2017 IL App (1st) 160002WC
Opinion filed: February 24, 2017
NO. 1-16-0002WC
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
WORKERS' COMPENSATION COMMISSION DIVISION ________________________________________________________________________
CARL CRITTENDEN, ) Appeal from the ) Circuit Court of Appellant, ) Cook County. ) v. ) No. 15-L-50296 ) THE ILLINOIS WORKERS' ) Honorable COMPENSATION COMMISSION, et al. ) Edmund Ponce De Leon, (City of Chicago, Appellee). ) Judge, presiding. ________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Harris concurred in the judgment and opinion.
OPINION
¶1 The claimant, Carl Crittenden, appeals the judgment of the circuit court of Cook
County, which confirmed the decision of the Illinois Workers' Compensation
Commission (Commission), in favor of the employer, the City of Chicago (City). An
arbitrator awarded the claimant, inter alia, a wage differential pursuant to section 8(d)(1)
of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(1) (West 2012)), and the
Commission reduced the amount of the wage differential. The circuit court entered a 2017 IL App (1st) 160002WC-U
judgment confirming the Commission's decision. The claimant now appeals the circuit
court's judgment. For the following reasons, we reverse, vacate the Commission's
decision, and remand this matter to the Commission with directions.
¶2 FACTS
¶3 The claimant filed an application for benefits under the Act. 820 ILCS 305/1 et
seq. (West 2012)). An arbitration hearing was conducted on January 4, 2013, wherein the
following evidence was presented. The claimant testified that he was employed by the
City as a sanitation laborer for 27 years. He injured his lower back on April 11, 2008,
while bending over, lifting a bag of compost, and throwing it into the back of a garbage
truck.
¶4 After receiving medical treatment, the claimant saw Dr. Kern Singh on September
3, 2009. Dr. Singh recommended that the claimant undergo a functional capacity
evaluation (FCE), which was conducted on October 17, 2009. The FCE indicated that
the claimant reported current work limitations of 20 pounds of lifting—with additional
limitations on bending and standing—and such restrictions could not be accommodated
by his employer. The FCE concluded that the claimant could only meet light physical
demands and could not satisfy the physical requirements of his previous job. The FCE
further indicated that the claimant was at maximal functional improvement, and
recommended that he never lift more than 20 pounds on an occasional basis; and up to
approximately 13 pounds on a more frequent basis. Further restrictions included no
pushing or pulling with greater than 40 pounds of force; no frequent or repetitive bending
2 2017 IL App (1st) 160002WC-U
or twisting; positional changes as needed to avoid constant standing, walking, or sitting
over a full workday; and no walking for more than 10 minutes.
¶5 The claimant returned to Dr. Singh on March 18, 2010. After conducting an
independent medical re-examination (IME), Dr. Singh concurred that the claimant is able
to perform only light duty work—with a 20 pound lifting restriction—and advised that
the restriction is permanent and the claimant has reached his maximum medical
improvement (MMI). The claimant was subsequently examined by Dr. Samuel Chmell
on March 27, 2010. Dr. Chmell agreed that the claimant had reached his MMI and can
never return to his regular job due to the permanent physical restrictions.
¶6 The claimant testified that he met Steven Blumenthal, who conducted a vocational
rehabilitation assessment on July 27, 2010. Blumenthal did not testify at the hearing, but
his report was submitted by the claimant and admitted into evidence as Petitioner's
Exhibit 7. The claimant testified that he told Blumenthal that he lost his driver's license
following a DUI. Blumenthal's report states that the claimant informed him that he was
arrested for DUI in 1995, that his driver's license was suspended after he received two
speeding tickets, and that he expected to have his license reinstated in December 2010.
The claimant told Blumenthal that he graduated from high school in 1980, but he testified
at the hearing that he had neither graduated nor completed his GED.
¶7 Blumenthal's detailed report contains an array of information, including
background and medical information based on his interview with the claimant as well as
the results of numerous vocational evaluation tests. Regarding the claimant's work
history, Blumenthal's report states that during the six months immediately preceding his 3 2017 IL App (1st) 160002WC-U
injury, he worked part-time cleaning a hospital, where he earned $12 per hour. He also
worked part-time as a customer service supervisor for Target from 1997 to 2003, earning
$11 per hour. The claimant informed Blumenthal that he is currently able to perform
customer service work.
