The Illinois Appellate Court has in the past held that if a claimant fails to present evidence regarding his entitlement to a wage differential award, then he implicitly waives his right to such an award. The Lenhart case suggests that there are exceptions to that rule.
The claimant in that case worked as a dockworker and truck driver. He filed an Application for Adjustment of Claim alleging a low back injury resulting from a December 2004 accident. Accident and causation were not disputed. The employer also did not dispute that the claimant could no longer perform the same physical demand level as a result of the accident. However, the parties disputed the extent of the claimant’s injuries.
At the arbitration hearing, the claimant presented evidence in an attempt to show that he was permanently and totally disabled (PTD), which the employer disputed. At the conclusion of the arbitration hearing, the arbitrator found that the claimant proved that he was permanently and totally disabled as a result of the work-related accident under an odd-lot theory. The employer appealed the arbitrator’s decision.
On appeal, the employer asked the Commission to reverse the arbitrator’s permanent total disability benefits award and enter judgment awarding the claimant wage differential benefits based on the vocational expert testimony. The claimant did not argue that he was entitled to an award based on a wage differential calculation, but instead requested the Commission to affirm the arbitrator’s PTD award. The Commission reversed the arbitrator’s PTD award and modified the award to PPD benefits representing 75% loss of use of the whole person. The claimant appealed the Commission’s decision to the Circuit Court. The Circuit Court entered a judgment confirming the Commission’s decision.
- APPELLATE COURT DECISION
On appeal to the Illinois Appellate Court, the claimant raised two alternative issues. First, the claimant argued that the Commission’s finding that he failed to prove that he was entitled to PTD benefits was against the manifest weight of the evidence. Second, the claimant advanced an alternative argument that the Commission erred in failing to consider his right to receive PPD benefits based on a wage differential award.
The Court upheld the Commission’s finding that the claimant failed to prove that he was permanently and totally disabled under an odd-lot theory. However, the Court also held that the Commission erred in failing to determine whether the claimant was entitled to a PPD benefit award based on a wage differential calculation, rather than a percentage of a person as a whole award, and remanded the case to the Commission for a determination of whether the claimant was entitled to a PPD award based on a wage differential calculation.
In coming to this conclusion, the Court reasoned that the employer raised the question of whether the claimant should receive a wage differential by arguing the issue in its brief before the Commission, and that it was an issue that appeared from the evidence of record. The Court determined that the employer’s medical expert and vocational expert testimony, as well as the stipulation that the claimant could no longer meet the physical demands of his usual and customary line of employment, were enough to meet the requirements to qualify for a wage differential award.
The Court determined that although the claimant did not request a wage differential award, nothing in the record suggested that the claimant explicitly elected to waive his right to recover a wage differential award under section 8(d)(1).
The Court distinguished its prior holding that if a claimant fails to present evidence regarding his entitlement to a wage differential award, then he implicitly waives his right to such an award. The Court indicated that even though the claimant did not pursue PPD benefits, the record contained evidence relevant to the claimant’s entitlement to a wage differential award. Also, nothing in the record suggested that the claimant’s request for the PTD benefits should be construed as an election, express or implied, with respect to his right to PPD benefits. The Court held that in cases where a claimant unsuccessfully seeks PTD benefits and does not make an alternative request for PPD benefits, the claimant is still entitled to PPD benefits when the evidence supports such an award. The Court further held that, in such cases, the Commission is obligated to consider a wage differential award when there is evidence in the record that could support a wage differential award, regardless of which party presented the evidence, and when nothing in the record suggests that the claimant elected to waive his right to recover such an award.
From a Respondent’s perspective, it is important to note that the petitioner need not specifically request a wage differential award in order to qualify and potentially be awarded a wage differential award. Employers or their agents must be prepared to defend against a wage differential award even if the petitioner has never requested one, particularly if the employer stipulates that the claimant cannot meet the physical demands of his usual and customary line of employment and there is evidence in the record that may support a wage differential award. The Court’s preference for a wage differential award over an 8(d)(2) person as a whole PPD award is also emphasized in this decision and worth noting.
Thanks to attorney Allison Mecher for the excellent summary of this important case.