On July 8, 2016, the Appellate Court issued its decision in Chlada v. IWCC, which addresses payment of concurrent wage differential and permanent total disability benefits for the first time.
The claimant sustained two injuries with the Respondent. The first, an injury to the low back, was tried, and the Commission awarded wage differential benefits up to January 12, 2003, the date he was taken off work for a second injury to the cervical spine while working in a permanently-modified capacity for the employer at a reduced rate of pay. The Commission reasoned that wage differential benefits are only payable under Section 8(d)(1) of the Act for the duration of the disability, and the claimant's disability for that injury ended on January 13, 2003, when he began losing time for another injury that occurred in 2002. He was eventually rendered permanently and totally disabled for the second injury and awarded PTD benefits under an odd lot theory; neither the employer nor employee appealed the decision awarding benefits in the second case.
In the meantime, the Circuit Court heard the first case and agreed with the period of wage differential benefits but disagreed with the weekly wage differential amount, as it was not based upon what the Petitioner could have earned pursuant to Section 8(d)(1) and based upon the undisputed evidence presented at trial. Thus, it was remanded to the Commission on this error. On remand, the Commission rectified the error and then extended the total period of wage differential benefits by a year, to April 22, 2004, the date the claimant was rendered permanently and totally disabled. The employer filed a motion to correct a clerical error regarding the extension of time, which was denied. The claimant then appealed to the Circuit Court, arguing that his wage differential benefits should continue indefinitely because his disability from the first injury did not end because he was re-injured. That Court found that the extension was against the manifest weight of the evidence due to Petitioner's permanent total disability beginning on January 13, 2003.
The Appellate Court Decision addresses an issue of first impression: whether a claimant can collect both wage differential and permanent total disability benefits when one injury reduces his earning capacity and a subsequent injury renders him incapable of working. In order to do so, it first examined the language of Section 8(d)(1), which outlines the applicable circumstances in which a claimant is entitled to wage differential benefits. That section provides that those benefits are paid for the "duration of disability" in circumstances where a claimant's earning power is reduced due to the injury except in cases where permanent partial disability benefits have been awarded. The Appellate Court then considered the claimant's low back condition, indicating that the Petitioner never fully recovered from his low back injury, which left him unable to pursue his usual and customary line of employment as a truck driver. Thus, he was entitled to wage differential benefits for that claim once established regardless of sustaining a second injury that left him more disabled. Entitlement to those benefits would only end if he became able to earn the same salary he formerly earned or could have earned in his pre-injury position. Further, by discontinuing payment of wage differential benefits, the claimant was not made whole because PTD benefits are supposed to be based upon what he was making in the accommodated position, which, as the undisputed evidenced showed, was roughly $600 less than what he did make as a truck driver and roughly $1,000 less than what he could have made had he not been injured. Thus, he was entitled to payment of both wage differential benefits of $485.65 per week (statutory maximum) and PTD benefits of $446.40 per week, indefinitely, in order to properly compensate him for both injuries
As an aside, the Appellate Court also pointed out that the weekly PTD award in the second claim, which was not appealed, actually was based upon what the claimant made as a truck driver (and not his reduced, actual wages as a warehouse employee) based upon stipulations to AWW made by the parties. Thus, he was receiving already receiving roughly $860.00 per week in PTD, not the $446.40 the Appellate Court stated was the proper amount. However, that case had not been appealed, and the parties had stipulated to the average weekly wage, so the Appellate Court had no basis or jurisdiction to correct the erroneous PTD award. The Appellate Court also made a broad statement that both PTD and wage differential benefits can be awarded simultaneously and are not mutually exclusive, again directing the legislature to clarify that point in the statute if it intended claimants to receive one or the other.
If you have any questions about this case or any other Illinois Workers' compensation case or issue, please do not hestitate to contact the attorneys at Arnett Law Group.