¶8 Blumenthal lists several occupations in his report that he opines may be suitable
for the claimant in his current physical condition. These include cashier, retail
salesperson, counter and rental clerk, hotel, motel, and resort desk clerk, school bus
driver, and security guard. Blumenthal lists, based on data from the Illinois Department
of Employment Security, the entry hourly wage and the median hourly wage for each
occupation. However, Blumenthal notes as follows with regard to these positions:
"***it is also very clear that [the claimant] will require specialized job placement
assistance to identify job settings where his physical abilities can be
accommodated by the employer. Certain job descriptions [sic] as an unarmed
security guard in a gated community or industrial guard shack where [the
claimant] could sit/stand as needed, or as a school bus driver where he could get in
and out of the bus to change positions would be consistent with his documented
physical abilities [sic] ([the claimant] stated he enjoyed driving workers around in
the past). Customer service and cashiering, or even hotel clerk positions would
require specific accommodations being made by the employer."
¶9 Blumenthal notes that the claimant would be a good candidate for vocational
rehabilitation job placement services. The report concludes that the claimant will earn
$8.25 to $13.78 per hour. Blumenthal notes earlier in his report that $8.25 was the 4 2017 IL App (1st) 160002WC-U
current minimum wage in Illinois at the time of the report. The highest median wage
listed in Blumenthal's list of suggested occupations for the claimant is $13.78, the median
wage for a school bus driver.
¶ 10 Julie Bose testified on behalf of the City that she is employed by MedVoc
Rehabilitation as a rehabilitation counselor. She met the claimant on October 3, 2011,
and conducted an initial vocational rehabilitation evaluation. At the meeting, the
claimant informed Bose that he never graduated from high school nor obtained a GED.
Accordingly, Bose recommended a GED program so the claimant could obtain a high
school diploma and have more job opportunities. Bose additionally recommended
computer classes and job placement services. She acknowledged that the claimant could
not return to his previous job due to his physical limitations, and noted his desire to return
to work in retail and customer service.
¶ 11 Bose testified that, as part of his program, the claimant was asked to contact a
minimum of 10 prospective employers per week, with half of those in person. Bose
explained that MedVoc sends weekly job leads. She recommended that the claimant
follow up with all of the job leads, and send confirmations to MedVoc as he completed
applications for employment. After the evaluation, Bose had only indirect contact with
the claimant by reviewing his weekly job logs. She indicated that the claimant was not
fully compliant with the program and that his level of compliance decreased over time.
Bose specified that by April 2012, the claimant was not submitting attendance sheets
from the GED classes, nor any documentation on the weekly job leads. Bose further
noted the inconsistencies regarding his alleged contacts with potential employers. For 5 2017 IL App (1st) 160002WC-U
example, the claimant stated that he personally went to a certain company on March 23,
2012, but the company had relocated in 2008, making it impossible for the claimant to
have contacted the company at the alleged location.
¶ 12 Bose testified that when she first met with the claimant, he informed her that he
had two recent DUIs and no driver's license. Knowing that employers generally require
reliable transportation, Bose asked the claimant about the possibility of having his
driver's license reinstated. The claimant replied that he could not get his license back any
time soon. To Bose's knowledge, the claimant never obtained his driver's license while
participating in the program.
¶ 13 Bose admitted that none of the job searches submitted to her by the claimant
revealed what the jobs paid and that none of her reports provide the wages of any of the
suggested jobs because employers do not provide such information until after an
interview and sometimes only concurrent with a job offer. The City offered no evidence
of the claimant's post-injury earnings potential.
