NO. 4-03-0565WC

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRESIDING JUSTICE McCULLOUGH delivered the opinion of thecourt:

On March 27, 1992, claimant filed an application seekingbenefits for injuries from employer, Freesen, Inc., pursuant to theWorkers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1992)). On June 20, 2001, an arbitrator concluded that claimant had sufferedcompensable injuries on November 21, 1991, arising out of and in thecourse of employment with employer. The arbitrator also found thatclaimant's seizures, which began on December 2, 1996, were notcompensable injuries as they were not causally related to the November21, 1991, accident. The arbitrator awarded claimant 491 weeks oftemporary total disability (TTD) benefits at a rate of $314.92 perweek, permanent total disability (PTD) benefits of $314.92 per week forlife, and "all medical services" except those related to claimant'sseizures.

On June 11, 2002, the Industrial Commission (Commission)reversed the arbitrator's decision on the issue of causation betweenthe accident and claimant's seizures, finding that a causal connectiondid exist. It modified the TTD benefit award to a period of 424

6/7 weeks at a rate of $478.17 per week and the PTD benefit award to arate of $478.17 per week for life. The Commission also modified thenonspecific medical-expense award to $84,646.85 and otherwise affirmedthe arbitrator's decision.

On July 5, 2002, employer filed an action in the circuitcourt of Sangamon County, seeking administrative review of theCommission's decision. On October 9, 2002, the court confirmed thefinding of a causal relationship between the seizures and the accident. However, the court found no evidence to support the Commission'saverage weekly wage calculation, on which the awards of TTD and PTDbenefits were based. The court remanded the case to the Commission toexplain or document its calculation.

On February 4, 2003, the Commission issued a new decision inresponse to the circuit court's order. On February 28, 2003, employeragain filed for administrative review in the circuit court. The courtmodified the Commission's decision to reflect that the TTD and PTDbenefit rates should be $608.41 and $405.81 per week, respectively. Onappeal, employer argues that (1) claimant's seizures were not causallyrelated to the November 21, 1991, accident and (2) the average weeklywage calculations by the Commission and the circuit court wereimproper. On cross-appeal, claimant argues that the court erred incalculating the average weekly wage. We affirm.

Claimant, 42 years old on the date of injury, testified thaton November 21, 1991, he was working for employer as a labor foreman ata work site assisting in the demolition of a bridge across the SangamonRiver. The temperature was about 20 degrees. Claimant climbed up onone girder and walked out on to an X-brace and was straddling the X-brace when the structure fell down to the river with claimant still onit. On impact, claimant felt his right side hit. He was initiallypinned underwater under the girder but was eventually able to freehimself. He rose to the surface but went back underwater two or threemore times. Other workers pulled him from the water.

Claimant was taken to the emergency room of Memorial Hospitalin Springfield. He was diagnosed with a fracture at the L1vertebrae, total loss of use of his bladder and bowels, and impotence. He was later diagnosed with macular degeneration in his right eye andsevere posttraumatic headaches. Three to four days after claimant wasadmitted to the hospital, he began to see bright flashes of light inhis right eye. Prior to the accident, claimant had no eye problemsexcept that he required eyeglasses.

Shortly before August 6, 1996, claimant began having episodesof dizziness. He began to experience a funny taste in his mouth. OnDecember 6, 1996, at about 5 a.m., claimant had a grand mal seizure. An electroencephalogram (EEG), a computed tomography (CT) scan, and amagnetic resonance imaging (MRI) were all negative. In April 1997,claimant had another seizure, which fractured two or three vertebrae. Since that time, claimant has suffered moderate to severe pain betweenhis shoulders in the mid-thoracic area. Following the April 1997seizure, an EEG gave indications of clinical epilepsy. Claimant hasnot worked since the date of the accident.

The parties are aware of the medical evidence presented andit will not be reviewed in detail.

On December 4, 1996, claimant was admitted to the hospitalfor grand mal seizures, which are "very dramatic" seizures. Dr. JosephMaurer stated that "it is quite possibly that he may have had an occulthead injury at the time of his fall that only manifested itself lateron." He was not aware of any indications suggesting claimant had anyseizure disorder, history of infantile seizures, or other head injuriesprior to the accident. From at least August 6, 1996, to the time ofthe seizure, claimant had been having dizzy spells and more frequentheadaches, which were possible signs of a seizure diagnosis. On April13, 1997, claimant was admitted to the hospital because of anotherseizure. Dr. Maurer was aware of no other reason other than the fallfrom the bridge that would have caused the seizures. He concluded thatthe seizures were a result of complications from the bridge accident. Dr. Maurer opined that, as of the date of his testimony, claimant hadreached maximum medical improvement.

