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Workers’ Compensation FLASHPOINTS February 2020

February 14, 2020Print This Post Print This Post

Joseph P. Basile | E-mail Joseph Basile

The Workers’ Compensation Division of the Illinois Appellate Court has issued a number of Rule 23 orders. This month, two of them are reviewed. The first case resulted in a finding the Commission erred in using a neutral risk analysis before determining whether a petitioner’s injury was incidental to an employment risk. The court found its decision from last year in McAllister v. Illinois Worker’s Compensation Commission, 2019 IL App (1st) 162747WC, 126 N.E.d 522, 430 Ill.Dec. 434, controlled. The second case concerns §8(d)1 of the Workers’ Compensation Act, 820 ILCS 305/1, et seq., and makes clear that average weekly wage is not used in calculating a weekly wage (AWW) differential.

Commission’s Use of Improper Analysis To Categorize Claimant’s Risk of Injury Was Error of Law

In Moreno v. Illinois Workers’ Compensation Commission, 2020 IL App (2d) 170736WC-U, the court ruled the Commission’s reliance on Adcock v. Illinois Workers’ Compensation Commission, 2015 IL App (2d) 130884WC, 38 N.E.3d 587, 395 Ill.Dec. 401, was an error of law requiring a remand of the case. The claimant was employed as a laborer and started working for the respondent in August 2014. On August 25, 2014, he and his supervisor were lifting and carrying flagstones that weighed about 150 pounds. After completing the work, the claimant felt light pain in his back. He did not obtain medical care and thought it would subside. There was disputed evidence as to whether he reported this incident. On September 5, 2014, he felt a pop in his low back when he bent over to pick up a gas can, but he had not lifted the can. He notified the respondent’s owner about this incident the same day and testified that on this day he also reported the August 25, 2014, incident. At the arbitration hearing, the owner agreed the claimant worked on August 25, 2014, but denied the incident was reported. The owner testified he did not learn of the incident until the arbitration hearing. The medical records contained a history of the September 5, 2014, incident. The respondent’s examining physician recorded a history of the claimant becoming symptomatic a week or two before the September 5, 2014, incident while lifting heavy rocks. This doctor noted that on September 5, 2014, the claimant bent forward to pick up a gas can and experienced back pain. The examining physician determined there was a causal relationship between the work activities and left sciatic pain.

Following the §19(b) arbitration, the arbitrator found the claimant did not sustain an injury that arose out of and in the course of employment on August 25, 2014, and that the claimant failed to provide timely notice. The arbitrator found the claimant’s injury from the September 5, 2014, accident was not due to a risk distinctly associated with his employment. The arbitrator applied a neutral risk analysis and found the claimant was not exposed to a greater risk than the general public in bending over in an attempt to lift the gas can. The Commission affirmed and adopted the decision, finding the arbitrator properly applied the neutral risk analysis and found the evidence failed to establish an accident under either the qualitative or quantitative analysis pertaining to the September 5, 2014, accident.

On appeal, the claimant argued his injury involved a risk incidental to his employment as a laborer. The court determined the case involved a question as to whether the Commission employed an improper legal standard, which presented an issue of law subject to de novo review. The court found that the Commission used an improper analysis. This resulted in the automatic exclusion of his risk of injury from the employment risk category without reference to his employment or his specific work duties. The Commission cited language from Adcock in support of its holding. A majority of the court rejected the neutral risk analysis used in Adcock in McAllister, supra. In McAllister, the majority held that when presented with employment risk and neutral risk alternatives, the trier of fact should first consider whether the risk had employment-related characteristics. Only after it is determined that a risk is not employment-related should the Commission consider and apply a neutral risk analysis.

Here, the Commission automatically excluded the claimant’s risk of injury from the employment risk category because the activity resulted from a common bodily movement. Because it applied an Adcock analysis, it did not consider the nature of the claimant’s employment and his required work duties before finding the injury stemmed from a neutral risk. Consequently, the court remanded the case to the Commission.

Justice Holdridge filed a concurrence stating that while he agreed that McAllister controlled this case, he believed it misconstrued the Adcock decision. He also commented that McAllister is on review before the Supreme Court. 2020 IL App (2d) 170736WC-U at ¶39.

