When an injured employee’s work-related accident results in a permanent disability, the Illinois Workers’ Compensation Act allows various options in terms of the benefits available.  Depending on the severity of the injury and the consequences thereof, both physical and financial, the worker could be compensated based on loss of the person as a whole, wage loss, or even permanent and total disability.  The recent case of Lenhart v. Illinois Workers’ Compensation Commission, 2015 IL (3d) 130743WC, offers an interesting discussion of the alternative forms of permanent disability.

In Lenhart, there was no dispute that the employee had sustained a work injury and that as a result, he could no longer physically perform his pre-injury job as a dockworker/truck driver; he had undergone multiple back surgeries and the employer’s hired expert concluded that he was permanently restricted to lifting no more than 25 pounds.  The main dispute between the parties involved the extent of the worker’s permanent disability: the employee argued that he was permanently and totally disabled; the employer argued that the injured worker had exaggerated his physical disability as well as manipulated and misled his treating physicians and therefore was not entitled to permanent total disability.  In support of its position, the employer presented extensive video surveillance of the employee engaged in numerous activities which were beyond his proclaimed physical limitations.

The matter was brought before the arbitrator, who found that the injured worker had met his burden of proving that he was entitled to permanent total disability benefits under the odd-lot theory.  The employer filed a review with the Commission, requesting that they reverse the arbitrator’s permanent total award and instead find the injured worker entitled to wage differential benefits.  Wage differential benefits are awarded when an injured worker is partially incapacitated from pursuing her or his usual and customary line of employment and has an impairment in the wages she or he earns or is able to earn.  Upon review of the evidence, the Commission unanimously agreed that the employee failed to prove entitlement to permanent total disability benefits; instead of awarding a wage differential, however, the Commission awarded a 75% loss of the person as a whole.

The injured worker appealed the Commission’s decision to the circuit court and then the appellate court.  While the Third District Appellate Court determined there was more than ample support for the Commission’s adverse credibility determinations with regard to the employee and subsequent finding that he had failed to establish permanent total disability, the court took issue with the Commission’s refusal to consider a wage differential award.  Emphasizing the long-standing preference for wage differential awards, as they are easier to calculate than attempting to assign a percentage loss, the Lenhart court found that the Commission erred in not contemplating whether the injured employee had proven entitlement to a wage differential:

In the present case, the employer stipulated that the claimant could no longer meet the physical demands of his usual and customary line of employment as a dockworker/truck driver. Also, the employer’s medical expert, Dr. Espinosa, opined that the claimant could return to work with a 25-pound lifting restriction at the light end of the light-medium demand level, and the Commission found Dr. Espinosa’s opinion to be credible. Therefore, the record conclusively establishes the first requirement for a wage differential award.

With respect to the second requirement, reduced earning capacity, the employer’s vocational rehabilitation experts, Steffan and Bigelow, opined that there was a readily available and stable labor market in which the claimant could obtain positions earning between $10 and $15 per hour.

The evidence in the record, therefore, supports a finding that the claimant was entitled to a wage differential award, i.e., that he suffered a partial incapacity which prevents him from pursuing his usual and customary line of employment and that he has an impairment in earnings. The Commission, however, did not consider a wage differential award under section 8(d)(1), but instead awarded PPD benefits under section 8(d)(2). Lenhart, 2015 IL App (3d) 130743WC, ¶46-48.

The court vacated the Commission’s permanency determination and remanded it back for consideration of whether the employee was entitled to a wage differential; if the Commission finds that the injured worker is entitled to wage differential benefits, those should be awarded; if the Commission should find that the employee is not so entitled, the 75% loss of the person as a whole is to be reinstated.

Appellate Court, Illinois Workers’ Compensation Act, Illinois Workers’ Compensation Commission, Odd-Lot Theory, Permanent Partial Disability (PPD), Vocational Rehabilitation, Wage Differential