The Illinois Industrial Commission Awarded Benefits For Loss Of Earnings, Even Though Claimant Had Union Grievance Pending Asserting He Wanted And Could Perform His Former Job

A majority of the Commission held that claimant, who suffered a work-related torn rotator cuff, was entitled to benefits under Section 8(d)1 of the Workers’ Compensation Act. The dissent argued it was improper for the Commission to enter an award for loss of earnings capacity when claimant had a union grievance pending that asserted he wanted and could perform his former job.

Claimant injured his left shoulder while at work. He was diagnosed with a torn rotator cuff and had the shoulder surgically repaired. He returned to work performing one-handed work. He testified he attempted to perform another job but stopped working after he noticed pain in his left arm. Defendant than terminated his employment. The company doctor continued to restrict claimant’s work activities to limited use of the left arm and no overhead work. Claimant subsequently obtained employment at a cleaning establishment earning $250 per week. Claimant offered into evidence his union contract, which showed he would be earning $19.75 per hour at defendant, or $767 per 40 hour week.

The arbitrator awarded benefits under Section 8(d)1, finding claimant was partially incapacitated from pursuing his usual and customary line of employment. The arbitrator also awarded temporary total disability for 93- 3/7 weeks.

A majority of the Commission corrected the temporary total disability rate and affirmed on all other issues.

The dissent argued that because the injury was to the shoulder, the award should be under Section 8(e), not Section 8(d)1. The dissent further argued it was too soon to award a loss earnings based on a wage differential because claimant has a formal union grievance pending demanding his old job back. The dissent explained that in filing his grievance, claimant “obviously” asserts he is capable of performing his former job. If the Commission is to believe him, his disability creates no wage differential or Section 8(d)1 award, the dissent ruled.

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