Can you have your wage differential and your perm total, too? In the case of Chlada v. Ill. Workers’ Comp. Comm’n, 58 N.E.3d 848, 405 Ill.Dec. 587 (Ill. App. 2016) , the answer from the Appellate Court was a resounding YES. In this case, the petitioner was employed as a beer truck driver / salesman. He suffered two separate work injuries. The first injury occurred on July 15, 1999. This led to permanent restrictions and an accommodation that paid less than he earned as a truck driver / salesman. The second injury occurred on October 23, 2002, and led to additional restrictions that went unaccommodated by the employer and was followed by a thorough but fruitless self directed job search followed thereafter by an award for permanent total disability benefits.

THE FIRST ACCCIDENT

On July 15, 1999, petitioner injured his lower back while pulling a hand truck loaded with six cases of beer up a stairway. From January 17, 2000 through March 15, 2000, petitioner worked a light duty job in the employer’s warehouse. While working light duty, petitioner earned only $629.20 per week for a 40 hour work week working the warehouse job, whereas he had earned $1294.20 per week as a driver / salesman. The employer paid wage differential benefits during the time that petitioner worked the light duty job warehouse job.  On May 31, 2000, petitioner was eventually given permanent restrictions of no continuous, repetitive lifting, carrying, bending or stooping, along with no repetitive lifting over 35 pounds, and no occasional lifting over 75 pounds.

Petitioner returned to the light warehouse job on June 12, 2000. He continued to work in that capacity through January 12, 2003, initially earning $15.73 per hour for 40 hours per week. This later increased to $16.23 per hour for 40 hours per week.

THE SECOND ACCIDENT

On October 23, 2002, petitioner injured his neck while working in the warehouse. While pulling up on the spring of a dock plate, he experienced neck pain that radiated down into his left arm. This led to the imposition of restrictions including no repetitive activities of the upper extremities, frequent bilateral lifting and carrying at the chest level limited to 58 pounds, and only occasional overhead reaching. These restrictions were deemed permanent as of January 14, 2004. The employer did not take petitioner back to work after the additional restrictions were imposed, and petitioner conducted a job search during which he contacted over 1000 companies. He never received a job. His last date of work was January 13, 2003.

THE PROCEDURAL HISTORY

Petitioner filed two separate workers’ compensation claims, one for the July 15, 1999 case (lower back), and a second claim for the October 23, 2002 case (cervical spine). The parties stipulated that in the year prior to the 1999 work accident, petitioner’s average weekly wage was $1294.20. Petitioner also produced a collective bargaining agreement during the hearing that package driver salesmen earned .37 per case. Petitioner testified that he had averaged 4,500 cases sold per week. The CBA also showed that warehouseman were paid $17.49 per hour. Petitioner testified that prior to his cervical injury, he worked as a warehouseman for 40 hours per week on average. Petitioner’s evidence regarding wages was unrebutted.

The Arbitrator found that petitioner had proven that he sustained a compensable accident on July 15, 1999 and that his lower back condition was causally related to that accident. The Arbitrator awarded TTD for 27 weeks, with the final TTD period ending on June 11, 2000. The arbitrator also awarded the petitioner “TPD / maintenance” benefits for the period from June 12, 2000 through October 23, 2002 (the date petitioner sustained the cervical injury) at a rate of $485.65 per week.

Respondent appealed to the Commission. The Commission modified the decision by vacating arbitrator’s award of TPD / maintenance benefits and by awarding the petitioner wage differential benefits pursuant to section 8(d)(1) of the Act from June 12, 2000 through January 12, 2003. The Commission found that as a result of the July 15, 1999 work accident, petitioner was unable to return to his usual occupation as a delivery truck driver, and that although petitioner did eventually return to work for the employer, he did so as a warehouseman at a reduced hourly rate. The Commission calculated the rate of the petitioner’s wage differential benefits by calculating the difference between the petitioner’s average weekly wage as a beer truck driver ($1294.20 per week) and what the petitioner testified he was earning while he worked in the employer’s warehouse ($629.20 per week through February7, 2002 and $649.20 per week thereafter), and then multiplying the resulting figure by two-thirds. The Commission awarded a wage differential benefit of $443.33 per week for the time period of June 12, 2000 through February 7, 2002, and $430 per week from February8, 2002 through January 12, 2003.

