The Appellate Court 3rd District
held that the Commission erred in failing to award wage differential
benefits to claimant, noting that despite defendant’s contention, there
was no affirmative requirement under section 8(d)1 of the Workers’
Compensation Act that a claimant conduct a job search. Evidence of a
claimant’s job search was but one way to show impairment of earnings.
The court further held that defendant was entitled to a credit against
the permanent partial disability award for overpayment of temporary
total disability benefits where there was no evidence that claimant
participated in a group plan.
Claimant was hit in the left elbow with
shotgun pellets while working for defendant as a tree trimming crew
foreman. At the time of the injury, he was 41 years old, had completed
an apprenticeship with the Internal Brotherhood of Electrical Workers
and had held jobs as part of a spray crew and tree trimming crew. He
underwent several surgeries but was unable to return to his former
position due to pain and swelling in his shoulder. He testified that he
telephoned his local union four times between September 1994 and
September 1995 in an attempt to find work. He also contacted several
employers. All these efforts were unsuccessful in leading to employment.
As of the date of the arbitration hearing, claimant testified he was
unable to lift more than five pounds and could not use his left hand for
support or to grip
In January 1996, he conducted another job
search. He applied to several factories where the starting wage was
$5.50 per hour. He also regularly returned to the places he previously
applied. Most of those employers paid minimum wage. Although claimant
was not medically restricted from driving, he limited his employment
search to the area near his home because he experienced arm discomfort
when driving more than 10 to 15 miles. Claimant also contacted employers
identified in a labor market survey prepared on defendant’s behalf. He
eventually obtained full-time employment at a garage earning $5.50 per
hour. He testified that arm discomfort often prevented him from working
the entire week.
The arbitrator found claimant incapacitated
to the extent of 60 percent loss of use of a man asa whole pursuant to
section 8(d)2, that defendant was responsible for unpaid medical
expenses and that no credit was due for overpayment of temporary total
disability. The Commission modified the temporary total disability award
and credited defendant for overpayment of benefits. The Circuit Court of
Bureau County confirmed the decision of the Commission.
The Appellate Court 3rd District
held that the Commission’s failure to award wage differential benefits
pursuant to section 8(d)1 was against the manifest weight of the
evidence. In so holding, the court explained that the plain language of
section 8(d) prohibited the Commission from granting an award based on
percentage of the "person as a whole" where the claimant presented
sufficient evidence to show a loss of earning capacity. The only
exception was where the claimant waived his right to recover under
section 8(d)1. In the instant case, there was no indication that
claimant waived his right to a wage differential award. The court went
on to determine that claimant provided ample evidence of the first prong
of the wage differential award-that he was unable to return to his
"usual and customary line of employment" as a tree trimmer. Both is
treating and examining doctors and a union representative testified to
this fact. The functional capacity evaluation also indicated claimant
would be unable to return to his pre-injury work. Next, the court found
claimant met the second requirement-an impairment of earning
capacity-noting that his pre-injury wages were $891 per week, but
following his injury he earned only $220 per week.
The court rejected defendant’s argument that
because claimant did no secure suitable employment within his
restrictions, he failed to establish his true earning capacity. The
court explained that there was no affirmative requirement under section
8(d)1 that a claimant even conduct a job search. Evidence of a
claimant’s job search was but one way to show impairment of
earnings. Here, evidence indicated that
claimant regularly inquired about positions within his restrictions.
Although claimant limited his search to his local area, a labor market
survey demonstrated, given claimant’s education, experience and
restrictions, a search of a larger geographical area was unlikely to
locate a job with a wage substantially greater than the wage paid at the
job claimant found near his home.
The court went on to affirm the Commission’s
decision regarding the temporary total disability award based on the
treating doctor’s original date of maximum medical improvement. Although
claimant’s doctor later suggested that claimant reached maximum medical
improvement 14 months after the initial date, he also testified that
claimant’s condition remained virtually unchanged between his October
1994 and October 1995 visits. Based on this evidence, the court
concluded that the Commission could find claimant’s condition stabilized
as of October 1994