Court Remands Case to Commission with Directions To Use 52-Week Work Year To Calculate Weekly Installment Amount of Claimant’s Wage Differential

The court found there was an improper wage differential calculation in Marion High School v. Illinois Workers’ Compensation Commission, 2019 IL App (5th) 190142WC-U. A physical education teacher for Marion High School suffered a back injury in a gym class. She ended up with permanent restrictions and found a teaching position in the Department of Kinesiology at Southern Illinois University (SIU). She taught part-time at SIU because she could not work full-time due to her back pain. Full-time would equate to 12 semester hours. There was no dispute she was entitled to a wage differential. The dispute focused on the proper calculation of the weekly amount.

The arbitrator awarded a $507.53 weekly wage differential, using a 52-week work year to calculate the earnings from the claimant’s former position at Marion High School which came to $1,315.15/week ($68,388/52). The arbitrator determined that if the claimant could work full time (12 semester hours) at SIU, the earnings would be $28,800 for two semesters, or $553.85 over a 52-week work year. The arbitrator took two thirds of the difference between those figures (two thirds of $761.30) to arrive at the weekly figure.

The Commission modified the decision, awarding $649.77 (two thirds of $947.66) per week. The Commission found the claimant’s annual earnings at Marion High School would have been $68,388 based on a 37-week work year had she not been injured. The 37-week year was based on the petitioner’s decision to work 75 percent of the semester hours at SIU, thus earning $21,600 based on a 32-week year. The Commission considered that if the petitioner worked 75 percent of a full teaching workload in her former job, as she was presently doing, her salary would be $51,290. The Commission arrived at the $649.77 weekly figure based on an annual difference of $26,316. The calculation was the result of taking the earnings of $51,291 and subtracting $24,975. The Commission arrived at the $24,975 figure by taking the SIU earnings of $21,600 and multiplying them by 37/32.

The circuit court reversed the calculation, finding the Commission erred in using annualized earnings rather than the average weekly wage to determine the differential and by using a 37-week year for SIU rather than a 32-week work year. The court also found error in the decision to reduce the average amount the claimant would have earned in the full performance of her duties at Marion High School by 25 percent.

Based on the court’s remand order the Commission awarded a $782.21 weekly differential. This was the result of taking 66 2/3 percent of the difference between earnings of $68,388 divided by 37 weeks and $21,600 divided by 32 weeks.

The respondent argued on appeal that the calculation was an error of law — specifically, that the earnings for her former position should be based not on the average weekly wage but on what she would be able to earn in the full performance of her duties at the time of the hearing. The petitioner argued the use of the AWW rather than annualized average earnings in computing a wage differential is firmly established by the Act and the courts’ interpretation of §8(d)1. She argued the Commission was correct in using the 37-week denominator for the earnings at Marion High School and the 32-week denominator for the SIU earnings. The court disagreed with the petitioner. Section 8(d)1 provides that the calculation of a wage differential award should be based 66 2/3 percent of the difference between the average amount the petitioner would be able to earn in the full performance of his or her duties in the occupation in which he or she was engaged at the time of the accident and the average amount that he or she is earning or is able to earn in some suitable employment or business after the accident. The section does not include the phrase “average weekly wage.” 2019 IL App (5th) 190142WC-U at ¶28. According to the appellate court, “Had the legislature intended [wage differentials] to include AWW, it would have explicitly included such language.” 2019 IL App (5th) 190142WC-U at ¶29. The court commented that the petitioner’s position, if accepted, would result in a windfall to the petitioner and be contrary to the Act’s purpose of making an injured worker whole after an accident.

The court found that the earnings of $68,388 from the claimant’s former position at the high school represented the amount she would be able to earn in the full performance of her duties at the time of the arbitration hearing based on the parties’ proper stipulation to that figure. The court noted the circuit court held the Commission’s 25-percent reduction in the calculation of the SIU earnings, which resulted in the $21,600 figure, was error. The Commission failed to make a factual finding as to whether the petitioner’s earning capacity was limited to 9 semester hours, equaling $21,600, or 12 hours at SIU.

The court found the Commission erred in computing both the upper and lower wage figures, holding that §8(d)1 requires wage differentials to be paid out in weekly installments using a 52-week denominator. The Commission also erred in failing to make a factual finding as to the petitioner’s earning capacity at SIU. The court affirmed the use of the $68,388 upper figure and reversed, in part, for the Commission to make the factual finding as to the earning capacity at SIU. Finally, the court ordered the Commission to use a 52-week work year denominator to calculate the weekly amount of the wage differential.

For more information on workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (ILLINOIS) — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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