WCLA MCLE Wage Differential: Calculating the Basis Thursday September 16, :00 pm to 1:00 pm James R. Thompson Center Auditorium, Chicago, IL 1 Hour General MCLE Credit

Issue How is the basis for the wage-differential award under Section 8(d)1 calculated? Do AWW principles apply to this calculation? Is the basis the same thing as the AWW? Is OT include in the basis? WD = 2/3 (FP – SE) WD = wage differential FP = “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”; pre-injury earnings; basis SE= “average amount which he is earning or is able to earn in some suitable employment or business after the accident”; post-injury earnings (NOT TODAY-MAYBE LATER)

IL Workers’ Compensation Act Section 8(d)1: ”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, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this Section, 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 earning or is able to earn in some suitable employment or business after the accident.”

IL Workers’ Compensation Act Sec. 10: “The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows: The compensation shall be computed on the basis of the ‘Average weekly wage’…” Sec. 8(b)1 (TTD): “The compensation rate for temporary total incapacity under this paragraph (b) of this Section shall be equal to 66 2/3% of the employee's average weekly wage computed in accordance with Section 10…” Sec. 8(b)2.1 (PPD): ”The compensation rate in all cases of serious and permanent disfigurement under paragraph (c) and of permanent partial disability under subparagraph (2) of paragraph (d) or under paragraph (e) of this Section shall be equal to 60% of the employee's average weekly wage computed in accordance with the provisions of Section 10…”

Supreme & Appellate Court Cases “Full Performance” Flynn, 211 Ill.2d 546 (2004): Rules of construction lead Supreme Court to disagree with App. Ct.’s conclusion that “only the AWW earned from the employer for whom the claimant was working at the time of the accident may be considered in the wage differential award”… “the test is not whether the employee has been incapacitated from that employment, necessarily, but whether the employee has been incapicitated from his usual and customary line of employment.” … “liberal construction to provide financial protection to injured workers”… “all of his earnings must be considered when calculating a wage differential award.” Deichmiller, 147 Ill.App.3d 66 (1986): It cannot be assumed that apprentice will become journeyman; OK to base wage-differential basis on apprentice earnings (Note: This case has been distinguished by subsequent Commission decisions in which Petitioner proved he would become journeyman, e.g. Duncan v. Bell Engineering, 08 IWCC 0413)

Supreme & Appellate Court Cases “Full Performance” Forest City Erectors, 264 Ill.App.3d 436 (1994): PA79-79, eff changed “average amount which employee earned before the accident” to “full performance of his duties”; “This court must give effect to the amended law in a manner consistent with the amendment…we find that it was proper for the Commission to calculate the 8(d)1 benefits without regard to claimant’s earnings prior to the accident…” Albrecht, 271 Ill.App.3d 756 (1995): Matter of law; Commission denial of 8(d)1 reversed; Evidence created “presumption” that former offensive lineman would have continued in the “full performance” of his job

Supreme & Appellate Court Cases “Full Performance” Morton’s of Chicago, 366 Ill.App.3d 1056 (2006): Commission could infer that Petitioner would have made a 13% increase in “full performance” of her job as a waitress based on the testimony of a similarly situated employee Greaney, 358 Ill.App.3d 1002 (2005): Commission was wrong to equate AWW with “full performance”; using the earnings of current laborers per testimony of Petitioner proved “full performance” Taylor, 372 Ill.App.3d 327 (2007): Using the earnings of driver who replaced the Petitioner did not prove “full performance” and was too speculative because of differences in bidding and seniority

Recent Commission Decisions “Full Performance” Nicole Kelly v. Dept. of Corrections, 10 IWCC 0600: Parties stipulate to “full performance” amount that is $24 less than AWW Ronald Munoz v. Excel Waterproofing, 09 IWCC 1341: Commission affirms Arbitrator’s calculation of “full performance” including 5 hours of overtime (45 hours total) at straight time rate

