Illinois Official Reports

Appellate Court

Mansfield v. Illinois Workers’ Compensation Comm’n, 2013 IL App (2d) 120909WC

Appellate Court 

Caption

CINDY MANSFIELD, Appellant and Cross-Appellee, v. THE 

ILLINOIS WORKERS’ COMPENSATION COMMISSION et al.

(Naperville Park District, Appellee and Cross-Appellant).

District & No. Second District

Docket No. 2-12-0909WC

Filed November 21, 2013

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

The Workers’ Compensation Commission’s award of 10% loss of the 

person as a whole for the back injury claimant suffered in a 

work-related fall was not against the manifest weight of the evidence, 

but the portion of the judgment modifying the calculation of 

claimant’s average weekly wage to include her income from teaching 

piano lessons from her home was reversed and the cause was 

remanded for redetermination of the average weekly wage and 

benefits to which claimant was entitled.

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 11-MR-1459; 

the Hon. Terence M. Sheen, Judge, presiding.

Judgment Affirmed in part and reversed in part; cause remanded with directions.
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Counsel on

Appeal

Anthony L. Russo, Sr., of Russo & Russo, Ltd., of Wheaton, for 

appellant.

Jeffrey B. Huebsch, of Power & Cronin, Ltd., of Oak Brook, for 

appellee.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Holdridge and Justices Hoffman, Hudson, and 

Stewart concurred in the judgment and opinion.

OPINION

¶ 1 On March 19, 2004, claimant, Cindy Mansfield, filed two applications for adjustment of 

claim pursuant to the Workers’ Compensation Act (Act) (820 ILCS 305/1 through 30 (West 

2002)), seeking benefits from the employer, Naperville Park District, for injuries suffered to 

her low back, legs, neck, and arms on July 23, 2003 (No. 04WC13562), and on September 9, 

2003 (No. 04WC13563).

¶ 2 Following a consolidated hearing, an arbitrator issued a separate decision for each case. 

Regarding the injury suffered on July 23, 2003, the arbitrator found that claimant proved she 

sustained injuries arising out of and in the course of her employment with the employer on that 

date. Specifically, the arbitrator found claimant “suffered a lumbar strain as a result of the 

initial injury on July 23, 2003, and that a causal relationship existed between said work injury 

and her condition of ill-being up through the date of the second injury on September 9, 2003, 

the subject of claim 04 WC 13563.” However, the arbitrator found claimant failed to prove she 

was entitled to temporary total disability (TTD) benefits and medical expenses from July 23, 

2003, the date of the first accident, to September 9, 2003, the date of the second accident. The 

arbitrator stated his intent to address the issue of the nature and extent of claimant’s injuries in 

his order in case No. 04WC13563. Neither party sought review of the arbitrator’s decision (No. 

04WC13562) before the Commission.

¶ 3 Regarding the injury suffered on September 9, 2003 (No. 04WC13563), the arbitrator 

found claimant proved she sustained injuries arising out of and in the course of her 

employment with the employer on September 9, 2003, and “a causal relationship existed 

between the accident on September 9, 2003 and Petitioner’s current condition of ill-being, 

including the need for the surgery she eventually underwent on December 13, 2004.” The 

arbitrator determined claimant’s average weekly wage was $437.50, and awarded claimant 

TTD benefits in the amount of $291.67 per week, from September 9, 2003, through July 5, 
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2005; permanent partial disability (PPD) benefits in the amount of $262.50 per week for 125 

weeks, representing 25% loss of her person as a whole; and medical expenses in the amount of 

$108,554.15.

