Copperweld Tubing Products Co. v. Illinois Workers' Compensation Comm'n, 2010 Ill. LEXIS 624

(1st dist. 2010)

By: Keith J. Herman - Partner - Nyhan, Bambrick, Kinzie & Lowry

Updated: June 28, 2011


Petitioner was employed by Respondent as a mill operator.  On November 28, 2001, Petitioner had an accident involving the left arm/elbow.  He was diagnosed with left lateral epicondylitis and underwent three surgeries on the arm.  Petitioner’s treaters released him to return to work in August 2004 with the restriction of no lifting greater than 30 pounds.  An FCE performed in 2005 revealed that Petitioner could return to work at the light- to medium-demand level.  His mill-operator job required that he work at the heavy physical demand level.

Petitioner met with a vocational counselor, who noted that without professional assistance, Petitioner would likely be able to obtain a position paying between $8.00 and $12.00 per hour.  After it was determined that Respondent could not accommodate Petitioner, Petitioner conducted a self-directed job search which resulted in him finding a job paying $8.00 per hour for 40 hours per week at a security firm.  Shortly thereafter, Petitioner quit because his wife found a better job and they determined it was better for him to stay home with the family and allow her to go to work.  Petitioner did not look for another job.

At trial, Petitioner’s former co-worker testified that he and Petitioner both worked the same job for Respondent, similar hours, same shift and were paid the same hourly rate.  He estimated that he earned approximately $78,000.00 in 2005, which earnings included overtime that was worked on both a mandatory and voluntary basis.

The Arbitrator found that Petitioner was entitled to an 8(d)1 wage-differential award of $534.16 per week for the duration of his disability.  This figure was based upon the difference between his earnings as a security guard at $8.00 per hour and the $78,000.00 his co-worker testified that he had earned as a mill operator in 2005.  The Commission affirmed and adopted the Decision of the Arbitrator.  The Circuit Court of Cook County confirmed the Decision of the Commission.  Respondent appealed the wage-differential award, arguing that Petitioner voluntarily removed himself from the labor market and therefore was no longer suffering a loss in earning capacity.

The Appellate Court affirmed that Petitioner was entitled to a wage differential, but remanded the case to the Commission for further findings on the issue of the exact amount of the differential.

The Court first noted that an employee who voluntarily removes himself from the labor market does not necessarily preclude a wage-differential award.  Rather, the law is that a petitioner that makes a personal choice to accept a lower-paying job and does not prove he or she cannot find a better paying job is not entitled to a wage differential.  The Court went on to note that Section 8(d)(1) of the Act instructs the Commission to look at the amount the injured worker is earning or is able to earn in suitable employment or business after the accident:

Section 8(d)1

“If after the accidental injury has been sustained, the employee as a result thereof becomes partially incapacitated from pursuing his usual and customary line of employment, he shall receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, 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) (emphasis added).

The Court found that Petitioner met this burden through his self-directed job search, as well as the testimony of his vocational counselor.

However, the Court did find that the calculation of the amount of the wage differential was against the manifest weight of the evidence.  The Court noted that the similarly-situated employee’s estimate of his earnings included voluntary overtime.  The Court held that because the overtime was voluntary, it should not have used in the calculation for the wage differential.  The Court then remanded the case to comport with the proper calculation.

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