Recent Commission Decisions “Full Performance” Elizabeth Donnellan v. United Airlines, 09 IWCC 1181: “full performance” includes maximum number of hours flight attendant could work and per diem John Bell v. HBS Excavating, 09 IWCC 1016: Petitioner failed to prove that he would be working in the “full performance” of his job as a union truck driver for two reasons: Respondent is out of business and Petitioner stopped being a union member 4 months after injury

Jose Santoyo v. Copperweld Tubing Products 02 WC year old mill operator injured his left elbow on 11/28/2001 Dr. Henry Fuentes performed 1st elbow surgery; Dr. Mass did 2 nd & 3 rd surgeries on left elbow IME Dr. Cole ordered FCE which came back “light/medium” Petitioner gets his own job as security guard at $8/hour for 40 hours, but then quits to watch kids Fellow mill wright Dwayne Lee testified he made $1500/week ($78,000/52 weeks)

Jose Santoyo v. Copperweld Tubing Products 02 WC Arbitrator’s Decision 12/22/2006: Dwayne Lee, an employee of respondent, testified…still works for respondent as a mill operator…held the same job title, worked same shifts, earned the same hourly compensation, and worked similar hours prior to petitioner's work accidents …the rate of his pay, hours worked, shift premiums, and overtime requirements were all covered by his union's collective bargaining agreement. (See PX26)…in 2005, the most recent full year for which he had reportable earnings, he earned approximately $ 78, working for respondent… Lee testified unrebutted that, if petitioner had still been working as a mill operator, that petitioner would be presently earning the same or more than he. The Arbitrator finds Mr. Lee credible and notes there is no evidence contradicting his testimony. Therefore, the Arbitrator finds that if petitioner was presently working in the full performance of his occupation as a mill operator for respondent, his weekly earnings would average at least $ 1, ($ 78, / 52). Based on the above, the Arbitrator finds that petitioner has met his burden in proving that his November 28, 2001 work injury has partially incapacitated him from his usual and customary employment as a mill operator, and said incapacitation has resulted in a reduction of his earning capacity. Pursuant to §8(d)(1), petitioner is entitled to receive 66-2/3% of the difference between the average amount he would be able to earn in the full performance of his duties as a mill operator ($ 1,500.00) and the average amount he is able to earn in suitable alternative employment ($ ), which amounts to $ ($ 1, $ = $ 1, x 66-2/3% = $ ). The Arbitrator notes that the maximum wage differential benefit applicable to petitioner's accident date is $ , and, thus, that rate would apply. Therefore, the Arbitrator orders respondent to pay petitioner $ per week from March 17, 2006, the date petitioner commenced alternative employment, through November 9, 2006, the date proofs were closed, and ongoing for the duration of petitioner's disability.”

Copperweld Tubing v. Santoyo & IWCC 08 IWCC 0576, : Unanimous Commission decision (Sherman, Lamborn, Dauphin): “The decision of the Arbitrator is hereby affirmed and adopted” 2008 L 50632, , Judge Sanjay Tailor, Cook County Circuit Court: “The decision of the Illinois Workers’ Compensation Commission in case 08IWCC576 is confirmed in its entirety.”

Copperweld Tubing v. IWCC ___Ill.App.3d___, No WC, filed Respondent’s claim of error: Petitioner voluntarily removed himself from work force and was not entitled to wage differential? NO, this does not preclude wage-differential because 8(d)1 says “is earning or is able to earn” Respondent’s claim of error: Post-injury earnings should be $12/hr based on Petitioner’s Voc expert? NO, actual job is reasonable to rely on

Copperweld Tubing v. IWCC ___Ill.App.3d___, No WC, filed Respondent’s claim of error: Commission improperly included “wages for overtime worked on a voluntary basis” in the calculation of “full performance” or basis? YES Section 10 says: “basis for computing the compensation provided for in Section 8” Flynn “clearly applies” the definition of AWW to 8(d)1 Section 10 & Airborne Express, 372 Ill. App.3d 549 (2007)preclude inclusion of voluntary hours; at least some portion of $78,000 basis included voluntary hours 8(d)1 vacated & remanded to Commission with instruction to omit “evidence properly excluded by Section 10 of the Act”