¶ 4 The employer filed a petition for review of the arbitrator’s decision (case No. 04WC13563) 

before the Illinois Workers’ Compensation Commission (Commission). On review, the 

Commission modified the arbitrator’s decision finding claimant failed to prove a causal 

relationship between her injury on September 9, 2003, and her condition of ill-being after April 

30, 2004. The Commission awarded claimant TTD benefits in the amount of $291.67 per 

week, from September 11, 2003, through April 12, 2004; PPD benefits in the amount of 

$262.50 per week for 50 weeks, representing 10% loss of her person as a whole; and medical 

expenses in the amount of $5,416.54. The Commission otherwise affirmed and adopted the 

arbitrator’s decision.

¶ 5 Thereafter, both claimant and the employer filed petitions seeking judicial review in the 

circuit court of Du Page County. The circuit court modified the Commission’s decision, 

finding claimant’s average weekly wage was $517.56 and directing the Commission “to 

recalculate the average weekly wage and the benefits allowed in conformity with this 

Opinion.” The court otherwise confirmed the Commission=s decision.

¶ 6 Claimant appeals, arguing the Commission’s findings regarding causation, average weekly 

wage, TTD benefits, PPD benefits, and medical expenses are against the manifest weight of the 

evidence. The employer cross-appeals, arguing the Commission incorrectly calculated 

claimant’s average weekly wage as including profits from claimant’s self-employment 

providing piano lessons in her home.

¶ 7 I. BACKGROUND

¶ 8 The following factual recitation is taken from the evidence presented at the consolidated 

arbitration hearing.

¶ 9 The 47-year-old claimant testified that she began work teaching various preschool classes 

for the employer in approximately 1999. Claimant worked between 12 and 20 hours each week 

depending on class offerings and student enrollment. Claimant also taught piano in her home. 

She worked approximately the same number of hours from home as for the employer.

¶ 10 On July 23, 2003, claimant assisted two-year-olds with a program for their parents. Near 

the end of the program, claimant felt a child standing immediately behind her. In an effort to 

avoid falling on the child, claimant leaped back and fell on her low back, bottom, and arm. As 

a result, claimant experienced soreness in her back, arms, and shoulders. According to a wage 

statement prepared by the employer, claimant continued to work, reporting 9.75 hours worked 

for the pay period including July 26, 2003, through August 8, 2003. Claimant testified she did 

not seek immediate treatment because she thought she had bruised something and it would 

heal.

¶ 11 Claimant testified she had never injured her back prior to July 23, 2003, and did not have 

chronic problems with her back. Claimant identified her family doctor as Dr. Brian O’Leary, 

an internist. Claimant first treated with Dr. O’Leary in approximately 1994. Dr. O’Leary’s 
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treatment notes on April 18, 1994, reference claimant’s 15-year history of muscle pain in the 

low back, and at times, in the neck and upper back. The treatment notes from 1994 through 

approximately 2008 make multiple references to claimant’s fibromyalgia.

¶ 12 Claimant remained sore and at the direction of the employer sought treatment on August 7, 

2003, with Dr. Vimal Patel, a doctor of osteopathy at Edward Corporate Health. Dr. Patel 

noted (1) tenderness bilaterally over the SI joint and (2) the lumbar spine X-rays were normal.

Dr. Patel diagnosed lumbar strain and bilateral SI strain. He prescribed naproxen and a course 

of physical therapy. Dr. Patel’s medical notes state that claimant was off of school and, thus, 

did not require specific work restrictions. A physical therapy evaluation prepared on August 8, 

2003, states claimant suffered from chronic right knee pain, fibromyalgia, and hypertension, 

and had multiple abdominal surgeries. Claimant returned to Dr. Patel on August 21, 2003. She 

reported attending four physical therapy sessions and that it had helped significantly. Dr. 

Patel’s treatment note states that claimant “for the most part *** feels better.” Dr. Patel 

recommended one more week of physical therapy and no restrictions. Claimant was to resume 

work in September 2003, with the fall programming session. Claimant last attended physical 

therapy through Edward Hospital on September 4, 2003. A physical therapy summary noted 

claimant had attended four of nine visits.