The arbitrator found a causal relationship between theaccident and claimant's vision problem, bladder and bowel incontinence,bladder infection, headaches, impotence, and back injuries but not withthe seizures. He awarded benefits as stated.

On June 11, 2002, the Commission found a causal connectionbetween the accident and claimant's condition of ill-being as a resultof his seizure based upon an unbroken chain of events, claimant'smultiple headaches and episodes of dizziness, and Dr. Maurer'stestimony as to causal connection. The Commission modified thearbitrator's decision as stated. The Commission's calculation of theaverage weekly wage included overtime earnings at the straight wagerate because the wage records demonstrated that claimant regularlyworked overtime. It found that in the 52 weeks prior to the accident,claimant worked 34.6 weeks. Citing section 10 of the Act, it arrivedat the average weekly wage as follows: $22,996.59 + $1,820.33(overtime) - $24,816.92/34.6 = $717.25. It concluded that the TTD/PTDrate was $478.17.

On July 5, 2002, employer filed an action for administrativereview in the circuit court, which on October 9, 2002, concluded thatthe Commission's findings as to causal connection were not against themanifest weight of the evidence. As to the average weekly wage, thecourt found no evidence to support the average weekly wage calculationmade by the Commission. It remanded the case to the Commission for thesole purpose of explaining or documenting the basis of suchcalculation.

On February 4, 2003, on remand, the Commission repeated thatclaimant worked 34.6 weeks of the 52-week period preceding the injury. The Commission stated that it included overtime because the wagerecords demonstrated the claimant regularly worked overtime. It foundclaimant worked overtime in 23 of the 34.6 weeks worked. TheCommission derived the average weekly wage as follows: $22,996.43 +$1,820.33 (overtime)= $24,816.76 (total earnings) / 34.6 (weeks) =$717.25 (average weekly wage).

On February 28, 2003, employer again filed for administrativereview of the Commission's decision in the circuit court. The courtnoted that the Commission again failed to sufficiently explain thebasis for its average weekly wage calculation. However, it noted thatthe parties had since stipulated that 38 weeks was the properdenominator to use for the relevant formula. The parties furtheragreed that claimant had earned $23,119.47 in regular wages for the 52weeks prior to the injury and his overtime wages, calculated at thestraight-time rate, were $1,816.51. The court concluded that overtimewas not properly included in the average weekly wage calculation. Accordingly, it divided claimant's regular wages, $23,119.47, by 38weeks to reach an average weekly wage of $608.41. It found that theTTD and PTD benefit rate would be $405.81. It otherwise confirmed thedecision of the Commission. This appeal followed.

Employer first argues that claimant's seizures, which beganon December 2, 1996, were not causally related to the November 21,1991, accident. To recover compensation under the Act, a claimant mustprove by a preponderance of the evidence that he has suffered adisabling injury that arose out of and in the course of his employment. Sisbro, Inc. v. Industrial Comm'n, 207 Ill. 2d 193, 203, 797 N.E.2d665, 671 (2003). Whether a causal connection exists between aclaimant's injury and his employment is uniquely within the province ofthe Commission. Wal-Mart Stores, Inc. v. Industrial Comm'n, 326 Ill.App. 3d 438, 444, 761 N.E.2d 768, 773 (2001). On review, we considerwhether the Commission's decision is against the manifest weight of theevidence. Wal-Mart Stores, Inc., 326 Ill. App. 3d at 444, 761 N.E.2dat 773.

The Commission concluded that a causal connection existedbetween the accident and claimant's seizures based upon Dr. Maurer'stestimony, an unbroken chain of events, and claimant's multipleheadaches and episodes of dizziness. The testimony of Dr. Maurersupported a finding of causal relationship between complications fromthe accident and claimant's seizures. Dr. Maurer stated that an MRIwas the best tool for diagnosing head injuries but one could not beperformed on claimant when he was admitted to the hospital on the dateof the accident because his back injury was the primary concern. AnMRI could not be performed later because of the metal rods implanted inclaimant's spine. In a discussion with claimant in the year prior todeposition, claimant told Dr. Maurer that he was dazed when heinitially impacted the water but did not remember much about theincident. Dr. Maurer opined that a loss of memory could suggest apossible head injury.

Employer did point to hospital records from the date ofadmission on November 21, 1991, where claimant denied any loss ofconsciousness and was able to remember most of the events of theaccident. However, the records also show claimant was not able torecall whether he had been struck by an I beam while in the water. TheCommission's finding that a causal connection existed betweenclaimant's accident and his seizures is not against the manifest weightof the evidence.