¶ 14 Following the hearing, the arbitrator found, inter alia, that the claimant sustained
injuries on April 11, 2008, that arose out of and in the course of his employment with the
City. The arbitrator further found that the claimant was partially incapacitated from
pursuing his usual and customary line of employment as a result of the accident, and
accordingly, is entitled to benefits under section 8(d)(1) of the Act (820 ILCS 305/8(d)(1)
(West 2012)). The arbitrator found that the claimant's injuries resulted in a loss of
earnings as provided in section 8(d)(1), and proceeded to calculate the amount of the
claimant's wage differential. In so doing, the arbitrator noted that there is no dispute that 6 2017 IL App (1st) 160002WC-U
the claimant would be earning $32.79 per hour if he were able to perform his job with the
employer. The arbitrator noted that the vocational experts agreed that cashier and
customer service jobs should be targeted for the claimant and that the claimant had
earned $11.00 per hour when he left his part-time job at Target. Additionally, the
arbitrator noted that Blumenthal gave a range of projected earnings of $8.25 to $13.78 per
hour. The arbitrator then stated that "[t]he arbitrator selects $11.00 per hour as a
reasonable wage. 1" The arbitrator then arrived at a wage differential rate of $581.06 per
week "by multiplying $32.79 by 40 hours to arrive at $1,311.60, subtracting $440.00
($11.00 per hour x 40) to arrive at $871.60, and dividing that by 2/3. 2" Accordingly, the
arbitrator ordered the City to pay the claimant wage differential benefits in the amount of
$581.06 per week from April 9, 2012, through January 4, 2013, and continuing thereafter
for the duration of the claimant's disability.
¶ 15 The City sought review of the arbitrator's decision before the Commission. On
review, the Commission found, inter alia, as follows:
1 We note that the arbitrator could have selected $11.00 based on the evidence that the
claimant earned this wage at his past job at Target or by averaging the range suggested
by Blumenthal ($8.25 + $13.78 = $22.03/2 = $11.015).
2 We note that rather than dividing $871.60 by 2/3, the arbitrator actually found 2/3 of
$871.60 by dividing $871.60 by 3, which equals $290.53, and multiplying that by 2,
which equals $581.06.
7 2017 IL App (1st) 160002WC-U
"Taking the evidence as a whole, the Commission agrees that the [claimant] has
clearly shown entitlement to a wage differential[;] however[,] his lack of effort in
obtaining alternative suitable employment leads us to determine that he is capable
of earning the highest amount that Mr. Blumenthal opined he was capable of
earning, $13.78 per hour. We note that while the Respondent could have initially
provided more assistance to the [claimant] than it did, but (sic) this does not
absolve the [claimant's] responsibility to do his best and give his best effort in
finding alternative employment. In this case, we do not believe he provided such
effort, and as a result have determined the proper weekly wage differential should
be $506.93 per week." 3
¶ 16 The claimant appealed the Commission's decision to the circuit court of Cook
County, which confirmed the Commission's decision on December 17, 2015. The
claimant now appeals to this court.
¶ 17 ANALYSIS
¶ 18 The sole issue on appeal is whether the circuit court erred by confirming the
Commission's decision regarding the amount of the wage differential award. Initially, we
note the parties disagree regarding the standard of review. The claimant contends that the
3 In order to arrive at $506.93 per week, the Commission multiplied $32.79 by 40 hours to
arrive at $1,311.60, subtracting $551.20 (13.78 x 40) to arrive at $760.40, and finding
2/3 of that number by first dividing by 3 and then multiplying by 2 ($760.40/3 =
253.46 x 2 = $506.93.)
8 2017 IL App (1st) 160002WC-U
issue is one of statutory interpretation and is reviewed de novo. See Cassens Transport
Co. v. Industrial Comm'n, 218 Ill. 2d 519, 524 (2006). On the other hand, the City argues
that the Commission's calculation of an employee's wage differential award is a factual
finding, which will not be set aside on review unless it is against the manifest weight of
the evidence. See Copperweld Tubing Products, Co. v. Illinois Workers' Compensation
Com'n, 402 Ill. App. 3d 630, 635 (2010). We find both of these statements to be correct,
depending on the issue presented. First, as discussed in further detail below, we find that
the issue raised in this case requires this court to interpret the language of the Act. To
that extent, we employ a de novo standard of review. See Cassens Transport Co., 218 Ill.
