Illinois Industrial Commission Found Most Equitable Method Of Calculating Section 8(D)1 Award For Salesperson, Who Was Injured After Only 11 Days Of Work, Was To Base Wage Differential On Her Actual E

A majority of the Commission rejected the arbitrator’s approach of calculating claimant’s wage differential based on the wages of other salespeople at defendant’s business who were also earning straight commission.  Rather, the majority chose to calculate benefits based on claimant’s actual wages earned during her 11 days of preinjury employment with defendant.  The dissent argued that in calculating the wage differential, the majority disregarded the evidence showing what claimant would have been able to earn, but for her injury, and disregarded the well-established principle that the Workers’ Compensation Act should be liberally construed in favor of the employee.

Claimant, a salesperson, worked for defendant for 11 days as a full-time employee before injuring her right foot. She was paid a straight commission of 8% on sales she made.  She stated that, in her short time with defendant, she became one of the top associates and had developed a clientele.  At the time of hearing, claimant was restricted to working part time. She works an average of 18 to 20 hours a week.

The arbitrator awarded wage differential benefits under Section 8(d)1 of the Workers’ Compensation Act. In calculating what claimant would be able to earn, the arbitrator added the year-to-date sales of the four top salespeople at defendant, multiplied this figure by the 8% commission, and divided it by four to reach an average amount earned. The arbitrator concluded claimant was entitled to a wage differential of $290 per week under Section 8(d)1.

A majority of the Commission modified the award, finding claimant was entitled to a wage differential of $109 per week. In so finding, the majority determined the most equitable method of calculating the wage-differential would be based on claimant’s actual earnings. The majority noted it was claimant’s first sales position and that she had never held a job before where she earned commissions.  Also, she only worked for defendant 11 days before she was injured. Based on this new employment, which was of such short duration, the majority found claimant clearly failed to establish that the wages earned by other, more experienced employees were relevant to determining her wage differential.  The majority found it to be pure conjecture and speculation to suggest that claimant, an inexperienced salesperson, would earn as much or more than experienced salespersons.

Furthermore, the majority noted Section 8(d)1 referred to “the average amount which claimant is earning or is able to earn in some suitable employment or business after the accident.”  Claimant only established what she earned, both before and after the accident.  Therefore, the more accurate and reliable method of determining claimant’s Section 8(d)1 wage differential was to compare her earnings prior to the accident to her earnings afterward.  The difference is the best measure of her actual proven wage loss, the majority explained. The majority found that to use the novel method advanced by claimant and used by the arbitrator would unjustly compensate claimant for an earning capacity she had clearly not proven by the preponderance of credible evidence.

The dissent argued that in calculating the wage differential, the majority disregarded the evidence showing what claimant would have been able to earn, but for her injury, and disregarded the well-established principle that the Workers’ Compensation Act should be liberally construed in favor of the employee.  Further, the dissent contended the approach by the arbitrator was neither “novel” nor “creative,” for the Commission has repeatedly based wage differentials on the amount the claimant showed he would have been able to earn but for the injury.  The dissent also cited Forest City Steel Erectors v. Industrial Commission, in which the Appellate Court of Illinois calculated the wage differential using the amount the claimant would have been earning as an ironworker had he been able to remain in the job.