Summary
The Illinois Appellate Court, Third District, Industrial Commission Division, held that Marianne Smith was entitled to a wage-differential award under section 8(d)(1) of the Illinois Workers’ Compensation Act rather than a permanent partial disability award under section 8(d)(2). The court found that the employer had artificially increased Smith’s wages to avoid a wage-differential award and reinstated the arbitrator’s award.
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Questions Presented
- Whether Smith established partial incapacity preventing her from pursuing her usual and customary line of employment under section 8(d)(1) of the Illinois Workers' Compensation Act.
- Whether Smith established an impairment of earnings or earning capacity sufficient to support a wage-differential award under section 8(d)(1), notwithstanding the employer's later artificial wage increases.
- Whether the Industrial Commission's decision to award permanent partial disability benefits under section 8(d)(2) instead of affirming the arbitrator's wage-differential award was contrary to the manifest weight of the evidence.
Holdings
- Smith established partial incapacity under section 8(d)(1) because her work-related shoulder injury prevented her from obtaining the weaponry and physical-agility recertification required for her former security supervisory officer position.
- Smith established impaired earning capacity because her actual capacity, given her work restrictions, was represented by the $9.75-per-hour senior-watch-person position, not by later wage increases that were artificially provided without corresponding changes in duties or performance.
- The Commission's failure to affirm the arbitrator's section 8(d)(1) wage-differential award was contrary to the manifest weight of the evidence.
Key quotations
“We believe, therefore, that claimant proved impaired earning capacity, and as a result, the Commission's decision to not affirm the arbitrator's WD award was against the manifest weight of the evidence.”
“Based upon the foregoing, the decision of the circuit court of LaSalle County, which confirmed the Commission's PPD benefit award, is reversed and the arbitrator's WD award is reinstated.”
Factual background
Smith injured her right shoulder on March 26, 1992, while attempting to break an airlock seal at her employer's nuclear-reactor facility. After surgery and continuing treatment, she could not pass the weaponry and physical-agility tests required for her former position as a security supervisory officer. She returned to a less strenuous senior-watch-person position at $8.55, later $9.75, per hour, but the employer raised her pay to $15 per hour shortly before the hearing without changing her duties; the arbitrator found the raises were intended to avoid a wage-differential award.
Procedural history
The arbitrator found that Smith's shoulder injury arose out of and in the course of employment and awarded temporary total disability benefits, wage-differential benefits, medical expenses, and penalties. The Industrial Commission vacated the disputed temporary-total-disability award for part of the claimed period, vacated the wage-differential and penalties awards, and awarded permanent partial disability benefits under section 8(d)(2). The circuit court reinstated the disputed temporary-total-disability award but confirmed the Commission's permanent-partial-disability award. The appellate court reversed and reinstated the arbitrator's wage-differential award.