The Commission rejected the petitioner’s argument that his wage differential should be based upon the salary he could have earned as a beer truck driver at the time of the arbitration ($1665.00 per week) rather than the average weekly wage he had been earning prior to his back injury. In so ruling, the Commission stated that “the parties stipulated to an average weekly wage of $1294.20 and that stipulation is binding.” In support of its decision to terminate the petitioner’s wage differential benefits on January 12, 2003, the Commission stated:

“Pursuant to Section 8(d)(1), the claimant’s entitlement to wage differential continues for the ‘duration of the disability’. The Commission finds that the claimant’s disability as a result of this injury ended on January 12, 2003 when he began losing time from work on account of his injury on October 23, 2002 (case #02 WC 54676). Therefore, no further wage differential payments would be due thereafter.”

The Commission affirmed and adopted the arbitrator’s decision in all other respects.

Petitioner sought judicial review of the Commission’s decision in the circuit court of Cook County, arguing that his entitlement to wage differential benefits did not end on January 12, 2003, and that the Commission had miscalculated the rate for those benefits. The circuit court confirmed the Commission’s determination that wage differential benefits should cease on January 12, 2003, noting as follows:

In order to qualify for wage differential benefits under section 8(d)(1) of the Act, a claimant must prove: (1) a partial incapacity which prevents him from pursuing his usual and customary line of employment; and (2) an impairment of earnings. The object of section 8(d)(1) is to compensate an injured claimant for his reduced earnings capacity, and if an injury does not reduce his earning capacity, he is not entitled to compensation under that section. After January 12, 2003, petitioner was unable to work at all due to his subsequent cervical injury. At that point, the claimant was not suffering an impairment to his earning because he was unable to show the average amount he was earning or was able to earn in some suitable employment or business after the July 15, 1999 accident.

However, the circuit court found that the Commission’s calculation of the petitioner’s wage differential benefit rate was contrary to law, and  ordered the Commission to calculate petitioner’s wage differential benefits “in accordance with the court’s findings as to the amount petitioner would have been able to earn in the full performance of his duties as a beer truck driver at the time of the arbitration hearing, and the amount that he is able to earn after his injury and subject to the limitations as the maximum amounts set forth in the Act.”

On remand, the Commission noted that the circuit court’s order had confirmed the portion of the Commission’s prior decision holding that the petitioner “was not entitled simultaneously to a lifetime wage differential and a lifetime permanent and total disability award.” However, the Commission stated that the circuit court had reversed the portion of the Commission’s prior decision in which the Commission found that the petitioner’s right to wage differential benefits terminated on January 12, 2003. The Commission stated that “[t]he Circuit Court decision specified that the wage differential award should be set at $485.65 a week and that [the] right to wage differential should extend past January 12, 2003.” based on this understanding, the Commission extended petitioner’s wage differential award through April 22, 2004, the date that the petitioner was found to be permanently and totally disabled from his cervical injury.

***Petitioner’s cervical injury resulted in the Commission finding that petitioner was permanently and totally disabled as of April 22, 2004. This finding was subsequently confirmed by the circuit court. The PTD award was not appealed to the Appellate Court.***

The Respondent subsequently filed a “Motion to Correct Clerical Error” with the Commission, arguing that the Commission had misstated and misapplied the circuit court’s remand order. The Commission denied respondent’s motion. Petitioner sought review of the Commission’s decision on remand in the circuit court of Cook County. Petitioner argued that his wage differential benefits should continue indefinitely and should not cease on April 22, 2004, because his disability from the July 15, 1999 work injury had not ended. The circuit court found that the Commission’s decision to extend the claimant’s wage differential award through April 22, 2004 was against the manifest weight of the evidence because the claimant’s entitlement to wage differential benefits terminated on January 13, 2003, “at which time PTD benefits began.” Accordingly, the circuit court set aside the Commission’s remand order.

