Appeal from the Circuit Court of Franklin County, the Hon.
Robert S. Hill, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
This appeal requires us to answer two questions: Is an employee who is receiving ongoing payments for permanent total disability under section 8(e)(18) of the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(e)(18)) eligible for an award of temporary disability benefits when he is injured in a later employment-related accident? If so, is the employer entitled to credit its payments of the permanent total disability award against the amount due the employee each week for his temporary disability?
On May 7, 1973, the claimant, Joseph Dullenty, while employed as a miner by the appellant, Freeman United Coal Mining Company, sustained injuries which resulted in the amputation of both legs below the knee. An arbitrator for the Industrial Commission awarded him a pension for the loss of both legs, to be paid in monthly installments of $315 for the rest of his life, in addition to necessary medical and surgical expenses and the cost of artificial limbs. The pension was awarded pursuant to section 8(e)(18) of the Act and the arbitrator's finding that Dullenty's double amputation constituted "the complete disability of the Petitioner" (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(e)(18)). While Freeman continued to pay these benefits as well as Dullenty's medical and surgical expenses, it retained Dullenty in its employ as a maintenance man. He worked in this capacity on a regular basis for five years.
As part of the work program at the mine, employees took showers at the mine site on company time at the end of a shift to wash off the coal dust. On July 28, 1979, Dullenty slipped while taking a shower at work and broke the skin on the stump end of his left leg. Surgery was required to close this wound, and following the injury Dullenty has had continuing problems in getting a prosthesis that fits comfortably, with the result that he has had difficulty standing for any length of time and has not been able to continue working.
Dullenty filed a claim for full temporary total disability benefits. An arbitrator awarded him benefits of $185.31 per week in addition to his monthly pension and without any credit for amounts paid under the pension. The Industrial Commission affirmed this decision with one commissioner dissenting, and the circuit court of Franklin County confirmed the award.
The basis for this appeal by Freeman is that it makes no sense to find that a person who has been declared permanently and totally disabled is capable of suffering an additional disability; consequently, an award for permanent total disability under sections 8(e)(18) and 8(f) of the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, pars. 138.8(e)(18), 138.8(f)) is the largest amount that a worker may receive and precludes any type of additional award. The interpretation and application of section 8(e)(18) which Freeman urges upon us does not find support in either the wording of the Act or the decisions of this court. That section provides:
"The specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof, or the permanent and complete loss of the use thereof, constitutes total and permanent disability, to be compensated according to the compensation fixed by paragraph (f) of this Section. These specific cases of total and permanent disability do not exclude other cases.
Any employee who has previously suffered the loss or permanent and complete loss of the use of any of such members, and in a subsequent independent accident loses another or suffers the permanent and complete loss of the use of any one of such members the employer for whom the injured employee is working at the time of the last independent accident is liable to pay compensation only for the loss or permanent and complete loss of the use of the member occasioned by the last independent accident." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(e)(18).)
Section 8(f), to which the quoted section refers, set forth the rates and conditions of payment of benefits for permanent total disability at the time the original award in this case was entered. (The rates of payment now appear in section 8(b)(2) of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(b)(2)).) The payment schedules apply "[i]n case of complete disability, which renders the employee wholly and permanently incapable of work, or in the specific case of total and permanent disability as provided in [section 8(e)(18)]" (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)).
There is a distinction between the two kinds of permanent and total disability referred to in section 8(f), as the wording of that section suggests. "[C]omplete disability, which renders the employee wholly and permanently incapable of work" is defined only in section 8(f), and only in those words; it can form the basis for an award only if the employee is able to show that his injuries have left him without a market for his skills, so that he is for practical purposes unemployable (Intercraft Industries Corp. v. Industrial Com. (1983), 95 Ill.2d 297, 300-01; Valley Mould & Iron Co. v. Industrial Com. (1981), 84 Ill.2d 538, 546-47), and benefits for that type of disability must cease or be reduced should the employee subsequently reacquire a wage-earning capacity (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(f)). Disability under section 8(e)(18), by contrast, is "permanent and total" only by legislative pronouncement; it is not inconsistent with a continuing ability to work, and in that event the pension mandated for it is not to be affected by the employee's return to work. (National Lock Co. v. Industrial Com. (1975), 62 Ill.2d 51; Scandroli Construction Co. v. Industrial Com. (1973), 54 Ill.2d 395.) Although the benefit rates for disability under section 8(e)(18) are calculated in the same manner as those for disability under section 8(f), the purpose behind section 8(e)(18) is not merely to replace lost wages or provide financial protection for workers whose earning power is terminated, but "is broad enough to accommodate the pain and inconvenience that accompany the `specific case of loss of both hands, both arms, both feet or both eyes * * *' even though the employee remains able to work." (National Lock Co. v. Industrial Com. (1975), 62 Ill.2d 51, 56-57.) The only limitation on the recovery provided by section 8(e)(18) is that set forth in the second paragraph of that section, which provides that, where an employee loses two members of the body in separate accidents, the employer who employs him at the time of the second accident is liable only for the loss of the member involved in that accident, rather than for the permanent and total loss of the man as a whole.
As we read section 8(e)(18), it provides no basis for arguing, as Freeman does, that an award of temporary total disability in addition to an award of section 8(e)(18) benefits either goes beyond the intention of the Act or requires one to suppose the logically impossible. "If an employee may properly be rated at 100 per cent disability to qualify him for * * * workmen's compensation, even though his earning power has not in truth, for practical purposes, been impaired, it should be at least equally permissible to penetrate the fiction of 100 per cent disability and accept the truth of his remaining earning ability so that * * * a subsequent injury with increased actual disability may be compensated." (Smith v. Industrial Accident Com. (1955), 44 Cal.2d 364, 370, 282 P.2d 64, 68; accord, Dennis v. Brown (Fla. 1957), 93 So.2d 584; Industrial Carving Co. v. Hurst (1969), 223 Tenn. 469, 447 S.W.2d 871; 2 A. Larson, Workmen's Compensation secs. 59.41, at 10-514, 59.42(b) (1983)). The court's observation in Cropp v. State Workmen's Compensation Commissioner (W. Va. 1977), 236 S.E.2d 480, 484-85, is also relevant to the issue confronting us:
"To say that a life award precludes the obtaining of any additional disability benefits where the injured workman is possessed of sufficient initiative and skills to become re-employed is to embrace a doctrine that human endeavor can ultimately be parceled off in percentages."
The compensation which Dullenty is receiving pursuant to section 8(e)(18) reflects not actual permanent total disability or actual loss of wages but "a stated legislative determination that the [specific injuries suffered] shall have compensation at a fixed figure" (Jones v. Cutler Oil Co. (1959), 356 Mich. 487, 491, 97 N.W.2d 74, 76), even though the injuries may heal. By contrast, the temporary total disability award which Dullenty seeks in this proceeding is calculated to replace lost wages during periods of actual disability and has no other purpose, apart from assuring medical treatment. The former award is authorized by the special circumstances attendant on the loss of both feet, and it relates only to the first accident Dullenty suffered. The second accident, which destroys earning power and income stream just as surely as the first, "is not to be inflicted free of ...