Wage differential awards must be based on an identifiable occupation that the claimant is able and qualified to perform, according to a recent decision by the Illinois Appellate Court in Crittenden v. Illinois Workers’ Compensation Commission, 2017 IL App (1st) 160002WC Illinois Courts PDF.
Wage differential benefits are a type of permanent partial disability available to injured workers who prove:
- partial incapacity which prevent the worker from pursuing their usual and “customary line of employment,” and
- an impairment of earnings (loss of earning capacity).
Wage differential benefits are “equal to 66-2/3% of the difference between the average amount which he would be able to earn in the full performance of his duties in the occupation in which he was engaged at the time of the accident and the average amount which he is earning or is able to earn in some suitable employment or business after the accident.” 820 ILCS 305/8(d)(1) Illinois General Assembly | IWCC PDF.
In this case, the claimant was a sanitation worker who could not return to his prior occupation following his accident, as an functional capacity evaluation found that he could only perform light duty work. A vocational expert testified that the claimant, who was not currently working, was able to earn $8.25 to $13.78 per hour, with the highest amount being the average wage for a school bus driver. However, the claimant testified that he was unable to drive because of a prior DUI and he did not expect to be licensed to drive anytime soon.
The employer’s vocational expert testified that the claimant underwent a vocational rehabilitation program, but that he was not fully compliant and did not give his best effort. On this basis, the Illinois Workers’ Compensation Commission found that the claimant was able to earn $13.78 per hour, the highest amount opined by his expert.
The Appellate Court found that in calculating “the average amount amount which he is earning or is able to earn in some suitable employment or business after the accident,” the Commission must first consider whether the claimant is currently employed.
“[I]f the claimant is working at the time of the calculation, the claimant must prove his actual earnings for a substantial period after he returns to work, and the Commission may apply his then current average weekly wage to the calculation.”
However, if the claimant “has not returned to work, he must prove what he is able to earn in some suitable employment,” based on “functional and vocational expert evidence.”
“Suitable employment is employment in which the claimant is both able and qualified to perform.”
The Court reversed the Commission’s calculation of the award because the evidence presented at hearing – that the claimant did not possess a driver’s license – showed that school bus driver was not a suitable occupation for the claimant.
Accordingly, the Court remanded the case to the Commission to recalculate its wage differential award based on an identifiable, suitable occupation for the claimant.
Cases cited by the Appellate Court in support:
Levato v. Illinois Workers’ Compensation Commission, 2014 IL App (1st) 130297WC Google Scholar.