Bohannon v. Industrial Commission

606 N.E.2d 527, 237 Ill. App. 3d 989, 179 Ill. Dec. 695, 1992 Ill. App. LEXIS 1888
CourtAppellate Court of Illinois
DecidedNovember 20, 1992
Docket1-92-0410WC
StatusPublished
Cited by9 cases

This text of 606 N.E.2d 527 (Bohannon v. Industrial Commission) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bohannon v. Industrial Commission, 606 N.E.2d 527, 237 Ill. App. 3d 989, 179 Ill. Dec. 695, 1992 Ill. App. LEXIS 1888 (Ill. Ct. App. 1992).

Opinion

PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant Richard Bohannon sought administrative review of the Industrial Commission’s (Commission’s) decision in which he was awarded lid2/? weeks’ temporary total disability (TTD) benefits, $4,355.20 in medical expenses and a wage-differential award of $293.61 per week under the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). He contends (1) no maximum limit applies to a wage-differential award pursuant to section 8(d)(1) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(1)) and (2), if a maximum rate does apply to a wage-differential award pursuant to that section of the Act, the proper maximum rate is the maximum TTD rate (see Ill. Rev. Stat. 1985, ch. 48, par. 138.8(b)(1)), here $453.33 per week, rather than the permanent partial disability (PPD) maximum rate (see Ill. Rev. Stat. 1985, ch. 48, pars. 138.8(d)(4), (b)(4)), here $293.61 per week, utilized by the Commission in its decision. We affirm.

Claimant is 49 years old and has been a journeyman carpenter for 15 years. On May 5, 1986, he fell off a scaffold and injured himself. Claimant suffered a fracture of the left lateral tibial plateau with joint effusion, and on May 13, 1986, he underwent surgery where three pins and a metal screw were placed in Ms knee to repair the fracture. Claimant filed Ms application for adjustment of claim on January 21,1987.

On September 7, 1987, claimant was admitted to Northwestern Community Hospital, where he had a second surgery on Ms knee. The three pins and the metal screw were removed from claimant’s knee. A CT scan was also performed on his back wMch revealed a small central and left herniation of a disc at level L4-L5.

Claimant began rehabilitation counseling with James Boyd on May 8, 1987. Boyd located a position for claimant at Gemini Display Company as an assembler of fluorescent light fixtures in October 1987. The pay rate for that position was $4.50 an hour. Claimant worked there for one week, but was unable to remain on the job as the pain and numbness in Ms left leg and back was getting worse. Claimant had one more appointment with Boyd on November 19, 1987, and then ceased contact with him.

Claimant began a job search on. Ms own and on July 26, 1988, secured a position at Thornton Oil Company, a gas station in Franklin Park, Illinois. Claimant was hired as a casMer at $4 an hour, and he worked between 32 and 40 hours per week. However, claimant was laid off from that position because the shift he worked was discontinued. Next, claimant obtained a position at Chelsa Motor Inn in Des Plaines, Illinois, in October 1988. Claimant was employed there as a desk clerk at an hourly rate of $4.25 and worked five days a week, eight hours per day. At the hearing before the Commission on April 13, 1989, claimant was still employed by Chelsa Motor Inn. As of June 1, 1987, the urnon scale for carpenters was raised from $17 per hour to $19 per hour. As of June 1, 1988, the scale rose to $19.75 per hour, and as of June 1, 1991, the scale was $21 per hour.

On November 30, 1988, the arbitrator issued a decision finding claimant was temporarily totally disabled for a period of 756/? weeks and was entitled to $453.33 per week for that period. The arbitrator further found claimant was entitled to the sum of $293.61 a week for a further period of 250 weeks pursuant to section 8(d)(2) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(2)) because the injury sustained caused the complete and permanent disability equal to 50% loss of the man as a whole.

Respondent filed a petition for review before the Commission, wMch affirmed and modified the arbitrator’s decision. The Commission found claimant was temporarily totally disabled from May 6, 1986, to July 26, 1988, when he obtained employment as a gas station casMer, minus the one week between October 19, 1987, and October 26, 1987, when claimant was employed by Gemini Display Company. The Commission further found claimant should be compensated under section 8(d)(1) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.8(d)(1)) because, as a result of his accidental injuries, he was incapacitated from pursuing his usual and customary line of employment as a journeyman carpenter. The Commission found claimant was entitled to receive a sum equal to 662/3% of the difference between the average amount 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 he is earning or able to earn in some suitable employment after the accident. However, the Commission concluded this sum was limited to the maximum weekly compensation rate which, pursuant to the Act, was $293.61.

The Commission further concluded that for the 113/7-week period between July ,26, 1988, and October 14, 1988, claimant earned $160 per week as a cashier. As a journeyman carpenter, he could have earned $790 per week. Sixty-six and two-thirds percent of the difference was $420, but as that sum was subject to the maximum rate (see Ill. Rev. Stat. 1985, ch. 48, par. 138.8(b)(4)), claimant was only entitled to $293.61 per week for that period. Likewise, between October 15, 1988, and the date of the review hearing, the claimant earned $170 per week at the Chelsa Motor Inn. As a journeyman carpenter he could have earned $840 per week. Sixty-six and two-thirds percent of the difference was $446.67 but again, that sum was limited to $293.61 per week for that period.

Accordingly, claimant was ordered to receive $453.33 a week for a period of 1142/7 weeks, that being the period of temporary total incapacity to work under section 8(b)(1) of the Act. Claimant was further ordered to receive $293.61 for a period of 373h weeks and, thereafter, a sum not to exceed $293.61 per week, or 662/s% of the difference between the amount he would be able to earn in the full performance of his duties in the occupation he was engaged in at the time of the accident and the average amount he is earning or is able to earn in some suitable employment after the accident pursuant to section 8(d)(1) of the Act, subject to the limitations of section 8(b) of the Act.

Claimant sought administrative review of the Commission’s decision, and on January 23, 1992, the circuit court issued its opinion confirming the decision of the Commission. This appeal followed.

Claimant first contends that no maximum limit should apply to a wage-differential award pursuant to section 8(d)(1) of the Act. He asserts the legislative intent of that section, its wording, and public policy consideration support his proposition.

Section 8(d)(1) of the Act provides, in pertinent part:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dibenedetto v. Illinois Workers Compensation Commisssion
2015 IL App (1st) 133233WC (Appellate Court of Illinois, 2015)
Dibenedetto v. Illinois Workers Compensation Commisssion
2015 IL App (1st) 133233WC (Appellate Court of Illinois, 2015)
Flynn v. Industrial Commission
791 N.E.2d 1301 (Appellate Court of Illinois, 2003)
Modern Drop Forge Corp. v. Industrial Commission
671 N.E.2d 753 (Appellate Court of Illinois, 1996)
Honda of Lisle v. Industrial Commission
646 N.E.2d 318 (Appellate Court of Illinois, 1995)
Forest City Erectors v. Industrial Commission
636 N.E.2d 969 (Appellate Court of Illinois, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
606 N.E.2d 527, 237 Ill. App. 3d 989, 179 Ill. Dec. 695, 1992 Ill. App. LEXIS 1888, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohannon-v-industrial-commission-illappct-1992.