Copperweld Tubing Products Co. v. Illinois Workers' Compensation Commission

931 N.E.2d 762, 402 Ill. App. 3d 630, 341 Ill. Dec. 865, 2010 Ill. App. LEXIS 624
CourtAppellate Court of Illinois
DecidedJune 22, 2010
Docket1-09-1422 WC
StatusPublished
Cited by5 cases

This text of 931 N.E.2d 762 (Copperweld Tubing Products Co. v. Illinois Workers' Compensation 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
Copperweld Tubing Products Co. v. Illinois Workers' Compensation Commission, 931 N.E.2d 762, 402 Ill. App. 3d 630, 341 Ill. Dec. 865, 2010 Ill. App. LEXIS 624 (Ill. Ct. App. 2010).

Opinion

JUSTICE HOFFMAN

delivered the opinion of the court:

Copperweld Tubing Products Company (Copperweld) appeals from an order of the circuit court which confirmed a decision of the Illinois Workers’ Compensation Commission (Commission) that awarded the claimant, Jose Santoyo, wage differential benefits pursuant to section 8(d)(1) of the Workers’ Compensation Act (Act) (820 ILCS 305/8(d)(l) (West 2000)). For the reasons that follow, we reverse that portion of the circuit court’s judgment which confirmed the Commission’s calculation of the wage differential to which the claimant is entitled and remand this matter to the Commission for a recalculation of the claimant’s wage differential benefits.

The following factual recitation is taken from the evidence presented at the arbitration hearing held on July 19, 2006, and November 9, 2006.

The claimant was employed by Copperweld as a mill operator. His duties included setting up the machinery for production and required the use of a sledge hammer, crowbar, air tools, and wrenches.

The claimant testified that, on November 28, 2001, he was pulling a 35- to 50-pound spacer out of a shaft, when the spacer struck his body and dropped to the floor. According to the claimant, he immediately felt pain in his left elbow.

The following day, Copperweld sent the claimant to the Ingalls Occupational Health Clinic. He was diagnosed with a left elbow strain and was instructed to return to work with the restrictions of only occasional lifting or carrying more than 30 pounds and no repetitive use of his left arm.

The claimant returned to work, but noticed an increase in the pain in his left side following the accident. The claimant eventually came under the care of Dr. Henry Fuentes, an orthopedic surgeon who had previously treated him for an injury to his right elbow. When Dr. Fuentes examined the claimant on January 2, 2002, he diagnosed the claimant with left lateral epicondylitis. Dr. Fuentes removed the claimant from work and ordered occupational therapy.

After the therapy failed to relieve the claimant’s symptoms, Dr. Fuentes recommended surgery. On September 20, 2002, the claimant underwent an anterior submuscular transposition of his left ulnar nerve.

Following the surgery, the claimant continued to complain of pain and weakness in his left arm and hand. On December 11, 2002, another surgeon, Dr. Daniel Mass, performed a second submuscular transposition of the left ulnar nerve, as well as a lysis of the ulnar nerve and a nerve graft.

At the request of Copperweld’s insurance carrier, the claimant was examined by Dr. Brian Cole on August 4, 2003, and March 1, 2004. As of the second examination, Dr. Cole concluded that further surgical intervention of the claimant’s left ulnar nerve would be required.

On March 5, 2004, Dr. Mass performed a left ulnar nerve neurolysis with vein-wrapping. Dr. Mass released the claimant from his care on August 2, 2004, with the work restrictions of no lifting greater than 30 pounds with his left arm.

The claimant returned to Dr. Cole for a third time on November 30, 2004. On that occasion, Dr. Cole recommended that the claimant undergo a functional capacity evaluation (FCE). The FCE was performed on January 13, 2005, at Occupational and Hand Therapy, Ltd. The results of the FCE revealed that the claimant possessed the ability to work at the light- to medium-physical demand level; whereas, his job as a mill operator required a heavy-physical demand level.

At the request of his attorney, the claimant met with Edward Steffan, a vocational rehabilitation counselor, on October 25, 2004. Steffan issued a written report, noting that, without professional assistance, the claimant would likely be able to obtain a position paying between $8 and $12 per hour.

On August 17, 2005, the claimant met with Martin Power, a vocational rehabilitation counselor employed by Copperweld’s insurance carrier. Power concluded that the claimant could not return to work at Copperweld. Power also believed that the claimant could still obtain a job as a light- to medium-level production worker, such as an office cleaner or security guard.

In 2005, the claimant commenced a self-directed job search. On his own initiative, the claimant enrolled in a security guard training course in February of 2006. Following the completion of this course, the claimant was able to obtain employment as a security guard with Securatex, Ltd. (Securatex). The claimant testified that he was paid $8 per hour and worked 40 hours a week. He also stated that the job was within his physical restrictions.

The claimant worked at Securatex for 21k months. At the arbitration hearing, the claimant testified that he quit when his wife found a “better job,” stating that “[i]t was better for our family for me to stay home and she go to work.” The claimant admitted that he had not searched for another job since leaving Securatex and had been receiving social security disability benefits since 2004.

The claimant presented the testimony of Duane Lee, a former coworker at Copperweld. Lee testified that he and the claimant were both mill operators at Copperweld, they both worked similar hours, they both worked the same shift, and they both were paid the same hourly rate. Lee estimated that he earned approximately $78,000 in 2005. He stated that he has worked and continues to work overtime. Lee admitted that, while a portion of the overtime he worked was mandatory, he worked some of the overtime on a voluntary basis.

A copy of the applicable collective bargaining agreement was admitted into evidence. The agreement contained a wage schedule for numerous employees, including mill operators.

At the conclusion of the hearing, the arbitrator found that the claimant sustained injuries on November 28, 2001, arising out of and in the course of his employment with Copperweld. The arbitrator awarded the claimant temporary total disability (TTD) benefits for 2191/7 weeks. The arbitrator also ordered Copperweld to pay: (1) $1,952.39 for necessary medical expenses; (2) $43.74 for travel expenses; and (3) $169 for reasonable vocational rehabilitation expenses. Finally, the arbitrator entered a wage differential award of $534.16 per week, commencing on March 17, 2006, and continuing for the duration of the claimant’s disability. The wage differential award was calculated based upon the difference between the claimant’s wages of $8 per hour, or $320 per week, as a security guard at Securatex and the $78,000 Lee testified he earned as a mill operator in 2005.

Copperweld filed a petition for review of the arbitrator’s decision before the Commission. In a unanimous decision, the Commission affirmed and adopted the decision of the arbitrator.

Copperweld then sought judicial review of the Commission’s decision in the circuit court of Cook County. The circuit court confirmed the decision of the Commission, and this appeal followed.

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931 N.E.2d 762, 402 Ill. App. 3d 630, 341 Ill. Dec. 865, 2010 Ill. App. LEXIS 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/copperweld-tubing-products-co-v-illinois-workers-compensation-commission-illappct-2010.