Court of Appeals of Illinois, First District, Workers Compensation Commission Division
Appeal from the Circuit Court of Cook County No. 11 L 50815 Honorable Roberto Lopez Cepero, Judge Presiding.
Presiding Justice Holdridge and Justices Hudson, Harris and Stewart concurred in the judgment and the opinion.
¶ 1 The claimant, Richard Young, appeals from an order of the Circuit Court of Cook County which reversed a decision of the Illinois Workers' Compensation Commission (Commission) awarding him, amongst other relief, weekly wage differential payments of $277.06, beginning April 27, 2009, pursuant to section 8(d)(1) of the Workers' Compensation Act (Act) (820 ILCS 305/8(d)(1) (West 2006)) and continuing for the duration of the disability he suffered as a consequence of his employment with United Airlines, Inc. (UAL). In addition, the circuit court reinstated the decision No. 1-12-1136WC of the arbitrator which, in part, had awarded the claimant weekly wage differential payments which decreased annually over the course of ten years and terminated on April 13, 2018. For the reasons which follow, we reverse the judgment of the circuit court and reinstate the decision of the Commission.
¶ 2 The following factual recitation is taken from the evidence presented at the arbitration hearing conducted on March 5, 2010.
¶ 3 The claimant testified that he started working as a ramp service worker for UAL on April 12, 1999. As a ramp service worker, the claimant loaded and unloaded luggage bags for UAL. On December 28, 2004, he sustained a right wrist injury arising out of and in the course of his employment. In December 2004, the claimant earned $20.66 per hour, which included shift differential pay ($0.50/hour) and line pay ($0.10/hour); he was also eligible for longevity and overtime pay. The claimant testified that in December 2004, he averaged 44 hours per week, which included overtime hours. On April 17, 2006, his physician released him to return to work on a trial basis; he returned to work on April 19, 2006. Two days later, on April 21, the claimant suffered a right shoulder injury while lifting a bag. On July 20, 2007, the claimant's physician, Dr. Terry Nicola, released him to return to work with permanent restrictions; the restrictions precluded him from returning to his ramp service position.
¶ 4 On August 29, 2007, at UAL's request, the claimant met with Joseph Belmonte for a vocational interview. The claimant began seeking alternative employment both inside and outside of UAL. In February 2008, the claimant accepted a station operations representative (SOR) position at UAL. As an SOR, the claimant managed the weight loads of airplanes, requiring him to sit at a No. 1-12-1136WC desk and monitor computer screens. The SOR position paid $20.63 per hour for 40 hours per week. The claimant testified that had he still been employed as a ramp service worker in April 2008, he would have been making $19.81 plus shift differential, line pay, and longevity pay, based on the union agreement that was in effect in March 2008. The claimant worked as an SOR at the $20.63 per hour rate for approximately six weeks, until April 27, 2008. At that time, UAL informed the claimant that there was an error and that his wage was being reduced to $9.92 per hour, because the union agreement required that he start at the lowest wage for the SOR position. As an SOR, he was also able to receive longevity pay and shift differential. The claimant testified that he worked 40 hours per week as an SOR, whereas he had the opportunity to work overtime hours as a ramp service worker. As a ramp service worker, overtime could be mandatory on some occasions, such as when the weather was bad, and it usually ranged from one hour to four hours.
¶ 5 On cross-examination, the claimant admitted that as a ramp service worker, he was a member of the International Association of Machinists and Aerospace Workers Union (IAM). He testified that he was still a member of this union as an SOR. The claimant also admitted that, pursuant to the union agreement for ramp service workers, overtime became mandatory only in emergencies, such as weather-related conditions. He admitted his current hourly pay was "$10.60-something, " and he was eligible for annual wage increases as an SOR. On March 15, 2010, his wage was set to increase to $11.07 per hour. The claimant denied that his wage would progress in the same manner as a ramp service worker. He explained that when he started as a ramp service worker there was a five-year progressive pay scale; he was earning the top wage as a ramp service worker at the time of his injury. Under the current union agreement, there was a 10-year progressive pay scale for both positions. No. 1-12-1136WC The claimant admitted that he would be at the top wage for the SOR position in 2018.
¶ 6 The report of Joseph Belmonte was submitted into evidence. Belmonte opined that the claimant was employable in a variety of alternative occupations, including truck driving and transportation related activities, material handling and warehouse activities. Belmonte opined that occupations such as industrial truck operator or forklift operator, which often paid $15 per hour, might also be suitable positions for the claimant. Belmonte recommended that the claimant seek alternative employment and undergo vocational testing and training.
¶ 7 Julianne Cooney, a labor relations analyst at UAL, testified that she ensured that union contract terms relating to wages and other rules were followed. She had been employed by UAL for 22 years, the last eight years as a labor relations analyst. She testified that the same union, IAM, oversaw ramp service workers and SORs. She explained that IAM negotiated two separate agreements, the Ramp Service Agreement and the Public Contact Employees Agreement, which applied to ramp service workers and SORs, respectively.
¶ 8 Cooney identified the Ramp Service Agreement, dated July 1, 2005, which was still in effect at the time of the hearing. She admitted that a new agreement was being negotiated, but she did not know when such agreement would be reached. Cooney also identified the Public Contact Employees Agreement, dated May 1, 2008. She testified that the claimant began working as an SOR on March 17, 2008, earning $20.63 per hour. That hourly rate was incorrect, because the Public Contact Employees Agreement provided that inactive employees begin at the lowest wage. The $20.63 hourly wage was the top wage for an SOR; the starting wage was $9.67. Under the contract terms, the claimant was considered an "inactive" employee. No. 1-12-1136WC
¶ 9 Cooney testified that on March 17, 2008, had the claimant still been employed as a ramp service worker, he would have been earning the maximum base pay ($19.81 per hour), line pay ($0.10 per hour), and longevity pay ($0.06 per hour), totaling $19.97 per hour. Using the current Ramp Service Agreement, Cooney projected the claimant's wages through April 12, 2020, incorporating contractual wage increases. As of April 26, 2009, Cooney projected that the claimant would have been earning $21 per hour as a ramp service worker. She explained that the contractual increases generally occurred annually, but admitted that such increases depended upon the terms of the agreement. In her experience, contractual increases historically have been the same for both the ramp service and SOR positions.
¶ 10 Cooney also projected the claimant's wages through April 12, 2020, using the SOR pay scale. She testified that the claimant's SOR wage as of March 17, 2008, was $9.61 per hour. On April 12, 2009, the claimant earned $10.36 per hour as an SOR. As of March 5, 2010, the hearing date, Cooney testified that the claimant earned $10.61 per hour. She testified that the claimant would progress to the top of the SOR wage scale on March 17, 2018, earning $21.77 per hour. At that point, Cooney testified that the claimant would be earning more money than he would have had he remained in the ramp service position, which she projected would pay $21.08 per hour in 2018. Cooney testified that employees could not receive discretionary raises, because they were bound by the union agreements. The claimant's counsel objected to Cooney's projections on the basis the projections were speculative. The arbitrator overruled the objection.
¶ 11 On cross-examination, Cooney admitted her projections were based on the current union agreements, which covered years 2005 through 2009. She admitted that, under the Ramp Service No. 1-12-1136WC Agreement, the ramp service worker's top wage decreased from the prior agreement's top wage. Cooney explained that UAL was in bankruptcy before the 2005 agreement was reached. As part of the terms of the bankruptcy, UAL had to implement a court-imposed wage reduction. Cooney admitted that it was possible that wages may change over ...