Employer also contends that the average weekly wagecalculations by the Commission and by the circuit court, predicated onSylvester v. Industrial Comm'n, 197 Ill. 2d 225, 756 N.E.2d 822 (2001),create a windfall for the claimant where (1) the Commission'scalculation of average weekly wage would result in claimant receiving"$24,864.84 in tax free payments for one year," and (2) an award ofbenefits at an increased rate dated back to the date of the accident onNovember 21, 1991, at the Commission rate or the circuit court's rate,would result in windfalls of over $80,000 and over $40,000,respectively. The claimant has the burden to establish his averageweekly wage. Edward Don Co. v. Industrial Comm'n, 344 Ill. App. 3d643, 655, 801 N.E.2d 18, 27 (2003). The determination of a claimant'saverage weekly wage is a question of fact for the Commission. Onreview, we will not disturb the Commission's determination unless it isagainst the manifest weight of the evidence. Edward Don Co., 344 Ill.App. 3d at 655, 801 N.E.2d at 28. "[A]lthough concern over a windfallto the employee remains relevant in computing average weekly wage, itis not determinative." Sylvester, 197 Ill. 2d at 236, 756 N.E.2d at829.

First, addressing whether claimant would receive a"$24,864.84 windfall" under the Commission's decision, such figure isonly slightly higher than the $23,119.47 of claimant's "actualearnings" in the year prior to his injury. Compare Sylvester, 197 Ill.2d at 235-36, 756 N.E.2d at 829 (claimant's receipt of an amount 32%more in TTD benefits than he would have earned as regular wages did notrise to the level of windfall), with Hasler v. Industrial Comm'n, 97Ill. 2d 46, 52, 454 N.E.2d 307, 310 (1983) (finding claimant wouldreceive a windfall by receiving an award almost six times greater thanher income from the year prior to her injury). Employer'scharacterization of claimant's award as a "windfall" is unpersuasive. As to whether the tax-free nature of such payments creates a windfalleffect, such may be the effect, but the legislature has made aconscious decision to exclude such payments from a claimant's taxableincome. It is within the province of the legislature to create such astatutory scheme.

Second, employer claims that the benefit award to claimantat an increased rate back to the date of accident on November 21, 1991,would result in a windfall of over $80,000 at the rate of theCommission and over $40,000 at the rate set by the circuit court,especially where employer was paying TTD benefits "at a correct ratefor almost ten years." Employer provides no basis for these figures. Before the Commission, employer contended that the arbitrator'sdetermination of the average weekly wage, $472.38 ($24,563.66 (regularearnings plus two-thirds of the overtime wages)/52 weeks), was correct. Here, citing McCartney v. Industrial Comm'n, 174 Ill. App. 3d 213, 529N.E.2d 250 (1988), it argues that the amount it actually paid claimant,based on a $505.49 average weekly wage, was the correct amount. As tothe rate voluntarily paid, the Commission is not bound as to the rateof TTD benefits paid to a claimant; rather, it is bound by statute.

While employer did stipulate to the figure of 38 weeks as adenominator in the average weekly wage formula, it expresslyconditioned such stipulation to the extent that it believed Sylvestershould not be given retroactive application. "Generally, when a courtissues an opinion, the decision is presumed to apply both retroactivelyand prospectively." American Airlines v. Industrial Comm'n, 328 Ill.App. 3d 343, 346, 766 N.E.2d 1132, 1134 (2002), citing DeichmuellerConstruction Co. v. Industrial Comm'n, 151 Ill. 2d 413, 416, 603 N.E.2d516, 518 (1992). This presumption can be overcome in two ways. First,the issuing court may expressly state in its decision that it is to beapplied prospectively only. American Airlines, 328 Ill. App. 3d at346, 766 N.E.2d at 1134. Second, a later court may under certaincircumstances expressly decline to give the previous opinionretroactive effect, at least with respect to the parties appearingbefore the later court. American Airlines, 328 Ill. App. 3d at 346,766 N.E.2d at 1134. The Sylvester decision makes no reference that itis to be given prospective application only.

Whether the second method of overriding the presumption isviable first depends upon whether Sylvester establishes a new principleof law, either by overruling clear past precedent on which litigantsmay have relied, or by deciding an issue of first impression whoseresolution was not clearly foreshadowed. Elg v. Whittington, 119 Ill.2d 344, 357, 518 N.E.2d 1232, 1238 (1987).

