A combination of Wage Loss Differential and Permanent Total Disability

 

In Chlada vs Illinois Workers Compensation Commission the Workers Compensation Commission ruled that a person can get a wage loss differential and a permanent total claim.  The case involved two injuries.  The first injury resulted in the person being paid less than before the injury. After the second injury the worker could not work at all.

In Chlada the injured worker had an injury to his low back first, lifting beer as a beer truck driver. The worker got hurt again on October 23, 2003, when he hurt his neck working in the warehouse.  The worker filed two claims, one for each injury. He worked light duty until January 12, 2003, when his doctor took him off work because of his second injury. The worker had neck surgery on June 17, 2003.  The worker’s doctor imposed permanent restriction of no lifting over 58 pounds and only occasional overhead reaching on January 14, 2004.  The employer refused to take the worker back after the doctor imposed the restrictions.  Petitioner did an extensive job search of over 1,000 contacts, but he did find a job and did not work since the January 13, 2003 date.

 

The Commission ruled that his right to wage loss differential benefits began January 13, 2003 and ended April 22, 2004, after a remand. The Commission found the worker was permanently totally unable to work after that date.  The circuit court found the Commissions denial of benefits after April 22, 2004 was against the manifest weight of the evidence, and set aside the order, ordering wage differential ending January 13, 2003, “at which time PTD [Permanent Total Disability] benefits began.”

The circuit court and the Commission agreed that the claimant count not get wage differential benefits account of his back injury while he was getting permanent total benefits on his later neck injury. Claimant earned less as a warehouseman than he did as a beer truck driver. Nevertheless, the circuit court had concluded that, as of January 13, 2003, the claimant could not show he was earning or able to earn an amount in some suitable employment or business – because he could not work.

Claimant felt he should get a wage differential and permanent total disability benefits at the same time.

The appellate court agreed with the claimant, reversing the circuit court, reasoning that he had sustained a diminished earning capacity due to the July 1999 work injury, which rendered him unable to work as a delivery truck driver and required him to work in the warehouse at a lower salary.  Accordingly, he would not be made whole if he were unable to collect his wage loss differential. He would have to base his earnings for the permanent total on his wage he was last making – the reduced warehouse wage, as opposed to what he made at the time of the first injury. The appellate court concluded that it is more reasonable to calculate the wage loss differential, award the 2/3 of the wage loss, and then calculate the permanent total on the lower wage.

The respondent’s claim that there is a double recovery is misplaced.  The worker got a reduction in the amount of the permanent total recovery because his wage was reduced.  The worker, in the wage differential, is entitled to 2/3 of the difference between what he used to make as a beer truck driver and what he made in the warehouse.  The permanent total is then based on the lower wage in the warehouse.

By the way, this case took a long time for the parties to resolve.  The first injury occurred in 1999. the appellate court filed its opinion July 8, 2016

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