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Deichmiller v. Industrial Com.





Appeal from the Circuit Court of Cook County; the Hon. Earl Arkiss, Judge, presiding.


Claimant, James T. Deichmiller, filed an application for adjustment of claim under the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.1 et seq.) for back injuries allegedly sustained in the course of his employment with respondent, Eugene T. Zonca, individually and d/b/a Zonca Plumbing. An arbitrator awarded claimant temporary total incapacity benefits under section 8(b)(1) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)(1)) and wage differential benefits under section 8(d)(1) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(d)(1)) based upon a finding that claimant was permanently incapacitated from pursuing the duties of a union journeyman plumber.

Following a hearing on review, the Industrial Commission increased the amount of temporary total incapacity benefits awarded to claimant and reduced the section 8(d)(1) wage differential award, finding that it would be "mere speculation" to assume that claimant, who was working as a temporary union journeyman plumber at the time of the accident, would eventually have become a union journeyman plumber. The circuit court of Cook County confirmed the Commission's decision, and claimant has perfected the instant appeal to this court.

Claimant maintains on appeal that the Commission erred in calculating the amount of section 8(d)(1) wage differential benefits awarded to him. We affirm.

The claimant testified at the hearing before the arbitrator as follows. During the latter part of March 1980, claimant was 25 years of age and was working as a plumber for Eugene T. Zonca, d/b/a Zonca Plumbing (Zonca). Claimant's duties as a plumber included loading, hauling, and installing water heaters which weighed approximately 180 pounds and moving, tearing out, and hauling cast-iron boilers which weighed 50 to 400 pounds.

While performing his employment duties on April 1, 1980, claimant experienced severe pain in his lower back when he attempted to move a portion of a cast-iron boiler plate which weighed approximately 200 pounds. Claimant's co-workers transported claimant to the emergency room of an Evanston hospital. The emergency-room physician examined certain X rays of claimant's back, prescribed muscle relaxants and analgesics, and released claimant.

Claimant, who continued to experience severe lower-back pain, sought medical treatment from Dr. Samuel Fraerman, who examined claimant and admitted him into a Highland Park hospital on April 3, 1980. In an evidence deposition, Dr. Fraerman testified as follows. Dr. Fraerman determined that claimant had a compression fracture of the twelfth thoracic vertebra and herniated discs in the lumbar and lumbosacral regions of his back. During claimant's hospitalization, Dr. Fraerman performed a myelogram and prescribed conservative treatment for claimant. Although claimant continued to have positive neurological findings, Dr. Fraerman released claimant from the hospital on May 15, 1980. Claimant continued under Dr. Fraerman's care until December 1980, when Dr. Fraerman discharged claimant and ordered him not to engage in any lifting or in any form of heavy employment. Dr. Fraerman considered claimant to be a "very fragile risk" subject to a recurrence of his disc problems unless he followed the permanent lifting restrictions.

In April 1981 claimant was examined at Zonca's request by Dr. Ronald Pawl, a neurological surgeon. In an evidence deposition, Dr. Pawl testified that (1) all the orthopedic and neurological tests which he performed on claimant were normal, (2) any compression of claimant's vertebra was caused by either an inflammatory disease or a degenerative change, and (3) claimant's back condition was temporary. In a letter to Zonca's counsel, Dr. Pawl was of the opinion that claimant could engage in employment activities including plumbing as long as such activities did not require "repeated bending, lifting and twisting or lifting more than 30-50-lbs. occasionally."

At the hearing before the Commission, claimant testified that he continues to experience pain in his back if he remains in either a standing or sitting position for substantial periods of time. Claimant further testified that he is "very careful and [tries] not to" lift any object which weighs more than 30 pounds.

The parties do not contest the Commission's findings that claimant's back injuries were caused by an accident which arose out of and in the course of his employment with Zonca and that claimant was entitled to a section 8(d)(1) earnings-loss award because he was partially incapacitated from pursuing his usual and customary line of employment. Claimant maintains on appeal, however, that the Commission erred in calculating the amount of his earnings-loss award. In order to fully understand this argument, additional evidence must be examined.

The following evidence concerning the claimant's employment history was adduced at the hearings before the arbitrator. Claimant began working as an apprentice plumber for Zonca, a nonunion shop, approximately five years prior to the April 1980 accident. In November 1978 claimant moved to Wisconsin and earned approximately $6.50 or $6.75 per hour as a hardware-store employee. In April 1979 he returned to work for Zonca Plumbing and was earning approximately $9 or $9.25 per hour at the time of the April 1, 1980, accident.

Wayne Zonca, the vice-president of Zonca, testified as follows. In order to continue doing business in Cook County, Zonca was required to unionize in 1979. At that time, Mr. Zonca and claimant were admitted into Chicago Journeymen Plumbers' Local Union 130 as temporary journeymen plumbers and began paying dues. Mr. Zonca testified that in order for a temporary journeyman plumber to be entitled to union journeyman plumber wages and benefits, the temporary journeyman had to pass the union journeyman-plumber examination. However, in order to be eligible to take this examination, a temporary journeyman was required to pay monthly union dues for a period of one year. Accordingly, if claimant had continued to pay his union dues, he would have been eligible to take this examination in November 1981. Following claimant's injury, Mr. Zonca passed the examination. Mr. Zonca testified that based upon his experience as a plumber, his knowledge of claimant's skills and the difficulty of the examination, he believed that claimant would have passed the examination and obtained permanent journeyman-plumber status. The record indicates that claimant did not take this examination.

Mr. Zonca also testified that he would rehire claimant based on his past work performance, but claimant would not be able to perform the employment duties of a plumber due to his permanent lifting restrictions. Testifying at the December 4, 1981, hearing before the arbitrator, Mr. Zonca stated that a journeyman plumber earned approximately $16.20 per hour.

Claimant introduced into evidence the schedule of union plumber wage rates for the members of Chicago Journeymen Plumbers Local Union 130 for the period ...

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