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Payetta v. Industrial Commission

June 17, 2003

RICHARD A. PAYETTA, APPELLANT,
v.
THE INDUSTRIAL COMMISSION, ET AL.



(Graber Concrete Pipe Company, Appellee). Appeal from the Circuit Court of Du Page County. No. 01-MR-565 Honorable Edward R. Duncan, Jr. Judge, Presiding.

The opinion of the court was delivered by: Justice Goldenhersh

UNPUBLISHED

Petitioner, Richard Payetta, filed a claim against respondent, Graber Concrete Pipe Co., under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1994)). The Illinois Industrial Commission (Commission) awarded the wage differential benefits pursuant to section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 1994)) commencing when petitioner found other suitable employment. The circuit court of Du Page County entered judgment on the Commission's decision. On appeal, petitioner raises issues as to (1) whether the wage differential benefits under section 8(d)(1) should commence from the date of his arm amputation, as opposed to the date petitioner found other suitable employment, and (2) whether respondent is entitled to a credit of $50,437.02 against the section 8(d)(1) award. We affirm.

FACTS

On April 23, 1996, petitioner lost his right arm in an accident while working for respondent. Petitioner filed a claim under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1994)). The parties entered into stipulations for arbitration regarding payments that had been made to petitioner. The parties stipulated that petitioner had received the sum of $400 for one week and $491.59 for a period of 147 weeks following the accident, for a total of $72,663.73. The parties also stipulated that petitioner received $442.43 for a period of 114 weeks, for a total of $50,436.11. Overall, the parties stipulated that a total of $123,099.84 had been paid to petitioner.

At arbitration, petitioner sought wage differential benefits pursuant to section 8(d)(1) (820 ILCS 305/8(d)(1) (West 1994)). Respondent stipulated that petitioner would have been working in his former employment for 57 hours per week at the rate of $16.43 per hour, yielding a weekly wage of $936.51. At arbitration, the parties contested the earning capacity of petitioner and what credit, if any, should be due respondent.

The Commission entered a decision finding that petitioner had been temporarily totally disabled for a total of 129 weeks from April 24, 1996, through October 14, 1998. The Commission found that respondent was entitled to credit of $11,655.76 for overpayment of temporary total disability (TTD) benefits after October 14, 1998.

The Commission found that respondent had promptly paid to petitioner statutory amputation loss benefits of $442.43 per week for a period of 114 weeks after the accident for a total of $50,436.11. The Commission found that respondent was entitled to credit for these payments as they represented statutory amputation loss benefits. The Commission also stated that respondent should have a credit "on all amounts paid, if any, to or on behalf of petitioner on account of said accidental injury."

Pursuant to section 8(d)(1) of the Act, the Commission ordered that, commencing on October 14, 1998, respondent was obligated to pay the sum of $239.73 per week for the duration of petitioner's disability. Petitioner estimates that, taking into account the $62,092.78 in credit given to respondent, he will not receive any payments until October 2003, when the credits are amortized to zero at the rate of $239.73 per week. The circuit court adopted the Commission's findings. Petitioner appeals.

ANALYSIS

The Commission awarded petitioner wage differential benefits pursuant to section 8(d)(1) of the Act. Section 8(d)(1) reads:

"(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 [s]section, receive compensation for the duration of his disability, subject to the limitations as to maximum amounts fixed in paragraph (b) of this [s]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 1994).

Alternatively, petitioner could have sought a scheduled award under section 8(e) for permanent partial loss of an arm. Section 8(e)(10) provides that an injured party should receive 235 weeks of pay for an accident that results in amputation of an arm below the elbow. 820 ILCS 305/8(e)(10) (West 1994). In the event of a loss of a member, a petitioner has the choice of seeking relief under either section 8(d)(1) or section 8(e)(10), but not both. General Electric Co. v. Industrial Comm'n, 89 Ill. 2d 432, 436, 433 N.E.2d 671, 673 (1982). A petitioner is allowed to choose between the scheduled loss and a wage differential on the grounds that the injured party will choose the award most likely to approximate the earnings loss that the Act attempts to compensate. General Electric Co., 89 Ill. 2d at 438, 433 N.E.2d at 674. As petitioner chose to seek an award for wage differential, he may not claim the scheduled award for loss of his arm.

Petitioner contends that the wage differential payments should start to accrue at the time of the accident when he lost his arm. Petitioner points to the language of section 8(d)(1) that provides that an injured party should receive compensation for ...


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