¶ 13 The employer began new class offerings on September 8, 2003, and claimant resumed 

teaching for the employer. On September 9, 2003, claimant reached for a toddler who was 

running toward a classroom door and “fell into the door and made [her] back worse.” Claimant 

sought treatment from chiropractor Dr. Brad Pins on September 11, 2003. Claimant gave a 

history of the work accident on July 23, 2003. Dr. Pins’ treatment notes reference a 

“continuing trauma” following the work accident on July 23, 2003, and include a reference to 

the work accident on September 9, 2003. Dr. Pins recommended “extreme limited duty” on 

September 11, 2003, and removed claimant from work on February 12, 2004. Dr. Pins treated 

claimant two or three times a week until April 12, 2004. Claimant experienced pain throughout 

her treatment with Dr. Pins and reported minimal improvement.

¶ 14 Claimant underwent a magnetic resonance imaging (MRI) of her lower back on September 

16, 2003, read by chiropractic radiologist Dr. John A. Aikenhead. Dr. Aikenhead’s impression 

was L5-S1 left lateral herniation compromising the canal and the foramen and small Modic 

changes at the adjacent endplates.

¶ 15 On September 22, 2003, claimant completed an initial patient history with the Synergy 

Institute, a physical therapy provider. Claimant identified fibromyalgia as a previous injury. 

Further, claimant wrote she was unable to work for the employer because she could not pick up 

the children but she was teaching piano at home, although in pain. Claimant identified a 

herniated disc as her major complaint and reported losing work days since her July 2003 

accident.

¶ 16 On October 28, 2003, claimant was examined by Dr. David Spencer, at the request of the 

employer. Dr. Spencer is an orthopedic surgeon with a spine surgery practice at Lutheran 

General Hospital, Park Ridge, Illinois. According to his treatment notes, claimant reported 

work accidents on July 23, 2003, and September 9, 2003. Claimant did not seek immediate 

treatment following the July 2003 accident because she had a history of back pain and 
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fibromyalgia and based on that history, believed she would get better. In a pain diagram, 

claimant noted occasional right leg “pins and needles,” constant stabbing pain across the low 

back, and constant low back aching on the left side. The September 16, 2003, MRI showed 

degenerative changes and a small disc herniation on the left at L5-S1 without neurologic 

compromise. Dr. Spencer recommended claimant remain off work and prescribed four 

additional weeks of physical therapy. Dr. Spencer anticipated claimant would return to full 

activities without limitations following therapy.

¶ 17 Dr. Spencer’s medical notes dated November 25, 2003, state claimant was improving and 

should continue physical therapy and remain off work until January 1, 2004. In a physical 

therapy reevaluation dated December 28, 2003, claimant reported she felt better overall but 

had regressed since her last session because she had cared for her sick children at home and 

stood in heels while attending a Christmas party. Dr. Spencer’s medical notes dated January 8, 

2004, state claimant was improving and would participate in a work-hardening program for 

three to four weeks, and then return to full-duty work. Claimant did not return to work.

¶ 18 At his deposition, Dr. Spencer opined that claimant “had a chronic pain syndrome and that 

she had suffered a back sprain or strain when she had misadventures at work and aggravated 

her back pain, and then it had largely resolved and that she would be left with her chronic 

fibromyalgia pain.” Dr. Spencer characterized as “rather unbelievable” and “not physiologic”

a report by claimant that sometime after she last treated with Dr. Spencer on January 8, 2004, 

she fell 6 to 8 times over the course of approximately 10 days due to a sharp pain in her back 

and leg. Claimant attributed her pain to a herniated disc. Dr. Spencer knew of no individual 

who “fell down uncontrollably because they had a disc herniation.” Further, claimant=s 

complaints were not consistent with a left-sided disc herniation. Dr. Spencer stated that the 

surgery claimant ultimately underwent in December 2004 was not related to the July 2003 and 

September 2003 work accidents.

