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03/17/95 TED ALBRECHT v. INDUSTRIAL COMMISSION

March 17, 1995

TED ALBRECHT, APPELLANT,
v.
THE INDUSTRIAL COMMISSION (CHICAGO BEARS FOOTBALL CLUB, APPELLEE).



Appeal from Circuit Court of Cook County. NO. 93-L-50150. Honorable Joanne L. Lanigan, Judge, Presiding.

The Honorable Justice Colwell delivered the opinion of the court: Rakowski, McCUSKEY, and Rarick, JJ., concur. Presiding Justice McCULLOUGH, dissenting

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Claimant, Ted Albrecht, appeals the trial court's affirmance of the Industrial Commission's decision which affirmed the arbitrator's finding that claimant was not entitled to a wage-loss differential pursuant to section 8(d)1 of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)1 (West 1992)). Claimant appeals, alleging that the trial court erred in applying section 8(d)2 of the Act and that the trial court was required to award compensation to claimant under section 8(d(1)) of the Act since the elements of that paragraph were established. The issue of whether a wage-loss differential award under section 8(d)(1) is available to professional athletes is one of first impression in Illinois.

The record indicates that claimant was a first round draft choice of the Chicago Bears Football Club (Bears) in 1977. Claimant played as an offensive lineman for five seasons from 1977 through 1981. On April 2, 1982, claimant sustained an L5-S1 disc herniation and an L4-L5 bulging disc after performing "leap frog" exercises at the Bears training camp. Dr. Henry Apfelbach, an orthopedic surgeon, treated claimant between April 1982 and May 1983. Although Dr. Apfelbach released claimant to resume his previous job, he gave claimant a 50% chance of achieving further success as a professional football player due to claimant's back surgery and the inactive period following the operation. Claimant was on injured reserve for the 1982 season. He was paid a salary but did not play. Claimant's earnings were $130,000 for 1982, his last year as a professional football player.

Claimant resumed practicing with the Bears at the training camps in 1983 but soon became aware that he was too slow and stiff from his injury to be physically capable of satisfactory performance. Claimant decided to voluntarily resign from professional football. Thereafter, he began a travel service business. Claimant also worked as a sportscaster. He earned approximately $80,000 in 1983, $80,000 in 1984, $87,000 in 1985, and $36,000 in 1986. The evidence indicates that the other Bears offensive linemen who played during this period were paid considerably more than claimant's earnings.

On June 28, 1991, the arbitrator awarded claimant temporary total disability benefits for 67 4/7 weeks and found claimant was permanently disabled to the extent of 50% under section 8(d)2 of the Act. The arbitrator acknowledged that claimant was "forced to change careers" due to his injury but nonetheless determined that claimant was not entitled to a wage-loss differential award under section 8(d)1 of the Act (820 ILCS 305/8(d)1 (West 1992)). The arbitrator noted that claimant has "good executive skills ambition and the willingness to work hard to make his business succeed and his side jobs to prove lucrative. Because his earning [ sic ], except for a drop in 1986, show a steady rise beginning in 1983, 1984 and 1985 * * * and in the Arbitrator's view, will continue to show an increase an award under (d-1) of ยง 8 makes little sense." The arbitrator determinedthat the only way to fairly judge claimant's earnings was to compare claimant's 1982 earnings with those he earned in later years. The arbitrator concluded that "using other lineman's earnings as comparable is unfair because no player is guaranteed selection to the team even if he is healthy." Claimant appealed the denial of the section 8(d)1 wage differential award and the Bears appealed the award of 50% loss of man as a whole under section 8(d)2 of the Act.

On January 29, 1993, the Commission affirmed that portion of the arbitrator's decision denying an award under section 8(d)1 of the Act. The Commission reduced the arbitrator's award from 50% man as a whole to 30% man as a whole under section 8(d)2 of the Act.

Claimant filed a complaint for review in the circuit court regarding the Commission's refusal to provide a section 8(d)1 wage differential award. The trial court confirmed the Commission's decision. In its memorandum decision, the trial court noted that the usual trade contemplated for an award under section 8(d)1 is that which can span the lifetime of a claimant. The trial court referred to testimony at the arbitrator's hearing from members of the Bears organization which indicated that the average playing time of an offensive lineman is less than 10 years. The trial court stated that "from the moment (claimant) started playing football, (claimant) was in a position of temporary employment, not a career where he could anticipate continued employment as long as he desired." The trial court concluded that any presumption that "but for" his injury claimant could have continued playing football is not applicable. The trial court also found that claimant failed to prove an impairment of earning capacity. The court noted that claimant's line of work would have been over before the time of hearing and his earning capacity as a football player would have ended. The court concluded that "where no evidence exists that Petitioner would have continued in his usual and customary line of employment, earning his pre-injury wages, an award of wage differential is not appropriate."

The sole issue on appeal is whether the trial court's refusal to apply section 8(d)(1) to the facts of this case was error as a matter of law. We conclude that a wage-loss differential award should have been entered in favor of claimant as a matter of law.

Section 8(d)1 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, except in cases compensated under the specific schedule set forth in paragraph (e) of this Section, receive compensation for the durationof 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." 820 ILCS 305/8(d)1 (West 1992).

We note that such "wage loss" provisions were the predominant theories of compensation in the original worker's compensation statutes in this country. (IC. A. Larson, Workmen's Compensation sec. 57.14(b), at 10-76 (1993.) Although "schedule principles" later dominated the field, the "wage loss" principle has re-emerged in recent years since scheduled awards are not always fair or certain. General Electric Co. v. Industrial Comm'n (1982), 89 Ill. 2d 432, 437, 60 Ill. Dec. 629, 433 N.E.2d 671.

In order to qualify for a wage differential award under section 8(d)1, claimant must prove (1) partial incapacity which prevents him from pursuing his "usual and customary line of employment," and (2) an impairment of earnings. (820 ILCS 305/8(d)1 (West 1992).) The purpose of this section is to compensate the injured employee for his reduced earning capacity, and if the injury does not reduce his earning capacity, he is not entitled to such compensation. ( Fritz Electric Co. v. Industrial Comm'n (1988), 165 Ill. App. 3d 550, 559, 116 Ill. Dec. 309, 518 N.E.2d 1289.) The wage differential is to be calculated on the presumption that, but for the injury, the employee would be in the full performance of his duties. ( Old Ben Coal Co. v. Industrial Comm'n (1990), 198 Ill. App. 3d 485, 493, 144 Ill. Dec. 682, 555 N.E.2d 1201.) The award is to be based "on the difference between the 'average amount' the 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 injury and the 'average amount' he is earning or is able to earn in some suitable employment after his ...


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