This interesting question was raised in the recent case of Jerry DiBenedetto v. City of Chicago, decided by the Appellate Court. After a trial before an arbitrator, Mr. DiBenedetto was awarded a wage differential of $982.67. The Illinois Workers’ Compensation Commission, on review, modified the decision from $982.67 down to $840.65 per week from September 9, 2011 through the duration of his disability, the maximum allowed in December 2006, the date of the injury. On judicial review, the Circuit Court confirmed the decision of the Commission.
The injured worker’s attorney on this appeal argued that the maximum benefit rate applied to his award should have been based on the maximum allowed at the time of his May 2012 arbitration hearing, instead of his average weekly wage (AWW) at the time of his date of injury in December 2006. They argued this position on the basis that Section 8(d)(1) of the Illinois Workers’ Compensation Act states that the employee is entitled to two-thirds of the difference between what he could earn in the full performance of his duties at the time of the hearing versus what he could earn currently, which is known as wage differential benefits. Section 8(d)(1) of the Act does not answer this question because it does not mention a date from which the maximum rate should be calculated.
The Appellate Court, in a unanimous decision, stated that the date of the accident controls the maximum benefit rate, despite the fact that there is no Commission decision or Appellate Court decision that specifically controls an 8(d)(1) award. The employee is considering his options at this time.