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Industrial Commission Division

PRESIDING JUSTICE McCULLOUGH delivered the opinion ofthe court:

On August 24, 1998, claimant, Edwin Ade, injured hisleft hand while working for Cassens Transport Company (employer)and sought compensation under the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2000)). The Illinois IndustrialCommission (Commission) awarded claimant wage differentialbenefits in the amount of $203.55 per week pursuant to section8(d)(1) of the Act, which was confirmed on review.

On May 29, 2003, employer filed a motion before theCommission, seeking an order to suspend wage differential benefits that had been awarded to claimant. The employer assertedclaimant had failed to respond to requests to provide income taxreturns to determine whether a wage loss still existed. OnOctober 7, 2003, the Commission denied employer's motion. TheCommission found that the term "disability" as used in section8(d)(1) refers to only physical and mental disability, and not toeconomic disability, citing to Petrie v. Industrial Comm'n, 160Ill. App. 3d 165, 513 N.E.2d 104 (1987). As there was no allegation that there was a change in claimant's physical condition,the Commission found there was no basis for suspending payments.On February 9, 2004, the Coles County circuit court affirmed theCommission's order. The court stated:

"The [c]ourt hereby denies [employer's] review to overturn the October 7, 2003[,][d]ecision of the [Commission] and in supportthereof relies upon the case of Petrie v.Industrial Commission, 130 Ill. App. 3d 165,513 N.E.2d 104, 111 Ill. Dec. 858 (3^rd Dist.1987), that the term [']disability['] as usedin [s]ection 8(d)(1) of the [Act] refers onlyto physical and mental disability[,] and noteconomic disability. The [c]ourt also relieson Joesel v. Chicago Park District, 98 IIC0129, which notes that there is an inabilityto alter an award under [s]ection 8(d)(1) ata later date, as well as Manis v. IndustrialCommission, 230 Ill. App. 3d 657, 595 N.E.2d158 (1^st Dist. 1992) which makes it clearthat the term 'disability' means physicaldisability and not economic disability."

On appeal to this court, employer contends that theCommission improperly interpreted the meaning of "disability"under section 8(d)(1) of the Act. Section 8(d)(1) provides:

"If, after the accidental injury hasbeen sustained, the employee as a resultthereof becomes partially incapacitated frompursuing his usual and customary line ofemployment, he shall, except in casescompensated under the specific schedule setforth in paragraph (e) of this [s]ection,receive compensation for the duration of hisdisability, subject to the limitations as tomaximum amounts fixed in paragraph (b) ofthis [s]ection, equal to 66-2/3% of thedifference between the average amount whichhe would be able to earn in the fullperformance of his duties in the occupationin which he was engaged at the time of theaccident and the average amount which he isearning or is able to earn in some suitableemployment or business after the accident." 820 ILCS 305/8(d)(1) (West 2002).

The employer contends that the term "disability" insection 8(d)(1) means an economic disability because this sectionbases compensation on an individual's loss of earnings. Theemployer points out that an injured worker has a choice ofsections to seek recovery under. For example, instead of seekingan award for lost wages, an injured worker could seek recoverybased solely on the extent of physical disability under section8(e) for loss of enumerated body parts or section 8(d)(2) forperson as a whole. In contrast, section 8(d)(1) takes intoaccount a worker's change in earnings. The employer contendsthat "disability" under this section should, therefore, encompasseconomic standing.

The Commission, and the circuit court, rejected theargument that disability includes economic standing, relying onPetrie v. Industrial Comm'n, 160 Ill. App. 3d 165, 513 N.E.2d 104(1987). In Petrie, a worker sustained injuries to his right andmiddle fingers. At arbitration, the claimant requested an awardfor impaired earning capacity under section 8(d)(1), but wasawarded an amount for percentage of loss of man as a whole undersection 8(d)(2) of the Act. Petrie, 160 Ill. App. 3d at 168, 513N.E.2d at 106. Subsequently, the claimant filed a petition undersection 19(h) for review. The Commission denied the section19(h) petition finding that there had been no medical evidence ofchange in physical condition or evidence of change incircumstances. Petrie, 160 Ill. App. 3d at 168, 513 N.E.2d at106.

This court affirmed, and although we found thearbitrator's decision to be res judicata, the substantive issuespresented by the claimant's appeal were addressed. Petrie, 160Ill. App. 3d at 170, 513 N.E.2d at 108. The substantive issue inPetrie, relevant to our discussion, was whether an increase ineconomic disability alone was a proper basis for modification ofan award under section 19(h). In Petrie, the claimant arguedthat he was entitled to a more accurate award due to an increasein his economic disability. This court pointed out that theclaimant was not able to cite to any authority that the term"disability" as used in section 19(h) included economic standing. Petrie, 160 Ill. App. 3d at 171, 513 N.E.2d at 108. We did note,however, that in some jurisdictions a change in economicconditions can result in an alteration of an award even if thephysical condition of an injured party had not changed. Petrie,160 Ill. App. 3d at 171, 513 N.E.2d at 108, citing 3 A. Larson,Workmen's Compensation,