Ogle v. Industrial Comm'n

                              No. 1-95-0441WC
                    consolidated with No. 1-95-0442WC 
_________________________________________________________________
                                  IN THE
                        APPELLATE COURT OF ILLINOIS
                               FIRST DISTRICT
                      INDUSTRIAL COMMISSION DIVISION

GLEN OGLE,                         )    Appeal from the Circuit  
                                   )    Court of Cook 
     Appellee/Appellant,           )    County, Illinois
                                   )    
     v.                            )    No. 91L50552
                                   )
THE INDUSTRIAL COMMISSION et al.,  )    Honorable
(Welded Tube of America,           )    Joanne L. Lanigan
     Appellant/Appellee.)          )    Judge, Presiding
_________________________________________________________________

JUSTICE HOLDRIDGE delivered the opinion of the court:
_________________________________________________________________

     Claimant, Glen Ogle, filed a claim pursuant to the Illinois
Workers' Compensation Act (Act) (Ill. Rev. Stat. 1979,  ch. 48, et
seq.) for injuries sustained on October 27, 1979, while employed by
Welded Tube of America (employer).  The arbitrator found claimant's
accident was causally connected to his present condition of ill-
being, and awarded him, inter alia, $252.49 per week in permanent
total disability (PTD) benefits for life, based upon an average
weekly wage (AWW) of $378.73.  The arbitrator also awarded claimant
$1054.20 in moving expenses, which were characterized as medical
treatment.
     The Commission, with one dissent, determined that claimant's
AWW was $253.04, and consequently reduced his PTD benefits to
$168.69 per week.  In reaching this decision, the Commission
determined that fringe benefits and overtime should be excluded in
calculating claimant's AWW.  The Commission also denied claimant
moving expenses as medical treatment. 
     The circuit court confirmed the Commission's exclusion of
fringe benefits from the AWW calculation, however, it found that
the Commission erred as a matter of law by excluding overtime hours
from its calculation of AWW.  The court ordered claimant's AWW
increased to $313.93.  The court also confirmed the Commission's
denial of moving expenses as medical treatment.
     The employer appeals from the circuit court's reversal of the
Commission's exclusion of overtime hours from its AWW calculation.
The claimant cross-appeals from the circuit court's affirmance of
the Commission's exclusion of fringe benefits from its AWW
calculation, and the Commission's denial of moving expenses as
medical treatment.  The appeals were consolidated, and we will
address all issues raised therein.
     Claimant first contends that the value of fringe benefits, i.
e. pension contributions, etc., should have been included in his
AWW calculation.  Claimant failed, however, to offer any evidence
to establish that fringe benefits were paid to him by the employer
based upon the number of hours commonly regarded as a day's work
for his employment.  In fact, these fringe benefits were paid not
to claimant, but rather, paid directly to the union.  Section 10(g)
of the Act makes no reference to the inclusion of fringe benefits
in determining an employee's compensation of "salary, wages or
earnings."  The language of a statute must be given its plain and
ordinary meaning, and if legislative intent may be ascertained from
the language itself, it must prevail.  Illinois Power Co. v. Mahin,
72 Ill. 2d 189 (1978).  It is not the function of this court to
include the value of fringe benefits in the definition of earnings
where the legislature has omitted such value from section 10(g). 
Therefore, we find that the Commission did not err in its exclusion
of fringe benefits from the AWW calculation.
     Claimant next contends that the Commission erred in excluding
the hours compensated at overtime rate from his AWW calculation. 
Parties' rights under the Act are governed by the law in effect at
the time of the injury.  Sroka v. Industrial Comm'n, 412 Ill. 126, 131 (1952).  It is undisputed that at the time of claimant's
injury, sections 10(a) & (g) of the Act (Ill. Rev. Stat. 1979, ch.
48, par. 138.10(a)(g)), which defines AWW by salary, wages or
earnings, were in effect, and stated:
     "(a) The compensation shall be computed on the basis of the
     annual earning which the injured person received as salary,
     wages or earnings if in the employment of the same employer
     continuously during the year next preceding the injury.
                                    ***
     (g) Earning, for the purpose of this section, shall be based
     on the earnings for the number of hours commonly regarded as
     a day's work for that employment, and shall exclude overtime
     earnings." (Emphasis added.)
