and the Commission's wage determination reasonably
represents Botta's earning potential. See Hines Lumber Co. v.
Industrial Comm'n, 215 Ill. App. 3d 659 (1990); 2 A. Larson,
Workmen's Compensation Law 60.21(c), at 10-667 (1996) (purpose of
wage calculation is to make a realistic judgment on what claimant's
future loss will be).
IV.
Nonpublishable material under Supreme Court Rule 23 omitted.
For the foregoing reasons, the judgment of the circuit court
of Cook County is affirmed in part and reversed in part.
Affirmed in part, reversed in part.
McCULLOUGH, P.J., and RAKOWSKI, HOLDRIDGE, and RARICK, JJ.,
concurring.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.