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Illinois Industrial Commission found
most equitable
method of calculating Section 8(d)1 award for
salesperson, who was injured after only 11 days of
work, was to base wage differential on her actual earnings
A majority of the
Commission rejected the arbitrator’s approach of calculating
claimant’s wage differential based on the wages of other salespeople
at defendant’s business who were also earning straight commission.
Rather, the majority chose to calculate benefits based on claimant’s
actual wages earned during her 11 days of preinjury employment with
defendant. The dissent argued that in calculating the wage
differential, the majority disregarded the evidence showing what
claimant would have been able to earn, but for her injury, and
disregarded the well-established principle that the Workers’
Compensation Act should be liberally construed in favor of the
employee.
Claimant, a
salesperson, worked for defendant for 11 days as a full-time employee
before injuring her right foot. She was paid a straight commission of
8% on sales she made. She stated that, in her short time with
defendant, she became one of the top associates and had developed a
clientele. At the time of hearing, claimant was restricted to
working part time. She works an average of 18 to 20 hours a week.
The arbitrator awarded
wage differential benefits under Section 8(d)1 of the Workers’
Compensation Act. In calculating what claimant would be able to earn,
the arbitrator added the year-to-date sales of the four top
salespeople at defendant, multiplied this figure by the 8% commission,
and divided it by four to reach an average amount earned. The
arbitrator concluded claimant was entitled to a wage differential of
$290 per week under Section 8(d)1.
A majority of the
Commission modified the award, finding claimant was entitled to a wage
differential of $109 per week. In so finding, the majority determined
the most equitable method of calculating the wage-differential would
be based on claimant’s actual earnings. The majority noted it was
claimant’s first sales position and that she had never held a job
before where she earned commissions. Also, she only worked for
defendant 11 days before she was injured. Based on this new
employment, which was of such short duration, the majority found
claimant clearly failed to establish that the wages earned by other,
more experienced employees were relevant to determining her wage
differential. The majority found it to be pure conjecture and
speculation to suggest that claimant, an inexperienced salesperson,
would earn as much or more than experienced salespersons.
Furthermore, the
majority noted Section 8(d)1 referred to “the average amount which
claimant is earning or is able to earn in some suitable employment or
business after the accident.” Claimant only established what she
earned, both before and after the accident. Therefore, the more
accurate and reliable method of determining claimant’s Section 8(d)1
wage differential was to compare her earnings prior to the accident to
her earnings afterward. The difference is the best measure of her
actual proven wage loss, the majority explained. The majority found that
to use the novel method advanced by claimant and used by the arbitrator
would unjustly compensate claimant for an earning capacity she had
clearly not proven by the preponderance of credible evidence.
The dissent argued that
in calculating the wage differential, the majority disregarded the
evidence showing what claimant would have been able to earn, but for her
injury, and disregarded the well-established principle that the Workers’
Compensation Act should be liberally construed in favor of the employee.
Further, the dissent contended the approach by the arbitrator was
neither “novel” nor “creative,” for the Commission has repeatedly based
wage differentials on the amount the claimant showed he would have been
able to earn but for the injury. The dissent also cited Forest
City Steel Erectors v. Industrial Commission, in which the
Appellate Court of Illinois calculated the wage differential using
the amount the claimant would have been earning as an ironworker had he
been able to remain in the job.
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