Maintenance Worker’s Shoulder Disability, Post-Injury Part-Time Employment Warrant Wage Loss Benefits

Case name: Maldonado v University of Illinois, 12 ILWCLB 52 (Ill.Ind.Comm.2004).

Ruling: The Commission affirmed the arbitrator’s award for wage loss benefits to a maintenance worker who suffered a work-related tear to his rotator cuff. The dissent argued that the worker, who began taking college classes following his injury, limited himself to post injury-part-time work and that such work was not a true reflection of his earning capability.

What it means: An employee’s post injury part-time employment and enrollment in college classes will not bar an award for wage loss benefits.

Summary: The claimant, a maintenance worker, injured his neck and right shoulder while pulling a lawnmower off a truck. He underwent conservative treatment, but his pain continued. He was subsequently diagnosed with a right rotator cuff tear and underwent surgery. He made several unsuccessful attempts to return to work, but the employer did not provide light duty work. The claimant found part-time employment working as a security guard, deli salesman, parking lot clerk, and sales clerk, earning between $6 and $6.50 per hour, working an average of 19 hours per week. The arbitrator awarded wage loss benefits pursuant to Section 8(d)1, finding that the claimant’s part-time work as a sales clerk constituted suitable employment. In calculating post-injury wages, the arbitrator multiplied the hourly rate at the claimant’s sales clerk job times 40 hours per week. Upon review, a Commission majority affirmed.

The arbitrator noted that the claimant underwent a functional capacity evaluation, which indicated that the claimant was unable to return to his former employment as a maintenance worker. He could perform medium-level work, but it was difficult to predict if he could work an eight-hour day.

Commission Akemann dissented, arguing that the claimant’s disability did not prevent him from pursuing his pre-injury job. The claimant’s supervisor testified that the job duties were within the claimant’s restrictions and that the claimant was provided assistance when needed. The Commissioner also argued that the claimant failed to prove an impairment of earnings. The claimant was attending college classes and limited himself to working part-time, which was not medically required was not a true reflection of his earning capability, the commissioner noted.

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Donald W. Fohrman & Associates, Ltd.