The calculation of wage differential benefits is not always simple arithmetic. A recently decided 1st District Appellate Court case is an instructive reminder of the process Illinois courts use in determining a wage differential benefits award and the Respondent’s potential exposure in these types of cases.
The fact pattern in Jackson Park Hospital v. The Illinois Workers’ Compensation Commission et al. (Kathy Jenkins, Appellee) had a long and tortured history; only a few points are necessary for our discussion of wage differential benefits. The petitioner was employed as a stationary engineer and suffered injuries to her neck, low back, and left knee in a work-related accident. She was given permanent work restrictions and the Respondent accommodated those restrictions by placing her in a public safety officer position within its security department. Though most public safety officers start out making $8.34 per hour, the petitioner continued to make her pre-injury wage of $23.61 per hour. Eventually, the petitioner was fired from her job as a public safety officer.
At the arbitration hearing, the Arbitrator found that the petitioner was unable to perform the required physical activities of her prior occupation of stationary engineer. However, the Arbitrator also concluded that the petitioner did not prove an impairment of earning capacity as a result of her physical incapacity as she continued to make the same rate of pay as she did before her injury. He denied her request for a wage differential award and instead awarded permanency benefits of 40% loss of use of the man as a whole. The decision was later adopted by the Commission.
The Appellate Court reversed the Commission’s decision. The Court found that the Commission and Arbitrator erred by not conducting an analysis to determine whether the claimant’s post-injury wages reflected her true earning capacity in a competitive job market.
The Court found that the Commission should admit and consider all evidence relevant to the claimant’s true earning capacity. The Court wrote that “it was the duty of the Commission to admit and factor all of the evidence concerning the nature of the claimant’s post-injury employment with the employer, not simply compare her pre- and post-injury wages. It was also the duty of the Commission to factor other evidence concerning positions available to the claimant in the competitive job market based on her restrictions and job skills and determine whether her disability has resulted in an impairment of earning capacity.”
What does it mean?
An Arbitrator must factor all of the evidence in determining if a wage differential award is appropriate, and not just compare pre- and post-injury salaries. The Respondent should also consider using vocational rehabilitation counselors to provide evidence of the earning capacity of the petitioner in the relevant labor market.
Thanks to attorney Frank Johnston for the summary of this informative case.