2d at 524. However, once we have set forth the proper interpretation of the Act, the issue
of whether the Commission properly calculated the wage differential award under the
statute as we have interpreted it is subject to a manifest weight of the evidence standard
of review. See Copperweld Tubing Products, Co., 402 Ill. App. 3d at 635.
¶ 19 The calculation of a wage differential award is governed by section 8(d)(1) of the
Act, which provides:
"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,
*** 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 able to earn in some suitable employment or business after the accident." 9 2017 IL App (1st) 160002WC-U
(Emphasis added.) 820 ILCS 305/8(d)(1) (West 2012).
¶ 20 "To qualify for a wage differential under section 8(d)(1) of the Act (820 ILCS
305/8(d)(1) (West 2012)), a claimant must prove (1) partial incapacity which prevents
him from pursuing his 'usual and customary line of employment' and (2) an impairment
of earnings." Gallianetti v. Illinois Industrial Comm'n, 315 Ill. App. 3d 721, 730 (2000).
In order to prove an impairment of earnings, a claimant must prove his actual earnings for
a substantial period before the accident and after he returns to work, or in the event that
he has not returned to work, he must prove what he is able to earn in some suitable
employment. Id. Once the claimant provides evidence of these amounts, it is the
Commission's function to use the formula provided in section 8(d)(1) of the Act (820
ILCS 305/8(d)(1) (West 2012)) to calculate the amount of the wage differential.
¶ 21 Whether the claimant is entitled to a wage differential is not an issue on appeal.
However, the claimant takes issue with the Commission's method of determining "the
average amount which [he] is able to earn in some suitable employment or business after
the accident." Although Illinois courts have previously set forth the proper standard to be
employed in determining "the average amount which [an employee] 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" (see, i.e., Deichmiller v. Industrial Comm'n, 147 Ill. App. 3d 66,
71-74 (1986); Old Ben Coal, Co. v. Industrial Comm'n, 198 Ill. App. 3d 485, 493
(1990)), no Illinois court has set forth an interpretation of the particular method the
Commission is required to use to establish "the average amount which [the employee] is
able to earn in some suitable employment or business after the accident," in the event that 10 2017 IL App (1st) 160002WC-U
the employee has not returned to work. Accordingly, we find this to be an issue of first
impression and proceed to interpret the Act to resolve this legal issue.
¶ 22 With regard to the interpretation of the Act, the Illinois Supreme Court has
provided as follows:
"In interpreting the Act, our primary goal is to ascertain and give effect to the
intent of the legislature. [Citation.] We determine this intent by reading the
statute as a whole and considering all the relevant parts. [Citations.] We must
construe the statute so that each word, clause, and sentence is given a reasonable
meaning and not rendered superfluous, avoiding an interpretation that would
render any portion of the statute meaningless and void. [Citation.] We interpret
the Act liberally to effectuate its main purpose: providing financial protection for
injured workers. [Citation.]" Cassens Transport Co., 218 Ill. 2d at 524.
¶ 23 Here, the relevant statutory language is straightforward and succinct. In making
the calculation of a wage differential under section 8(d)(1) of the Act (820 ILCS
305/8(d)(1) (West 2012)), the Commission must determine "the average amount which
[the claimant] is able to earn in some suitable employment or business after the accident."
In calculating this average amount, if the claimant is working at the time of the
calculation, the claimant must prove his actual earnings for a substantial period after he
returns to work, and the Commission may apply his then current average weekly wage to
the calculation. See Gallianetti, 315 Ill. App. 3d at 730; see also, Levato v. Workers'
Compensation Comm'n, 2014 IL App (1st) 130297WC, ¶29-¶30. However, as in the case
at bar, if the claimant is not working at the time of the calculation, the Commission must 11 2017 IL App (1st) 160002WC-U
rely on functional and vocational expert evidence. 4 See Gallianetti, 315 Ill. App. 3d at
730 (labor market survey); Levato, 2014 IL App (1st) at ¶12-¶13 (vocational
rehabilitation specialist and labor market survey); United Airlines, Inc., 2013 IL App
(1st) 121136WC at ¶4-¶7 (vocational rehabilitation specialists).