¶ 19 Dr. O’Leary referred claimant for treatment with board-certified neurosurgeon Dr. Michael 

Rabin. In a report dated December 5, 2003, Dr. Rabin found claimant=s September 2003 MRI 

“largely unremarkable.” He noted some degeneration but no focal areas of compression and no 

disc herniations. Dr. O’Leary recommended claimant resume chiropractic manipulations 

“since that appeared to be leading to improvement.”

¶ 20 Claimant testified she worked light duty for the employer from April 13, 2004, through 

November 12, 2004.

¶ 21 Dr. Pins referred claimant for treatment with Dr. Steven Mather, an orthopedic surgeon. In 

treatment notes dated April 15, 2004, Dr. Mather noted his review of claimant’s September 

2003 MRI, showing “a markedly degenerative disc at L5/S1 with a small left-sided herniation 

present.” At the direction of Dr. Mather, claimant underwent a second MRI on April 22, 2004, 

which confirmed degenerative disc disease at L5-S1, with a circumferential disc bulge and 

moderate bilateral neural foraminal stenosis.

¶ 22 On April 30, 2004, claimant was examined by Dr. Andrew Zelby at the request of the 

employer. Dr. Zelby testified that he is a board-certified neurologist and reviewed the cervical, 

thoracic, and lumbar spine X-rays, and the MRI scans. Dr. Zelby found that claimant had 

degenerative disc disease at L5-S1. He did not agree with the chiropractic radiologist’s 
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interpretation of the 2003 MRI scan. According to Dr. Zelby, the 2003 MRI scan did not show 

a herniated disc. He opined that based upon claimant’s medical records, claimant was 

symptomatic before her July 2003 injury and the accident did not accelerate her degenerative 

disc disease beyond its normal progression. Upon physical examination, Dr. Zelby found many 

aspects of the exam were consistent with symptom amplification. He stated that claimant had 

likely reached maximum medical improvement three to four months following the July 2003 

accident.

¶ 23 Claimant next sought treatment with Dr. Aruna Ganju, a neurosurgeon affiliated with 

Northwestern Memorial Hospital. In a treatment note dated June 10, 2004, Dr. Ganju 

diagnosed claimant with lumbar spondylosis at L5-S1 and recommended an epidural steroid 

injection and aquatic therapy. In treatment notes dated July 22, 2004, Dr. Ganju diagnosed 

claimant with degenerative disc disease, severe at L5-S1. On August 12, 2004, claimant 

reported to Dr. Ganju that she had been undergoing aquatic therapy and had three epidural 

steroid injections. Claimant reported her pain level as not tolerable. On September 23, 2004, 

claimant underwent a discogram and postdiscogram computed tomography (CT) scan of the 

lumbar spine, which revealed moderate to severe disc degeneration at the L5-S1 level.

¶ 24 Dr. Ganju referred claimant to Dr. John Liu, a neurosurgeon also affiliated with 

Northwestern Memorial Hospital who specializes in artificial disc replacement. On November 

4, 2004, Dr. Liu noted that claimant had undergone “extensive conservative treatments” for 

more than a year and continued to experience severe low back pain. Dr. Liu recommended 

claimant undergo surgery. Claimant underwent an anterior discectomy and fusion of the L5-S1 

disc space on December 13, 2004, and was returned to full-duty work on July 7, 2005. In his 

evidence deposition on November 6, 2007, Dr. Liu opined that claimant’s low back pain 

worsened after her July 2003 accident and, thus, contributed to claimant’s current state of 

ill-being. Dr. Liu stated he did not have any information regarding the second accident on 

September 9, 2003.

