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Commission Finds Wage Differential Award Speculative, Awards § 8(d)2 MAW Instead

In Nebelsick v. Smith Specialized Heavy Hauling, 10 IL.W.C. 17711 (Ill. Indus. Com’n Oct. 24, 2013), the Commission found that the Arbitrator’s wage differential award based upon a hypothetical $12.00 per hour job for the claimant was not substantiated by the evidence, and replaced it with a PPD award of 45% loss of the person as a whole under section 8(d)2 instead.

in this case, the claimant fell on his shoulder on October 14, 2009, causing a rotator cuff tear.  Following surgery and conservative treatment, the claimant was given permanent restrictions of no lifting or carrying more than ten pounds with the right arm, no more than twenty-five with both arms, and no reaching or use of the right arm above shoulder or head height.  The respondent provided vocational rehabilitation beginning in October of 2011 and lasting through June of 2012.  The claimant testified that he completed approximately 200 applications during his vocational rehabilitation and another 200 during his self-directed job search, and that most of these were submitted online and involved jobs in the trucking industry.

The vocational counselor testified that there were seven viable open positions in the claimant’s area as of August of 2012, and that these ranged in pay from $10.00 per hour to $1,100 per week.  She also testified that the claimant was merely “going through the motions” regarding his efforts and that the claimant was resistant to constructive feedback on how he could his improve his job search.  Lastly, she opined that the claimant was employable and that a stable labor market existed for him.

The Arbitrator found that the claimant was not entitled to permanent total disability benefits, but that he was capable of obtaining a position that would pay $12.00 an hour.  Accordingly, he was awarded wage differential benefits of $533.33 per week.

However, the Commission found that the evidence was insufficient to establish a wage differential award.  The Commission noted that the vocational expert opined that that the claimant could obtain a job paying up to $25.00 per hour and stated, “We do not find any persuasive evidence that Petitioner is only able to earn wages at the lowest end of the income spectrum in entry level positions that are outside of his areas of training and experience, and we find the Arbitrator’s award to be speculative.”  Id. at 1.  The Commission replaced the wage differential award with an award for 45% loss of the person as a whole, or $149,562.00, based upon section 8(d)2 of the Act.

This case indicates that in claims where a vocational expert testifies that the claimant could obtain employment in a range of different wages, the respondent may be able to obtain a loss of the whole person award based upon section 8(d)2 of the Act, rather than a wage differential award that is foundered on a hypothetical wage that the claimant could earn and provided the petitioner has a questionable job search and no other evidence in his favor.

Thanks to attorney Michael Bantz for this summary.  If readers have any questions regarding this case, they can be sent to Michael at mbantz@inmanfitzgibbons.com.

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