Jigar S. Desai | Rusin Law, Ltd.
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Pick Your Path: Election of Remedies and Employer Credit After Azcon Metals
In a February 26, 2026, opinion, the Illinois Appellate Court, Fifth District, Workers’ Compensation Commission Division, addressed a question of first impression under the Workers’ Compensation Act (Compensation Act), 820 ILCS 305/1, et seq.: whether a claimant who sustains a single injury to one body part may receive concurrent awards under both the scheduled loss provisions of §8(e) and the person-as-a-whole provisions of §8(d)(2). Azcon Metals v. Illinois Workers' Compensation Commission, 2026 IL App (5th) 250301WC. The court held that a claimant must elect one remedy or the other for the same injury, and that an employer who made a voluntary payment under §8(e) is entitled to a credit against a subsequent award under §8(d)(2).
The court affirmed the Commission’s award of permanent partial disability benefits under §8(d)(2) but reversed the Commission’s denial of credit to the employer for benefits previously paid under §8(e).
The decision provides important guidance on the interplay between §§8(e) and 8(d)(2), the election-of-remedies doctrine in workers’ compensation, and the credit principles that apply when employers make prompt voluntary payments under the Compensation Act.
Factual Background
Tom Snyder sustained an injury to his right foot and leg while working for Azcon Metals on March 19, 2020. His right foot was crushed between two rail cars. Snyder initially underwent surgery that resulted in the amputation of four toes on his right foot. However, the following day, he underwent a second surgery that resulted in the amputation of his right leg at the mid-tibia, below the knee.
Following the surgeries, Snyder was fitted for a transtibial prosthetic and participated in physical therapy, work hardening, and a functional capacity evaluation. The evaluation indicated that he could perform work at the heavy physical demand level but had decreased tolerance for prolonged standing and walking on uneven surfaces. Snyder participated in vocational rehabilitation and expressed his intent to pursue employment in heating, ventilation, and air conditioning or in the construction industry, acknowledging that those fields may require traversing uneven ground but believing he could manage the slower pace of such work.
Following the work injury, the employer promptly paid Snyder $97,010.30 in permanent partial disability benefits for the scheduled loss of his right foot pursuant to §8(e)(11) of the Compensation Act. The payment was made in two installments: $60,716.19 on April 20, 2020, and $36,294.11 on April 28, 2022, calculated at 167 weeks using a stipulated minimum statutory amputation rate of $580.90.
Procedural History
On April 17, 2020, Snyder filed an application for adjustment of claim. The matter proceeded to an arbitration hearing on January 27, 2023. At the outset of the hearing, the parties stipulated that the employer had paid, and was entitled to credit for, $17,438.31 in temporary total disability benefits and $42,822.94 in maintenance benefits. The parties further stipulated that the employer had paid $97,010.30 in permanent partial disability benefits for the scheduled loss of Snyder’s right foot under §8(e)(11), but they disagreed as to whether the employer was entitled to a credit for that payment against any additional permanent partial disability award.
Snyder waived his right to a wage differential award under §8(d)(1). The arbitrator awarded all requested medical expenses and, after considering the factors set forth in §8.1b(b)(v) of the Compensation Act, found that Snyder sustained permanent partial disability to the extent of 65 percent loss of use of the person as a whole under §8(d)(2). The arbitrator denied the employer’s request for a credit for the §8(e)(11) payment against the §8(d)(2) award.
On review, the Commission unanimously reduced the §8(d)(2) award from 65 percent to 45 percent loss of use of the person as a whole, finding that Snyder was young and remained capable of physically demanding work. The Commission, however, agreed with the arbitrator that the employer was not entitled to a credit. The Commission characterized the credit issue as one of first impression, concluded that §8(d)(2) did not permit an offset for previously paid amputation benefits, and noted that the employer had paid benefits under the incorrect section — §8(e)(11) (loss of foot, 167 weeks) rather than §8(e)(12) (amputation below the knee, compensated as loss of a leg at 215 weeks).
