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The Appellate Court Held That The Illinois Industrial Commission Erred In Failing To Award Wage Differential Benefits, Where Claimant Was Unable To Return To His Usual Line Of Employment An

The Appellate Court 3rd District held that the Commission erred in failing to award wage differential benefits to claimant, noting that despite defendant’s contention, there was no affirmative requirement under section 8(d)1 of the Workers’ Compensation Act that a claimant conduct a job search. Evidence of a claimant’s job search was but one way to show impairment of earnings. The court further held that defendant was entitled to a credit against the permanent partial disability award for overpayment of temporary total disability benefits where there was no evidence that claimant participated in a group plan.

Claimant was hit in the left elbow with shotgun pellets while working for defendant as a tree trimming crew foreman. At the time of the injury, he was 41 years old, had completed an apprenticeship with the Internal Brotherhood of Electrical Workers and had held jobs as part of a spray crew and tree trimming crew. He underwent several surgeries but was unable to return to his former position due to pain and swelling in his shoulder. He testified that he telephoned his local union four times between September 1994 and September 1995 in an attempt to find work. He also contacted several employers. All these efforts were unsuccessful in leading to employment. As of the date of the arbitration hearing, claimant testified he was unable to lift more than five pounds and could not use his left hand for support or to grip

In January 1996, he conducted another job search. He applied to several factories where the starting wage was $5.50 per hour. He also regularly returned to the places he previously applied. Most of those employers paid minimum wage. Although claimant was not medically restricted from driving, he limited his employment search to the area near his home because he experienced arm discomfort when driving more than 10 to 15 miles. Claimant also contacted employers identified in a labor market survey prepared on defendant’s behalf. He eventually obtained full-time employment at a garage earning $5.50 per hour. He testified that arm discomfort often prevented him from working the entire week.

The arbitrator found claimant incapacitated to the extent of 60 percent loss of use of a man asa whole pursuant to section 8(d)2, that defendant was responsible for unpaid medical expenses and that no credit was due for overpayment of temporary total disability. The Commission modified the temporary total disability award and credited defendant for overpayment of benefits. The Circuit Court of Bureau County confirmed the decision of the Commission.

The Appellate Court 3rd District held that the Commission’s failure to award wage differential benefits pursuant to section 8(d)1 was against the manifest weight of the evidence. In so holding, the court explained that the plain language of section 8(d) prohibited the Commission from granting an award based on percentage of the “person as a whole” where the claimant presented sufficient evidence to show a loss of earning capacity. The only exception was where the claimant waived his right to recover under section 8(d)1. In the instant case, there was no indication that claimant waived his right to a wage differential award. The court went on to determine that claimant provided ample evidence of the first prong of the wage differential award-that he was unable to return to his “usual and customary line of employment” as a tree trimmer. Both is treating and examining doctors and a union representative testified to this fact. The functional capacity evaluation also indicated claimant would be unable to return to his pre-injury work. Next, the court found claimant met the second requirement-an impairment of earning capacity-noting that his pre-injury wages were $891 per week, but following his injury he earned only $220 per week.

The court rejected defendant’s argument that because claimant did no secure suitable employment within his restrictions, he failed to establish his true earning capacity. The court explained that there was no affirmative requirement under section 8(d)1 that a claimant even conduct a job search. Evidence of a claimant’s job search was but one way to show impairment of

earnings. Here, evidence indicated that claimant regularly inquired about positions within his restrictions. Although claimant limited his search to his local area, a labor market survey demonstrated, given claimant’s education, experience and restrictions, a search of a larger geographical area was unlikely to locate a job with a wage substantially greater than the wage paid at the job claimant found near his home.

The court went on to affirm the Commission’s decision regarding the temporary total disability award based on the treating doctor’s original date of maximum medical improvement. Although claimant’s doctor later suggested that claimant reached maximum medical improvement 14 months after the initial date, he also testified that claimant’s condition remained virtually unchanged between his October 1994 and October 1995 visits. Based on this evidence, the court concluded that the Commission could find claimant’s condition stabilized as of October 1994