ANALYSIS BY THE APPELLATE COURT AS TO THE DURATION OF CLAIMANT’S WAGE DIFFERENTIAL BENEFITS

This case raised a first impression regarding the interplay between wage differential benefits under section 8(d)(1) of the Act and permanent total disability (PTD) benefits under section 8(f) of the Act. Can a claimant be entitled to collect both types of benefits simultaneously when his earning capacity is diminished by a work related accident and he subsequently suffers a second work related accident that renders him permanently and totally disabled? The appellate court wrote that the fact that the claimant subsequently suffered a more disabling work injury to his neck does not alter the fact that he was still disabled from the July 15, 1999 work injury to his lower back, which permanently diminished his earning capacity. Once entitlement to a wage differential for the July 1999 back injury was established, claimant was entitled to collect such benefits for the duration of his disability, and his disability did not end merely because he suffered a second, more disabling work injury. The claimant’s entitlement to wage differential benefits would end if and only if he later became able to earn the salary he formerly earned as a delivery truck driver. That never happened in this case.

Furthermore, ending claimant’s wage differential benefits as of the date he began to miss work due to his subsequent neck injury, or as of the date he became entitled to collect PTD benefits as a result of his neck injury, the claimant would not be made whole. The PTD benefits were based on the salary he was earning as a warehouseman at the time of his disabling injury, which was less than he was earning when he was a beer delivery truck driver at the time of his back injury. If his wage differential benefits ended when his PTD benefits began, he would lose compensation for the prior work related injury that had impaired his earning potential by rendering him unable to return to work as a beer truck driver. This would frustrate the fundamental remedial purpose of the Act, which is to protect employees by providing efficient remedies and prompt and equitable compensation for their injuries.

The appellate court broke it down like this:

  • The first economic disability is compensated by paying the claimant a wage differential benefit equal to 2/3 of the difference between what he was able to earn as a beer truck driver at the time of arbitration and what he was actually earning as a warehouseman at the time of arbitration.
  • The second economic disability is compensated by paying the claimant PTD benefits in the amount of 2/3 of the salary he was earning as a warehouseman at the time of the second injury subject to the statutory cap, which amounts to $446.40 per week.
  • Thus, in order to be fully compensated under the Act for both of these work related economic injuries, the claimant should receive both wage differential benefits of $485.65 per week indefinitely, and PTD benefits of $446.40 per week indefinitely.
  • An employer should not be allowed to take advantage of a fortuitous circumstance (i.e. the timing of the PTD award) that has nothing to do with the claimant’s entitlement to wage differential benefits.

There is nothing in the Act that prohibits the Commission or the court from awarding both PTD and wage differential benefits simultaneously and indefinitely under circumstances like those presented in this case. If the legislature intends these two types of benefits to be mutually exclusive, it is up to the legislature to make sure that intention is clear. Until that happens, the court will continue to construe the Act liberally as authorizing both types of benefits simultaneously.

TAKEAWAYS

  • When handling a case, remember that a prior wage differential award can run concurrently with a subsequent award for PTD benefits. The two are not mutually exclusive.
  • Remember that this situation applies to Commission decisions awarding wage differential and permanent total disability benefits. This doesn’t apply to past settlements of disputed wage differentials, perm totals, etc.
  • In this case, both injuries occurred with the same employer. This situation could easily occur with two separate employers. The same analysis should apply, except that now wage differential benefits are awarded only through age 67, and not for the life of the claimant.

If you have questions about what benefits you are entitled to after being injured at work, do not hesitate to contact me for a free consultation.