The circuit court affirmed the Commission’s decision in its entirety. The employer appealed to the appellate court.
The Appellate Court’s Analysis
Framing the Issue
As a threshold matter, the appellate court corrected the framing of the employer’s first argument on appeal. The employer had argued that the Commission erred by awarding benefits under both §§8(e) and 8(d)(2). The court clarified that the Commission did not “award” benefits under §8(e); rather, the employer had made a voluntary payment under that section prior to arbitration. The Commission only awarded benefits under §8(d)(2) and separately considered whether the employer was entitled to a credit. Accordingly, the court reframed the central issue as whether the Commission erred by denying the employer a credit for its voluntary §8(e) payment against the §8(d)(2) award.
Standard of Review
The court noted that while the Commission’s determination of whether an employer is entitled to a credit is ordinarily reviewed for abuse of discretion, the Commission in this case interpreted statutory provisions and concluded that §8(d)(2) did not permit an offset. Because the dispute involved statutory interpretation, the court applied de novo review.
Election of Remedies: Section 8(e) Versus Section 8(d)(2) for a Single Injury
The core of the court’s analysis addressed the interplay between §§8(e) and 8(d)(2). The court acknowledged the tension between the two provisions. Section 8(e) provides that a claimant who receives a scheduled loss “shall not receive any compensation under any other provisions of this Act.” 820 ILCS 305/8(e). Section 8(d)(2), on the other hand, states that compensation awarded under that subsection “shall not take into consideration injuries covered under paragraphs (c) and (e)” and that such compensation “shall not affect the employee’s right to compensation payable under paragraphs (b), (c) and (e) . . . for the disabilities therein covered.” 820 ILCS 305/8(d)(2).
The Commission had relied on the language of §8(d)(2) to conclude that recovery under §8(e) should have no effect on an award under §8(d)(2), and vice versa, effectively permitting concurrent awards and denying the employer any credit. The circuit court agreed, adding that any ambiguity should be resolved in the claimant’s favor under the principle of liberal construction.
The appellate court disagreed. In its view, the language of §8(e) clearly precluded a claimant from recovering under both sections for the same injury to one body part. The court interpreted the language of §8(d)(2) as permitting an election — not a concurrent award — for a single injury. Specifically, the court concluded that §8(d)(2) permits a claimant to elect an award under either §8(e) or §8(d)(2) for an injury to a single body part, while also permitting recovery under both sections when a claimant sustains injuries to multiple, separate body parts in the same work accident.
Consistency with Prior Caselaw
The court grounded its conclusion in several lines of precedent. First, the court analogized to established caselaw holding that a claimant who sustains a scheduled loss may elect between a scheduled loss award under §8(e) and a wage differential award under §8(d)(1), but may not receive both. Citing Payetta v. Industrial Commission, 339 Ill.App.3d 718, 791 N.E.2d 682, 274 Ill.Dec. 590 (2d Dist. 2003), and General Electric Co. v. Industrial Commission, 89 Ill.2d 432, 433 N.E.2d 671, 60 Ill.Dec. 629 (1982), the court noted that this election principle reflects the understanding that an injured party will choose the award most likely to approximate the earnings loss the Compensation Act is designed to compensate. The Commission had distinguished those cases on the basis that §8(d)(1) contains an explicit exclusion for §8(e) claims, whereas §8(d)(2) does not. The appellate court acknowledged the difference in statutory language but concluded that the exclusionary language in §8(e) itself — prohibiting compensation under “any other provisions of this Act” (820 ILCS 305/8(e)) — resolved the issue.
Second, the court observed that both wage differential awards under §8(d)(1) and person-as-a-whole awards under §8(d)(2) serve to compensate injured workers for reduced earning capacity under certain circumstances. Given this functional similarity, the court concluded that the rationale prohibiting dual recovery under §§8(e) and 8(d)(1) applies equally to §§8(e) and 8(d)(2) when a single injury to one body part is at issue.