¶ 25 Following the consolidated hearing, the arbitrator found claimant proved her current 

condition of ill-being was causally related to her work accidents on July 23, 2003, and 

September 9, 2003. Specifically, the arbitrator found the accidents aggravated claimant’s 

preexisting degenerative condition necessitating surgery on December 13, 2004. The arbitrator 

determined claimant’s average weekly wage was $437.50, and awarded claimant benefits 

through July 5, 2005. The employer sought review only of the arbitrator’s decision regarding 

the injury suffered on September 9, 2003. The Commission modified the arbitrator’s decision, 

relying on the opinions of Dr. Spencer and Dr. Zelby that claimant had suffered a temporary 

aggravation of a chronic condition and was at maximum medical improvement on April 30, 

2004. The Commission awarded claimant TTD benefits through April 12, 2004, “the period 

she was authorized off work by chiropractor Dr. Pins,” and found claimant permanently 

disabled to the extent of 10% of the person as a whole. Thereafter, both claimant and the 

employer filed petitions seeking judicial review in the circuit court of Du Page County. The 

circuit court modified the Commission’s decision, calculating claimant’s average weekly wage 

as $517.56 and directing the Commission “to recalculate the average weekly wage and the 

benefits allowed in conformity with this Opinion.” The court otherwise confirmed the 
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Commission’s decision and this appeal and cross-appeal followed.

¶ 26 II. ANALYSIS

¶ 27 On appeal, claimant argues the Commission erred in finding her condition of ill-being after 

April 30, 2004, was not causally related to her September 9, 2003, workplace accident. In a 

workers’ compensation case, the claimant has the burden of proving, by a preponderance of the 

evidence, some causal relation between her employment and her injury. Caterpillar Tractor 

Co. v. Industrial Comm’n, 129 Ill. 2d 52, 63, 541 N.E.2d 665, 669 (1989). Compensation may 

be awarded under the Act for a claimant’s condition of ill-being even though the conditions of 

his or her employment do not constitute the sole, or even the principal, cause of injury. Brady 

v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 548, 578 N.E.2d 921, 924 (1991); 

Fierke v. Industrial Comm’n, 309 Ill. App. 3d 1037, 1040, 723 N.E.2d 846, 849 (2000). In 

order for an injury to constitute an accidental injury within the meaning of the Act, the 

claimant need only show that some act or phase of the employment was a causative factor of 

the resulting injury. Fierke, 309 Ill. App. 3d at 1040, 723 N.E.2d at 849. The relevant question 

is whether the evidence supports an inference that the accidental injury aggravated the 

condition or accelerated the processes that led to the claimant’s current condition of ill-being. 

Mason & Dixon Lines, Inc. v. Industrial Comm’n, 99 Ill. 2d 174, 181-82, 457 N.E.2d 1222, 

1226 (1983); Freeman United Coal Mining Co. v. Industrial Comm’n, 318 Ill. App. 3d 170, 

173-74, 741 N.E.2d 1144, 1147 (2001).

¶ 28 Whether a causal relationship exists between a claimant’s employment and his injury is a 

question of fact to be resolved by the Commission. Certi-Serve, Inc. v. Industrial Comm’n, 101 

Ill. 2d 236, 244, 461 N.E.2d 954, 958 (1984). The Commission’s determination on a question 

of fact will not be disturbed on review unless it is against the manifest weight of the evidence. 

Orsini v. Industrial Comm’n, 117 Ill. 2d 38, 44, 509 N.E.2d 1005, 1008 (1987). For a finding of 

fact to be contrary to the manifest weight of the evidence, an opposite conclusion must be 

clearly apparent. Caterpillar, Inc. v. Industrial Comm’n, 228 Ill. App. 3d 288, 291, 591 N.E.2d 

894, 896 (1992).

¶ 29 In support of her assertion of a causal relationship between her September 9, 2003, 

workplace accident and condition of ill-being after April 30, 2004, claimant contends a 

medical journal article and medical treatises support a claim that Modic changes in the spine 

are indicative of an acute injury. At his deposition, Dr. Liu read from the September 2003 MRI 

report prepared by Dr. Aikenhead. Dr. Aikenhead noted “mild marrow edematous changes” at 

L5-S1. Dr. Liu volunteered that “mild marrow edematous changes” are “the swelling within 

the bone marrow” and “[t]hat’s what’s called a [M]odic change.” Dr. Liu did not comment 

further regarding Modic changes.