     Section 10(g) establishes that earnings are based upon the
earnings for the number of hours commonly regarded as a day's work
for that employment.  We agree that overtime earnings are
specifically excluded by the Act, (Kidd v. Industrial Comm'n, 85 Ill. 2d 534, 537-8 (1981)), however, we note that the Act makes no
mention of precluding compensation for overtime hours at straight
time.
     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.  Peoria Roofing & Sheet
Metal v. Industrial Comm'n, 181 Ill. App. 3d 616, 626 (1989).  In
order for a finding to be contrary to the manifest weight of the
evidence, an opposite conclusion must be clearly apparent.  Mendota
Township High School v. Industrial Comm'n, 243 Ill. App. 3d 834,
836-7 (1993).
     In the instant case, sufficient evidence exists to establish
that claimant's normal work week was, on average, 48 hours. 
Claimant testified that he worked 48 hours, more or less, per week
in the year preceding his injury.  In addition, pursuant to the
union contract, overtime was mandatory.  Only after claimant has
worked 48 hours or more is he neither required to work further
overtime, nor disciplined for refusing overtime.  Further, claimant
could work less than 48 hours without being disciplined only at the
employer's discretion.  A wage statement indicates that claimant
worked overtime 42 out of 52 weeks, and it identified the "number
of hours employee scheduled to work per week" is 48.  Under these
circumstances, we do not believe that an eight hour work day was
commonly regarded as a day's work for claimant's employment.
     We find further that the Commission incorrectly interpreted
section 13.1 of article 13 of the union contract, as defining
normal working hours as 8 hours per day, 40 hours per week.  This
section stated:
     "[t]he normal hours for regular production work shall be eight
     (8) hours per day, exclusive of lunch periods, and forty (40)
     hours per week, Monday through Friday. This Article is
     intended only to provide a basis for the calculation of
     overtime and is not to be construed as a guarantee of hours
     worked per day or per week. The Company retains the right to
     require employees to work in excess of such daily and weekly
     periods upon reasonable notice ***."  (Emphasis added.)
      Because the union contract stated that 40 hours per week was
intended only as "a basis for the calculation of overtime," we hold
that the parties did not agree that an 8 hour work day, 40 hour
work week, was "normal" or was "commonly regarded as a day's work
for that employment."
     The fact that it was mandatory for claimant to work up to
eight hours of overtime, coupled with the contents of the wage
statement, leads us to conclude that claimant's work week was 48
hours per week.  Therefore, we find that the Commission's decision
to the contrary was against the manifest weight of the evidence. 
We hold, however, that overtime hours should be included in the AWW
calculation at straight time, so as not to reflect overtime
earnings.
     Claimant lastly contends that the Commission erred in denying
him moving expenses as medical treatment.  An employer may be
ordered to pay for treatment which is reasonably required to cure
or relieve from the effects of the accidental injury.  Quality Wood
Products v. Industrial Comm'n, 97 Ill. 2d 417, 423 (1983).  What is
reasonable is a question of fact to be determined on a case by case
basis.  University of Illinois v. Industrial Comm'n, 232 Ill. App.
3d 154, 164 (1992).
     Claimant testified that due to the ice and snow of Illinois
winters, he not only had difficulty getting to his doctors, but the
cold intensified his pain.  Dr. Wygant recommended that claimant
"move to a more temperate climate, such as that found in the State
of Tennessee, for medical reasons."  Considering Tennessee winters
also include cold temperatures, ice, and snow, and no evidence was
introduced to establish that it has more temperate weather
conditions than Illinois, it seems to be contrary to common sense
that Dr. Wygant would recommend claimant move to a State that
includes the same climatic conditions that allegedly greatly
aggravate his disability.  Under these circumstances, the
Commission did not err in finding that the move was not medical
treatment that would reasonably relieve claimant from the effects
of his injury.
     Based upon the foregoing, we affirm the order of the circuit
court of Cook County.  The employer's appeal from the circuit
court's reversal of the Commission's exclusion of overtime hours
from its AWW calculation is denied.  The claimant's cross-appeal
from the circuit court's affirmance of the Commission's exclusion
of fringe benefits from its AWW calculation, and the Commission's
denial of moving expenses as medical treatment is also denied.
     Affirmed.
     McCULLOUGH, P.J., and RAKOWSKI, COLWELL, and RARICK, JJ.,
concur.