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Wood Dale Electric v. the Illinois Workers Compensation

February 11, 2013

WOOD DALE ELECTRIC,
APPELLANT,
v.
THE ILLINOIS WORKERS COMPENSATION COMMISSION, ET AL., (RICHARD BILSON, )
APPELLEE.)



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 11 L 50366 HONORABLE JAMES C. MURRAY, JUDGE PRESIDING.

The opinion of the court was delivered by: Justice Hoffman

Workers' Compensation Commission Division

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.

Presiding Justice Holdridge and Justices Hudson, Harris and Stewart concurred in the judgment and the opinion.

OPINION

¶ 1 Wood Dale Electric appeals form an order of the circuit court of Cook County which, among other things, reversed that portion of a decision of the Illinois Workers' Compensation Commission (Commission) that awarded it a credit pursuant to section 8(j)2 of the Workers' Compensation Act (Act) (820 ILCS 305/8(j)2 (West 2008)) against benefits due its injured employee, Richard Bilson (hereinafter referred to as the "claimant"), and affirming the Commission's award of a weekly wage differential to the claimant for injuries he suffered while working. For the reasons which follow, we vacate a portion of the circuit court's order and affirm the remainder.

¶ 2 The claimant filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2008)), seeking benefits for a left shoulder injury he received while in the employ of Wood Dale. The following factual recitation is taken from the record on appeal, including the record of an arbitration hearing conducted on the claim on April 18, 2008.

¶ 3 The claimant, a journeyman electrician, testified that he fell at work and injured his left shoulder. He stated that he was unable to work as an electrician after the accident, so he sought other work through a vocational specialist. Eventually, with the consent of Wood Dale's insurance carrier, he accepted a job as a school bus driver, and he held that job at the time of the hearing. The job paid him $12.50 per hour for 20 hours per week--substantially less than the $37.80 per hour he would have received as an electrician. The claimant testified that, upon his reaching the age of 62 on May 27, 2008, he would be entitled to pension retirement benefits that are payable regardless of any disability. He testified that he had planned to wait until he was 65 years old to retire, but as a result of his injury, he applied to receive those benefits starting in May 2008.

¶ 4 Wood Dale did not dispute that the claimant's is entitlement to benefits under the Act as a result of his accident. It did, however, assert a right to a credit for the claimant's pension benefits. On June 23, 2008, following the hearing, the arbitrator found that the claimant's injury was compensable under the Act, and he awarded the claimanta total of 56 6/7 weeks of temporary total disability (TTD) benefits, a weekly wage differential of $841.33 for the duration of the claimant's disability, and medical expenses. The arbitrator denied Wood Dale any credit for the claimant's pension benefits.

¶ 5 Wood Dale sought review of the arbitrator's decision before the Commission. On January 27, 2009, the Commission affirmed and adopted the arbitrator's decision, with two exceptions. First, the Commission modified the claimant's wage differential award to $840.65, per week, the maximum weekly wage differential that could be awarded uner the Act. Second, the Commission found that, pursuant to section 8(j)2 of the Act, Wood Dale should be entitled to a credit for any pension benefits that accrued during the claimant's time working for Wood Dale. Accordingly, the Commission remanded the case to the arbitrator to determine the amount of Wood Dale's pension credit.

¶ 6 On April 6, 2010, the arbitrator issued a decision calculating Wood Dale's pension credit at $432 per week. Both parties sought review before the Commission, which, on March 21, 2011, affirmed and adopted the arbitrator's decision.

¶ 7 The claimant filed a petition for judicial review of the Commission's decision in the circuit court of Cook County. On October 25, 2011, the circuit court issued an order finding that section 8(j)2 of the Act does not allow a credit for pension benefits. The court thus set aside that part of the Commission's decision awarding Wood Dale a credit and confirmed the decision is all other respects. The court also added the following language to the end of its order:

"The parties *** disagree as to whether and to what extent [the claimant] is entitled to pension payments, given that he apparently has not yet retired. *** The record before this Court is insufficient to resolve the dispute. Therefore, this case is remanded to the Commission to determine, as a factual matter, the extent to which [the claimant] is entitled to receive pension benefits. Because [the claimant's] pensions are not disability pensions, ...


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