¶ 30 In this case, the Commission relied on the opinions of Drs. Spencer and Zelby to find that 

claimant’s condition of ill-being after April 30, 2004, was not causally related to her 

employment on September 9, 2003. Dr. Spencer testified that claimant reported to him a 

history of back pain and fibromyalgia. Dr. Spencer opined that claimant “had a chronic pain 

syndrome and that she had suffered a back sprain or strain when she had misadventures at work 

and aggravated her back pain, and then it had largely resolved and that she would be left with 
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her chronic fibromyalgia pain.” Dr. Spencer stated that claimant’s condition of ill-being after 

April 30, 2004, was not causally related to her September 2003 work accident. Dr. Zelby 

examined claimant on April 30, 2004. He reviewed claimant’s cervical, thoracic, and lumbar 

spine X-rays, and the MRI scans. He opined that claimant’s condition on April 30, 2004, was 

not related to her September 2003 work accident. Dr. Zelby found claimant had likely reached 

maximum medical improvement three to four months following the July 2003 accident.

¶ 31 Although Dr. Liu opined claimant’s current condition of ill-being was causally related to 

her work accident on July 23, 2003, he did not have any information regarding the second 

accident on September 9, 2003. Claimant offered no medical opinion to support a causation 

finding regarding the work accident on September 9, 2003. Further, despite claimant’s 

testimony that she had never injured her back prior to July 23, 2003, and did not have chronic 

back problems, Dr. O’Leary’s treatment notes reference a 15-year history of low back pain.

¶ 32 In this case, there is sufficient evidence supporting the Commission’s finding that 

claimant’s low back condition after April 30, 2004, was not causally related to the September 

9, 2003, workplace accident. It is not our function to reweigh the evidence, and based on the 

record, we cannot say that an opposite conclusion is clearly apparent. Accordingly, the 

Commission’s finding that claimant’s condition of ill-being after April 30, 2004, was not 

causally related to her September 9, 2003, workplace accident was not against the manifest 

weight of the evidence.

¶ 33 Claimant also argues that the award of TTD benefits and medical expenses was against the 

manifest weight of the evidence. However, since these arguments are based upon the premise 

that the Commission’s causation finding was erroneous, these contentions can be rejected 

without further analysis. Tower Automotive v. Industrial Workers’ Compensation Comm’n, 

407 Ill. App. 3d 427, 436, 943 N.E.2d 153 (2011).

¶ 34 Claimant next argues the Commission’s finding with regard to permanency is against the 

manifest weight of the evidence. We disagree.

¶ 35 A determination of the nature and extent of a claimant’s permanent disability is a question 

of fact to be resolved by the Commission, and its finding in this regard should be given 

substantial deference and will not be disturbed on appeal unless it is against the manifest 

weight of the evidence. Jewel Food Cos. v. Industrial Comm’n, 256 Ill. App. 3d 525, 534, 630 

N.E.2d 865 (1993). However, a claimant is entitled to a disability award only for the nature and 

extent of his disability that was caused by employment exposure. Fitts v. Industrial Comm’n, 

172 Ill. 2d 303, 310, 666 N.E.2d 4, 7 (1996).

¶ 36 In this case, the arbitrator awarded claimant permanent disability of 25% after finding “a 

causal relationship existed between the accident on September 9, 2003 and Petitioner’s current 

condition of ill-being, including the need for the surgery she eventually underwent on 

December 13, 2004.” The Commission modified the arbitrator’s decision, finding no causal 

connection between claimant’s work accident on September 9, 2003, and condition of ill-being 

after April 30, 2004. Although finding no causal connection after April 2004, the Commission 

still awarded claimant permanent disability of 10%, stating:
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“In companion case 04 WC 13562, the Arbitrator chose to decide the issue of 

nature and extent of permanent disability with this case. Case 04 WC 13562 was not 

reviewed and became final. The Commission modifies the Arbitrator’s Decision 

finding that Petitioner is permanently disabled to the extent of 10% of the person as a 

whole.”

