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Dibenedetto v. Illinois Workers' Comp. Comm'n

Court of Appeals of Illinois, First District, Workers' Compensation Commission Division

June 26, 2015

JERRY DIBENEDETTO, Appellant,
v.
THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (City of Chicago, Appellee)

Appeal from Circuit Court of Cook County No. 13L50459. Honorable Eileen O'Neill Burke, Judge Presiding.

For APPELLANT(s): Kevin T. Veugeler and Dennis M. Lynch, The Healy Law Firm, Chicago, IL.

For APPELLEE(s): Gerald F. Cooper Jr. and Allyson E. Feary, Scopelitis, Garvin, Light, Hanson & Feary, P.C., Chicago, IL.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justices Hoffman, Hudson, and Stewart concurred in the judgment and opinion.

OPINION

HARRIS, JUSTICE.

[¶1] On March 14, 2007, claimant, Jerry DiBenedetto, filed an application for adjustment of claim pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 to 30 (West 2006)), alleging work-related injuries that arose out of and in the course of his employment on December 12, 2006, and seeking benefits from the employer, the City of Chicago. Following a hearing, the arbitrator determined claimant sustained compensable injuries under the Act and awarded him (1) temporary total disability (TTD) benefits of $1,073.33 per week for 106-4/7 weeks; (2) maintenance benefits of $1,073.33 per week for 129-1/7 weeks; and (3) wage-differential benefits of $982.67 per week from September 9, 2011, through the duration of his disability.

[¶2] On review, the Illinois Workers' Compensation Commission (Commission) modified the arbitrator's wage-differential award, reducing it from $982.67 to $840.65 per week--the maximum weekly benefit allowable under section 8(b)(4) of the Act (820 ILCS 305/8(b)(4) (West 2006)) based on claimant's December 2006 accident date. The Commission otherwise affirmed and adopted the arbitrator's decision. On judicial review, the circuit court of Cook County confirmed the Commission. Claimant appeals, arguing the Commission erred by finding the date of claimant's accidental injury (December 12, 2006), rather than the date of the arbitration hearing (May 25, 2012), controlled the maximum rate applicable to claimant's wage-differential award. We affirm.

[¶3] I. BACKGROUND

[¶4] On appeal, the underlying facts are not in dispute and it is unnecessary to recite them in detail. Briefly stated, the record shows claimant filed his application for adjustment of claim in March 2007, alleging he injured his right arm, back, and neck at work on December 12, 2006. On May 25, 2012, an arbitration hearing was conducted in the matter. Evidence presented showed claimant worked for the employer as a hoisting engineer. While at work on December 12, 2006, he fell to the ground from a height of several feet and sustained injuries, including injuries to his right shoulder and cervical spine. Claimant received medical treatment and underwent surgery on his right shoulder in February 2007 and spinal fusion surgeries in December 2007 and June 2008.

[¶5] In March 2009, a functional capacity evaluation was performed on claimant and showed he functioned at a light to medium level of work. Claimant's treating physician, Dr. Edward Goldberg, recommended permanent restrictions for claimant, including that he not return to work for the employer in his former position as a hoisting engineer. Claimant then began vocational rehabilitation and a labor market survey showed he could be expected to earn between $8 to $10 per hour given his education, physical capabilities, and transferable skills. On September 9, 2011, claimant began working in an office position for Manak Insurance, earning $8.25 an hour. Evidence at arbitration showed claimant's injuries caused a decrease in his earning capacity and his job with Manak Insurance maximized his earning capacity. Evidence further showed that, at the time of arbitration, the rate of pay for a hoisting engineer with the employer was $45.10 an hour.

[¶6] (We note the evidence and testimony at arbitration showed the current hourly rate of pay for claimant's position with the employer was $45.30. Both parties also rely on that figure in their briefs. However, in her decision, the arbitrator inexplicably found the current rate of pay for claimant's hoisting engineer position to be $45.10 an hour and used that latter rate in her wage-differential calculations. The record fails to reflect either party challenged that particular finding by the arbitrator. Thus, we abide by the $45.10 figure.)

[¶7] On September 6, 2012, the arbitrator issued her decision, finding claimant sustained accidental injuries arising out of and in the course of his work for the employer on December 12, 2006, and awarding benefits as stated. Relevant to this appeal, the arbitrator found claimant's injuries " caused a loss of earnings rendering him *** permanently partially incapacitated from pursuing his usual and customary employment" and, as a result, he was entitled to wage-differential benefits pursuant to section 8(d)(1) of the Act (820 ILCS 305/8(d)(1) (West 2006)). Specifically, the arbitrator awarded claimant $982.67 per week, beginning September 9, 2011, and for the duration of his disability.

[¶8] The employer sought review with the Commission, seeking modification of the arbitrator's wage-differential award. It argued that, based on the date of claimant's accidental injury (December 12, 2006), the maximum rate of wage-differential benefits he was entitled to receive was $840.65 per week. On April 18, 2013, the Commission entered its decision in the matter. It noted that, pursuant to section 8(b)(4) of the Act (820 ILCS 305/8(b)(4) (West 2006)), the maximum weekly wage-differential benefit " shall be 100% of the State's average weekly wage [(State AWW)] in covered industries under the Unemployment Insurance Act [(820 ILCS 405/100 et seq. (West 2006))]." The Commission found the State AWW at the time of claimant's accidental injury (December 12, 2006) was $840.65, and reduced his weekly ...


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