¶ 24 In addition, where the claimant is not working at the time of the hearing, it is
important to note that section 8(d)(1) requires that an average wage be derived from
suitable employment for the claimant. Suitable employment is employment in which the
claimant is both able and qualified to perform. See Merriam-Webster's Collegiate
Dictionary, 1249 (11th ed. 2006) (definition of "suitable" in relation to a candidate for a
job is "able and qualified"). For all of these reasons, we hold that in order to calculate a
wage differential award, the Commission must identify, based on the evidence in the
record, an occupation that the claimant is able and qualified to perform, and apply the
average wage for that occupation to the wage differential calculation. As a corollary to
this holding, the claimant is required to introduce evidence sufficient for the Commission
to identify an occupation that the claimant is able and qualified to perform, and the
4 We note that in the case where the claimant is working at the time of the calculation,
but functional and/or vocational evidence is submitted which is sufficient to determine
another suitable occupation for the claimant, there is nothing in section 8(d)(1) of the
Act (820 ILCS 8(d)(1) (West 2012)) that would prevent the Commission from utilizing
such evidence to determine the average wage the claimant could make in some suitable
employment as set forth in this opinion, and vice versa.
12 2017 IL App (1st) 160002WC-U
average wage for that occupation. In any case where the Commission identifies an
occupation that the claimant is able and qualified to perform, as well as the average wage
for that occupation, and applies that average wage to the appropriate part of the formula,
the Commission's determination becomes a factual determination, and thus will not be
disturbed unless it is against the manifest weight of the evidence. See Copperweld
Tubing Products, Co., 402 Ill. App. 3d at 635.
¶ 25 Having set forth the precise method that the Commission must utilize in
determining "the average amount [the claimant] is able to earn in some suitable
employment or business after the accident," we turn to the Commission's decision in
order to determine whether it was against the manifest weight of the evidence. See
Copperweld Tubing Products, Co., 402 Ill. App. 3d at 635. In its decision, the
Commission used $13.78 as the average amount the claimant is able to earn. However,
the Commission did not identify a suitable occupation for the claimant and, accordingly,
did not identify $13.78 as the average amount the claimant is able to earn in any suitable
occupation. Rather, the Commission found that the claimant's lack of effort in obtaining
alternative suitable employment led the Commission to find that the claimant is capable
of earning the highest amount that Mr. Blumenthal opined he was capable of earning,
which was $13.78 per hour. Nevertheless, if, based on the record, this court can identify
said occupation and average wage of $13.78, we will affirm the Commission's
determination. See Comfort Masters v. Workers' Compensation Comm'n, 382 Ill. App.
3d 1043, 1045-46 (2008) (quoting Butler Manufacturing Co. v. Industrial Comm'n, 140
Ill. App. 3d 729, 734 (1986)) (" '[w]e will affirm *** the Commission's decision if there 13 2017 IL App (1st) 160002WC-U
is any legal basis in the record which would sustain that decision, regardless of whether
the particular reasons or findings contained in the decision are correct or sound.' ").
¶ 26 Turning to the record, $13.78 was identified in Blumenthal's report as the average
wage of a school bus driver. However, the record is clear that, at the time of the hearing,
the claimant did not possess a driver's license. As such, he was not qualified for the
occupation of school bus driver. In addition, there is no other evidence in the record
reflecting an occupation that the claimant is able and qualified to perform that has an
average wage of $13.78 per hour. Accordingly, the Commission's calculation of the
claimant's wage differential is against the manifest weight of the evidence. As such, the
circuit court's judgment confirming the Commission's decision must be reversed, the
Commission's wage differential award vacated, and this cause remanded to the
Commission for further proceedings, including the identification by the Commission of
an occupation the claimant is able and qualified to perform, and a calculation of the wage
differential using the average wage of that occupation.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we reverse the judgment of the circuit court that
confirmed the Commission's decision, vacate the Commission's decision, and remand this
matter to the Commission with directions that the Commission recalculate the claimant's
wage differential in accordance with this opinion.
¶ 29 Circuit court judgment reversed.
¶ 30 Commission decision vacated and cause remanded to the Commission with
directions. 14