¶ 37 In case No. 04WC13562, the arbitrator found claimant “suffered a lumbar strain as a result 

of the initial injury on July 23, 2003, and that a causal relationship existed between said work 

injury and her condition of ill-being up through the date of the second injury on September 9, 

2003, the subject of claim 04 WC 13563.” As the Commission stated, neither party sought 

review of the arbitrator’s decision in case No. 04WC13562, and it became final. Given the 

arbitrator’s findings in case No. 04WC13562, the Commission’s permanency award of 10% 

loss of the person as a whole was not against the manifest weight of the evidence.

¶ 38 Claimant next argues the Commission incorrectly calculated her average weekly wage. 

Claimant argues that her actual earnings should be construed to include the gross profit of her 

business, SCATHOME. On cross-appeal, the employer argues the Commission incorrectly 

calculated claimant’s average weekly wage as including profits from claimant’s 

self-employment, providing piano lessons in her home.

¶ 39 Section 10 of the Act sets forth the method of calculating compensation as follows:

“The compensation shall be computed on the basis of the ‘Average weekly wage’

which shall mean the actual earnings of the employee in the employment in which he 

was working at the time of the injury during the period of 52 weeks ending with the last 

day of the employee’s last full pay period immediately preceding the date of injury, 

illness or disablement excluding overtime, and bonus divided by 52; but if the injured 

employee lost 5 or more calendar days during such period, whether or not in the same 

week, then the earnings for the remainder of such 52 weeks shall be divided by the 

number of weeks and parts thereof remaining after the time so lost has been deducted. 

Where the employment prior to the injury extended over a period of less than 52 weeks, 

the method of dividing the earnings during that period by the number of weeks and 

parts thereof during which the employee actually earned wages shall be followed. 

Where by reason of the shortness of the time during which the employee has been in the 

employment of his employer or of the casual nature or terms of the employment, it is 

impractical to compute the average weekly wages as above defined, regard shall be had 

to the average weekly amount which during the 52 weeks previous to the injury, illness 

or disablement was being or would have been earned by a person in the same grade 

employed at the same work for each of such 52 weeks for the same number of hours per 

week by the same employer. *** When the employee is working concurrently with two 

or more employers and the respondent employer has knowledge of such employment 

prior to the injury, his wages from all such employers shall be considered as if earned 

from the employer liable for compensation.” 820 ILCS 305/10 (West 2002).

¶ 40 The employer contends claimant’s business income should not be included in the 

calculation of the average weekly wage because it does not represent “wages” earned while 
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working for an “employer.” We agree. We find the very similar case of Paoletti v. Industrial 

Comm’n, 279 Ill. App. 3d 988, 996, 665 N.E.2d 507, 512 (1996), to be dispositive.

¶ 41 In Paoletti, the claimant sustained an injury to his back while working as a refuse 

scavenger for the employer. Paoletti, 279 Ill. App. 3d at 991, 665 N.E.2d at 509. The claimant 

also owned a landscaping business operated as a subchapter S corporation for which he 

performed both administrative work and manual labor. Paoletti, 279 Ill. App. 3d at 995-96, 

665 N.E.2d at 511-12. As in this case, the claimant’s tax returns showed the business did not 

pay him any wage or salary, but he did receive the net profits. Paoletti, 279 Ill. App. 3d at 996, 

665 N.E.2d at 512. This court noted that “[t]he question of whether net profits should be 

considered in calculating a claimant’s average weekly wage is of first impression in Illinois.”

