The Illinois Workers’ Compensation Act provides some flexibility in terms of the benefits available to compensate an employee for her/his permanent disability.  One of these options is referred to as wage differential benefits.  An injured worker qualifies for these benefits when s/he meets two criteria: first, she or he must be partially incapacitated from pursuing her or his usual and customary line of employment; and second, there must be an impairment in the wages she or he earns or is able to earn.  If the employee meets these requirements, then s/he can elect to have her/his permanent disability benefits calculated based on the difference between the wages s/he would be earning if s/he were still doing the pre-injury job and what s/he makes in the new post-injury job.

A fairly straightforward example of a claimant demonstrating entitlement to wage differential benefits is J-Squared Masonry v. Illinois Workers’ Compensation Commission, 2015 IL (4th) 140388WC-U.  The injured employee in that case was a bricklayer, a job that required him to routinely lift bricks weighing 40 to 50 pounds.  He sustained an undisputed work accident to his left arm; as a consequence of that injury, he was left with a permanent 40-pound lifting limit which precluded him from returning to work as a bricklayer.  The employer refused to provide job retraining or placement assistance, so the claimant was left on his own to find new employment.  He eventually found an “unloader” position at a national chain store earning $15.65 per hour, with the potential to earn as much as $18.65 per hour.  The only vocational rehabilitation expert involved testified that the claimant was unable to return to work in his original occupation as a bricklayer due to his continuing physical restrictions, but the position the injured worker had found for himself was “an excellent job” for the claimant due to its relatively high wage.  The last piece of the puzzle was provided by a representative from the Bricklayers Union, who testified that if the injured worker was still working as a bricklayer, he would be earning $40.03 per hour.

Upon review of the evidence, the Commission found that the workers’ compensation claimant had met both prongs of the wage differential test.  First, the Commission determined that the medical and vocational evidence showed that the injured employee was no longer able to work as a bricklayer.  Second, the Commission concluded he had shown a resultant impairment of his earnings.  Specifically, the Commission found that if the claimant were still employed as a bricklayer, he would be earning $40.03 per hour for a 40-hour week, or $1601.20 per week; in his current job, however, his top wage would be $18.65 per hour, or $746 per week.  Pursuant to the statute, the Commission awarded weekly wage differential benefits at 66 2/3% of the difference between $1601.20 and $746.

Illinois Workers’ Compensation Act, Illinois Workers’ Compensation Commission, Wage Differential, Wage Loss

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