Appeal from the Circuit Court of Cook County, No. 03-L-50673. Jeffrey Labonte, The Honorable Joann L. Lanigan, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
Claimant, Jeffrey Labonte, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)) for injuries he sustained on April 5, 1998, while employed by Yellow Freight System, Inc. (employer). After a hearing, the arbitrator determined that claimant suffered an aggravation of a pre-existing shoulder condition, which resulted in surgery. The arbitrator awarded claimant temporary total disability benefits (TTD) of $520.07, for a period of 47 1/7 weeks and $305.50 for reasonable and necessary medical expenses The arbitrator found that as a result of the accident, claimant was only capable of doing "medium" work due to permanent restrictions of not lifting more than 40 pounds and frequent lifting of up to only 25 pounds. The arbitrator further found the shoulder injury resulted in 45% loss of the use of claimant's left arm under section 8(e) of the Act and a back injury resulted in 5% disability of the person as a whole under section 8(d)(2). The arbitrator refused to award claimant a wage differential award pursuant to section 8(d)(1) of the Act. The employer sought review with the Illinois Industrial Commission (Commission). The issues raised were the extent of claimant's permanent partial disability and whether claimant was entitled to a wage differential. The Commission agreed with the arbitrator that claimant failed to prove he was entitled to a wage differential under section 8(d)(1) of the Act. The Commission modified the permanency award finding claimant permanently partially disabled to the extent of 40% under section 8(d)(2) of the Act, and ordered the employer to pay claimant $439.89 per week for a period of 200 weeks. The Commission further modified by finding claimant was not entitled to any benefits under section 8(e) of the Act.
The circuit court of Cook County reversed the Commission's award of permanent partial disability benefits under section 8(d)(2), finding instead that claimant was entitled to wage differential benefits pursuant to section 8(d)(1) of the Act, and remanded to the Commission for a determination of benefits under section 8(d)(1). In all other respects, the Commission's decision was affirmed. Upon remand, the Commission, with one dissent, determined that claimant was entitled to wage differential benefits of $361.34 per week, commencing March 2, 1999, for the duration of his disability. In his dissent, Commissioner Stevenson adhered to his original decision that an award under Section 8(d)(2), rather than a wage differential, was the appropriate remedy. The circuit court confirmed the majority's decision. We affirm.
Claimant began working for the employer in 1987. Over the years, he worked as both a dockworker and a spotter. The dockworker position required significant overhead lifting, and the spotter position required him to lift trailers off a "pintlehook." In order to start work with the employer, claimant was required to take a pre-employment physical, which he passed. In 1987, claimant did not have any problems with his neck or back.
In 1990, claimant suffered a cervical injury, which required C-5 and C-6 fusion surgery. He received a workers' compensation settlement for that injury and resumed his regular employment in 1991. During 1992 and 1993, claimant experienced soreness in his left shoulder, and in 1994, he reported a back injury. The parties stipulated that claimant suffered a work accident on April 5, 1998, while cranking down dolly legs on a trailer. Claimant attempted to pull a pin two or three times and felt immediate pain in his left shoulder. Claimant also felt pain in his lower back when he pulled on the pin. Claimant reported the accident to his supervisor and was treated at the emergency room at Alexian Brothers Hospital.
On July 15, 1998, claimant underwent arthroscopic surgery on his left shoulder, followed by physical therapy. Dr. Weidman, the surgeon who performed the surgery, ordered permanent restrictions of no lifting over 40 pounds and frequent lifting of only 25 pounds. Both Dr. Weidman and Dr. Gnadt, claimant's other treating physician, opined that as a result of the April 5, 1998, accident claimant suffered an aggravation of a pre-existing condition, which resulted in the need for surgery and permanent restrictions. The employer's examining doctor opined that claimant merely suffered a shoulder strain on April 5, 1998, and claimant's shoulder problems were chronic in nature and a separate issue.
Claimant, age 43 at the time of the accident, testified that he still experiences shoulder pain, which is particularly painful when he sits too long or reaches overhead. He is no longer able to bowl or play basketball. Claimant testified that he did not graduate from high school. He dropped out after the 11th grade and started pumping gas. He then worked in a foundry/machine shop. He also did landscaping, worked as a switchman for a railroad company, worked as a box handler, worked as a freight handler, and worked as a bartender before accepting his position with the employer. When claimant originally applied for the job with the employer, he wrote on the application that he was a high school graduate.
After shoulder surgery and therapy, claimant began working with Tracy Peterlin, a vocational consultant retained by the employer. Peterlin advised claimant that a security officer position would be appropriate for him. Peterlin even composed a report advising claimant of several security companies that were hiring and that he should contact those companies about employment. The salary range for such a position was $6 to $8 per hour. Claimant testified he made $19.15 per hour as a dock worker and approximately $19.30 as a spotter.
Claimant secured a job with Metro Milwaukee Auto Auction prior to meeting with Peterlin. The job pays $7 per hour. Claimant works 32 hours per week, which is considered full-time, and receives health benefits. Claimant testified that he accepted the position after he contacted the employer about the job and was told that it was acceptable and he should take it. Karen Tolbert was the person who told claimant it was okay for him to take the job. Tracy Peterlin's report specifically states that she spoke with Karen Tolbert who said it was fine that claimant accepted the position. Tolbert told Peterlin to keep the file open for 30 days and if claimant was still working, the file could be closed.
On cross-examination, claimant acknowledged that he had been living in Franklin, Wisconsin, and commuting to Illinois for five years prior to his work accident. The parties stipulated that claimant was advised of job openings with the employer in July 1999, some five months after accepting a position as a security guard. The employer introduced the job descriptions for three positions open in July 1999: Associate Dock Operations Supervisor, Shift Operations Manager, and Dock Supervisor. The Shift Operations Manager position required a bachelor's degree or equivalent combination of education and experience, as well as experience as a front line supervisor. The Dock Supervisor position did not require a bachelor's degree, but a bachelor's degree and previous supervisory experience was considered a plus. It also required the applicant to have the ability to train and motivate others and have a good knowledge of the bargaining unit agreement. The Associate Dock Operations Supervisor required a high school education or equivalent and one to two years work experience, along with knowledge of computer applications and proficient keyboard skills.
Claimant testified that he did not have the skills required for the three positions. For example, claimant is unable to type due to a previous injury to his finger. Claimant has not looked for any other jobs since accepting the position as a security guard. In his 1987 job application, claimant set forth that in addition to working as a bartender, he was also a manager for the same bar from 1983-1987. He also claimed additional managerial experience with a company called Carry Light, Inc.
After hearing all the evidence, the arbitrator awarded TTD benefits and found claimant's shoulder injury resulted in 45% loss of the use of claimant's left arm under section 8(e) of the Act and the back injury resulted in 5% disability of the person as a whole under section 8(d)(2). The arbitrator refused to award a wage differential. The Commission initially agreed that claimant was not entitled to a wage differential. The Commission modified the permanency award, finding claimant permanently and partially disabled to the extent of 40% under section 8 (d)(2) of the Act, but refusing to award benefits under section 8(e) of the Act. The circuit court reversed the Commission's permanent partial disability award under section 8(d)(2), finding instead that claimant was entitled to a wage differential pursuant to section 8(d)(1) of the Act and remanded for a determination of benefits under ...