Paoletti, 279 Ill. App. 3d at 996, 665 N.E.2d at 512. In holding that the claimant’s business 

profits should not be included in the calculation of his average weekly wage, this court stated 

that it “would be legislating from the bench if [it] were to hold that ‘actual earnings’ should be 

construed to include net profit.” Paoletti, 279 Ill. App. 3d at 996, 665 N.E.2d at 512.

¶ 42 Citing to a Tennessee Supreme Court decision, the Paoletti court went on to suggest an 

exception might exist such that business income could be included in the calculation of 

average weekly wage where evidence was presented of the wage of another employee 

performing similar duties as claimant. Paoletti, 279 Ill. App. 3d at 996, 665 N.E.2d at 512 

(citing 2 Arthur Larson, Law of Workmen’s Compensation § 60.12(e), at 10-684 through 

10-685 (1992), and P&L Construction Co. v. Lankford, 559 S.W.2d 793, 795 (Tenn. 1978)). In 

Lankford, the claimant sought benefits under the Tennessee workmen’s compensation law 

from his employer, a closely held corporation of which the claimant and his wife held a 50% 

interest. Lankford, 559 S.W.2d at 794. The claimant, however, received no direct 

compensation for his labor. The Tennessee Supreme Court rejected the trial court’s holding 

that Lankford’s average weekly wage should be based on one-half of the net income of the 

corporation and instead held “[a] better measure of the employee’s earnings would be the 

compensation paid by the same company to another employee performing the same or similar 

duties.” Lankford, 559 S.W.2d at 795.

¶ 43 The Paoletti court stated the claimant’s business income could not be considered as wages 

even under the Lankford analysis “because the claimant did not present evidence of what the 

wage would be of another employee performing similar duties as claimant alleged he 

performed for his landscaping business.” Paoletti, 279 Ill. App. 3d at 997, 665 N.E.2d at 512.

¶ 44 We note the significant differences between Paoletti and Lankford. In Paoletti, as in the 

present case, the issue was whether income from the claimant’s concurrent employment could 

be included in computing average weekly wage. In Lankford, the claimant was not 

concurrently employed and the issue related only to the method to be used in calculating his 

earnings. In fact, Tennessee’s workmen’s compensation law did not allow for the inclusion of 

wages from concurrent employment in calculating average weekly wage. In short, we question 

the relevance of the analysis utilized in Lankford to the issues presented in Paoletti or here.

¶ 45 Therefore, while we adhere to Paoletti’s holding that a claimant’s business income should 

not be included in the calculation of average weekly wage, we decline to further recognize an 

exception to this holding based on Lankford. Accordingly, to the extent the Commission 
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included net profits of claimant’s business in its calculation of her average weekly wage, the 

Commission erred.

¶ 46 We note the Commission affirmed and adopted the arbitrator’s finding that claimant 

earned from the employer an average weekly wage of $247.97 in the year preceding her injury. 

Claimant was paid in 19 biweekly installments during the year preceding her injury and had 

earned $9,422.86. There was no indication in the record regarding how many days she worked 

during those weeks or how many hours per day she worked. The claimant’s average weekly 

wage was properly calculated by dividing $9,422.86 by 38 (19 biweekly payments) for an 

average weekly wage of $247.97. We therefore reverse that portion of the circuit court’s 

judgment modifying the Commission’s determination of the claimant’s average weekly wage, 

set aside the Commission’s decision on the issue of average weekly wage, and remand to the 

Commission for recalculation of the claimant’s average weekly wage and the benefits to which 

she is entitled which are dependent thereon, and for further proceedings.

¶ 47 III. CONCLUSION

¶ 48 We reverse that portion of the circuit court’s judgment modifying the Commission’s 

calculation of claimant’s average weekly wage, vacate the Commission’s calculation of 

claimant’s average weekly wage, and remand the cause to the Commission for determination 

of claimant’s average weekly wage and the weekly benefits to which she is entitled; and we 

affirm the circuit court’s judgment in all other respects.

¶ 49 Affirmed in part and reversed in part; cause remanded with directions.