Third, the court distinguished its prior decisions in Beelman Trucking v. Illinois Workers’ Compensation Commission, 233 Ill.2d 364, 909 N.E.2d 818, 330 Ill.Dec. 796 (2009), and American Coal Co. v. Illinois Workers’ Compensation Commission, 2024 IL App (5th) 230815WC, 248 N.E.3d 493, 478 Ill.Dec. 868. In those cases, the claimants had sustained injuries to multiple body parts during a single work accident, warranting additional compensation under the Compensation Act. In Beelman Trucking, the supreme court permitted concurrent awards under §§8(e)(18) (loss of legs) and 8(e)(10) (loss of arm), reasoning that denying compensation beyond two members would leave additional losses uncompensated. In American Coal, this court extended that reasoning to permit concurrent awards under §§8(e)(18) and 8(d)(2) for nonscheduled injuries sustained in addition to the scheduled losses. The appellate court found those decisions consistent with its holding in Azcon Metals, noting that the present case involved only a single injury to one body part, and that allowing concurrent awards would result in impermissible double recovery.
Employer Entitled to Credit for Voluntary Payment
Having concluded that the claimant was entitled to compensation under only one statutory provision for his single injury, the court turned to the credit issue. The court held that the Commission erred by denying the employer’s credit request. The employer had promptly and voluntarily paid benefits under §8(e) following the work accident, providing the claimant with immediate financial relief. When the claimant subsequently elected to receive benefits under §8(d)(2), the Commission should have credited the employer for its prior voluntary payments.
The court cited World Color Press v. Industrial Commission of Illinois, 125 Ill.App.3d 469, 466 N.E.2d 270, 80 Ill.Dec. 818 (5th Dist. 1984), for the proposition that an employer may receive credit for overpayments absent a statutory bar, and Salisbury v. Illinois Workers’ Compensation Commission, 2017 IL App (3d) 160138WC, 78 N.E.3d 979, 413 Ill.Dec. 703, for the policy principle that encouraging prompt and voluntary payments of benefits furthers the purpose of the Compensation Act. The court emphasized that denying credit for good-faith payments would encourage administrative delays as employers attempt to resolve every ambiguity before paying benefits — a result inconsistent with the Compensation Act’s primary purpose of providing employees with prompt and definite compensation.
Practical Implications
This decision establishes several important principles for practitioners on both sides of the bar.
For employers and carriers, the decision confirms that when a single injury to one body part is involved, a claimant must elect between a scheduled loss award under §8(e) and a person-as-a-whole award under §8(d)(2). The employer who promptly and voluntarily pays benefits under §8(e) will be entitled to a credit against a subsequent §8(d)(2) award. This holding should encourage prompt payment of scheduled benefits, as employers need not fear that early payments will go uncredited if the claimant later elects a different form of permanent disability compensation. Practitioners should carefully document voluntary payments, including the statutory section under which they are made, the calculation methodology, and the dates of payment.
For claimants, the decision preserves the right to elect the more favorable remedy — but it forecloses the possibility of receiving both a scheduled loss award and a person-as-a-whole award for the same injury. Claimants and their counsel should carefully evaluate which remedy produces the greater benefit before making an election, particularly in cases involving amputations or other injuries that may qualify under both sections. The decision also reaffirms that concurrent awards remain permissible when a claimant sustains injuries to multiple, separate body parts in a single work accident, consistent with the rationale of Beelman Trucking, supra, and American Coal, supra.
Finally, the employer’s miscalculation of the scheduled loss payment in this case — paying 167 weeks for loss of a foot under §8(e)(11) when the below-knee amputation should have been compensated as a loss of a leg at 215 weeks under §8(e)(12) — serves as a reminder that correct classification of the injury under the appropriate subsection of §8(e) is critical. An incorrect classification may result in an underpayment that could affect the credit calculation or expose the employer to additional proceedings.
For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE®, 2026). Pre-order the publication here or 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.