Contrary to employer's assertion, Sylvester did not representa change in the method of determining average weekly wage fromMcCartney v. Industrial Comm'n, 174 Ill. App. 3d 213, 529 N.E.2d 250(1988). First, McCartney does not state that the denominator in theaverage weekly wage calculation is to be the number of weeks a claimantactually worked a portion thereof. Instead, the court in McCartneyrejected the Commission's attempt to use 52 weeks as a denominatorwhere the claimant had only worked 509 hours in the 12 months precedinghis injury. McCartney, 174 Ill. App. 3d at 215, 529 N.E.2d at 252. The court cited language from section 10 of the Act that the figureshould be "the number of weeks actually worked." McCartney, 174 Ill.App. 3d at 215, 529 N.E.2d at 251.

As Sylvester notes, it was not a change to then-existingmethods of calculating the average weekly wage. Sylvester, 197 Ill. 2dat 233-34, 756 N.E.2d at 828, citing Peoria Roofing & Sheet Metal Co.v. Industrial Comm'n, 181 Ill. App. 3d 616, 537 N.E.2d 381 (1989) (andother cases). Nor is McCartney inconsistent with Sylvester, in that itmerely refers to the statutory language as to the "number of weeksactually worked" but never attempts to extract the meaning therefrom. See McCartney, 174 Ill. App. 3d at 215, 529 N.E.2d at 251. BecauseSylvester neither explicitly gave retroactive effect, nor establisheda new principle of law, employer has failed to show that Sylvestershould not be applied retroactively in this case.

On cross-appeal, claimant argues that the circuit court erredin failing to include overtime wages in calculating his average weeklywage. In Edward Don Co., the employer also argued that the Commissionerred in including the claimant's overtime hours in calculating theaverage weekly wage. Edward Don Co., 344 Ill. App. 3d at 656, 801N.E.2d at 28. Relying on Edward Hines Lumber Co. v. Industrial Comm'n,215 Ill. App. 3d 659, 575 N.E.2d 1234 (1990), the claimant assertedthat overtime hours were properly included in calculating his averageweekly wage. We rejected claimant's argument finding the Edward HinesLumber Co. case to be distinguishable from the facts in that case wherethe claimant presented no evidence establishing the number of hours hewas required to work.

Section 10 of the Act explicitly states that overtime is tobe excluded in calculating the average weekly wage. 820 ILCS 305/10(West 2000). Moreover, similar to the situation in Edward Don Co.,while claimant presented a wage summary sheet showing that he workedsome overtime in 22 of the 45 weeks in which he worked at least inpart, claimant can point to no evidence that (1) he was required towork overtime as a condition of his employment, (2) he consistentlyworked a set number of overtime hours each week, or (3) the overtimehours he worked were part of his regular hours of employment. EdwardDon Co., 344 Ill. App. 3d at 657, 801 N.E.2d at 29. Accordingly, theCommission erred in including claimant's overtime hours at his regularrate of pay in calculating his average weekly wage. The circuit courtproperly excluded such wages in making a determination of claimant'saverage weekly wage.

Claimant also argues that the circuit court erred bydetermining that he worked 38 weeks of the previous year in calculatingTTD benefits. The court, noting that the Commission failed to explainhow it arrived at the figure of 34.6 weeks, stated, "In any event, theparties want a resolution of this matter, and based on the pertinentdata, agree that this divisor should be 38 weeks. ***. I will proceedusing the numbers agreed to by the parties." While claimant stipulatedto the figure of 38 weeks before the circuit court, he now attempts toraise the argument that the court should have used the Commission'sfigure of 34.6 weeks.

A fundamental part of the adversarial process is that a partyforfeits his right to complain of an alleged error where to do so isinconsistent with the position he took in an earlier court proceeding. McMath v. Katholi, 191 Ill. 2d 251, 255, 730 N.E.2d 1, 3 (2000). Aparty may not complain of error that he induced the court to make or towhich he consented. McMath, 191 Ill. 2d at 255, 730 N.E.2d at 3. Here, claimant conceded that 38 weeks was a proper figure forcalculation of his average weekly wage. He affirmatively stated to thecircuit court that "the applicable weeks would be *** 38 weeks." Thecourt used the figure, as stipulated by the parties, in itscalculations. Claimant was bound by the statement and forfeited anychallenge to the propriety of the court's use of the figure incalculating TTD benefits.

For the reasons stated, we affirm the trial court's judgment.

Affirmed.

HOFFMAN, CALLUM, HOLDRIDGE, and GOLDENHERSH, JJ., concur.