A majority of the
Commission held that claimant, who suffered a work-related torn rotator
cuff, was entitled to benefits under Section 8(d)1 of the Workers’
Compensation Act. The dissent argued it was improper for the Commission
to enter an award for loss of earnings capacity when claimant had a
union grievance pending that asserted he wanted and could perform his
former job.
Claimant injured his left
shoulder while at work. He was diagnosed with a torn rotator cuff and
had the shoulder surgically repaired. He returned to work performing
one-handed work. He testified he attempted to perform another job but
stopped working after he noticed pain in his left arm. Defendant than
terminated his employment. The company doctor continued to restrict
claimant’s work activities to limited use of the left arm and no
overhead work. Claimant subsequently obtained employment at a cleaning
establishment earning $250 per week. Claimant offered into evidence his
union contract, which showed he would be earning $19.75 per hour at
defendant, or $767 per 40 hour week.
The arbitrator awarded
benefits under Section 8(d)1, finding claimant was partially
incapacitated from pursuing his usual and customary line of employment.
The arbitrator also awarded temporary total disability for 93- 3/7
weeks.
A majority of the
Commission corrected the temporary total disability rate and affirmed on
all other issues.
The dissent argued that
because the injury was to the shoulder, the award should be under
Section 8(e), not Section 8(d)1. The dissent further argued it was too
soon to award a loss earnings based on a wage differential because
claimant has a formal union grievance pending demanding his old job
back. The dissent explained that in filing his grievance, claimant
"obviously" asserts he is capable of performing his former job. If the
Commission is to believe him, his disability creates no wage
differential or Section 8(d)1 award, the dissent ruled.
